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People believe that prisoners are
sent to prison as punishment, and not for punishment. This implies that
the loss of an individuals right to liberty is enforced by containment
in a closed environment. Thus keeping the individual in the custody of
the state, should not, however, have a deleterious effect on him. But
this is, unfortunately, the case to some degree or another in many of
the worlds prisons. Is it possible then to define what is healthy
environment in a prison? Let alone, talking about a prisoners right to
health services that are to be provided to him by the prison
authorities? The answer to this question is that prisoners have
unalienable rights conferred upon them by international treaties and
covenants, they have a
right to health care, and most certainly have a right not to contract
diseases in prison. Prison jurisprudence recognizes that prisoners
should not lose all their rights because of imprisonment. Yet, there is
a loss of rights within custodial institutions, which continue to occur.
Public health policies are meant to ensure the best possible living
conditions for all members of society, so that everyone can be healthy.
Prisoners are often forgotten in this equation. They are in constant
contact with all kinds of people who come in and out of prison every
day. This constant movement in and out of prison makes it all the more
important to control any contagious disease within the prison so that it
does not spread into the outside community.
In India, overcrowding has
aggravated the problem of hygiene. In many jails, conditions are
appalling. At the tehsil level jails, even rudimentary conveniences are
not provided. Prisoners in India are not even tested for specific
infectious diseases, although all prisoners undergo a medical
examination when they begin serving their sentence. No studies of the
prevalence of viral infections among prison inmates have been done at a
national level. India's prison manuals provide for
segregation of prisoners suspected of having contagious diseases. A few
jails have established informal contacts with medical and social
organizations for counseling of inmates to prevent the spread of
infections.
Violence in prison settings has many
causes. Clashes may have ethnic causes, or rivalries between clans or
gangs. The closed, often vastly overcrowded, living conditions also lead
to hostilities between inmates. The tedious prison environment, lack of
occupation of mind and body and just plain boredom, lead to accumulated
frustration and tension. This environment leads the way to high-risk
activities, such as use of drugs and sex between men. Some indulge in
these activities to combat boredom. Others, however, are forced to
engage in them, in a coercive play for power or monetary gain. Risky
lifestyles can lead to the transmission of diseases from one prisoner to
other prisoners, and pose a serious
public health risk if unchecked. Contracting any disease in prison is
not part of a prisoners sentence. This fact becomes even more
significant when the disease is potentially fatal, as is the case with
HIV/AIDS.
The Supreme Court of India in its
landmark judgment in Parmanand Katara vs Union of
India (1989)and others ruled that the state has an obligation to
preserve life whether he is an innocent person or a criminal liable to
punishment under the law. With specific reference to health, the right
to conditions, adequate for the health and well-being of all was already
recognized in the Universal Declaration of Human Rights. The
International Covenant on Economic, Social and Cultural Rights ( ICESR)
furthermore states that prisoners have a right to the highest attainable
standard of physical and mental health.
The minimum standard rules for
prisoners regulate the provision of health care for them. Apart from the
civil and political rights, the so-called second generation economic and
social human rights, as set down in the ICESCR, also apply to prisoners.
The right to the highest attainable standard of health should also apply
to prison health conditions and
health care. This right to health care and a healthy environment is
clearly linked, particularly in the case of HIV, to other first
generation rights, such as non-discrimination, privacy and
confidentiality. Prisoners cannot fend for themselves in their situation
of detention, and it is the responsibility of the state to provide for
health services and a healthy environment.
Human rights instruments call for
prisoners to receive health care at least equivalent to that available
for the outside population. On one hand, equivalence rather than equity
has been called for because a prison is a closed institution with a
custodial role that does not always allow for the same provision of care
available outside. Prisoners are more likely to already be in a bad
state of health when they enter prison, and the unfavorable conditions
therein worsen the health situation. Hence the need for health care and
treatments will often be greater in a prison than in an outside
community. However, providing even basic health care to prisoners has
proved extremely difficult in India, as the health system is chronically
insufficient. In prisons, the human environment is often one of violence
and high-risk lifestyles, either engaged in voluntarily by those
prisoners with positions of power, or forced upon the weaker prisoners.
Prisoners have a right to live in conditions where their individual
safety is guaranteed. It is paramount for the prison administration to
have a thorough knowledge of how HIV is likely to be transmitted in a
given prison. If sexual coercion and/or violence are the main issue,
better surveillance and timely intervention to protect targeted
prisoners must be enforced. HIV-positive inmates should not be denied
access to recreation, education or access to the outside world.
From a strictly medical point of
view, there is no justification for segregation as long as the prisoner
is healthy. Solitary confinement of HIV-positive inmates should be
forbidden. Any restrictions should be exceptional, such as mandatory
testing for particularly risky situations, such as prisoners working as
medical orderlies in hospitals or dental clinics. There may also be
considerations of personal security where, for example, prisoners known
to be HIV-positive request to be kept in a secure unit as they fear for
their own safety.
Both prison reform and penal reform
are crucial elements if the many problems affecting the Indian prisons
are to be resolved. Diminishing the overall prison population will allow
improvements of the physical and working conditions of the prisons, and
help to ensure the security of all individuals in custody. Obviously,
financial resources will have to be allotted to the prison systems as
well. One effective way to curb the rise in prison populations would be
to offer alternatives to imprisonment for non-violent and civil
offenders.
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The
author can be reached at: madhutyagi@legalserviceindia.com /
