Introduction:
Section 3(2) of the Prisons Act, 1894 defines criminal prisoner as “any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court-martial”[1] and Section 3(4) further provides that a civil prisoner “is a person who is not a criminal prisoner”.[2] A civil arrest is defined in the Black’s Law Dictionary as “The apprehension of a person by virtue of a lawful authority to answer the demand against him in a civil action”[3]. Civil detention is therefore imprisonment of a person who has undergone civil arrest.
Procedures related to arrest and detention in a civil prison are dealt with in Order XXI[4] of the First Schedule of the Code of Criminal Procedure, 1908 (hereinafter CPC or the Code), from Rules 30 to 41 and also from Sections 51 to 59. of the Code. There now has arisen a need to review these age-old provisions. A report released by the National Crime Records Bureau in September 2020[5] has reiterated the many issues caused by overcrowding prisons, including civil prisons. It has been stated that 21 states have issues relating to overcrowding of prisons, as opposed to 18 in the previous year and 11 State Governments have been reporting such issues for about five years[6].
In this regard, reviewing the provisions that deal with arrest and detention in civil prisons can shed some light on any future changes which may be made. In this context, a foreign situation of overcrowding jails can also be taken into account to understand what India can do to fare better.
Indian Legislative Provisions on Civil Arrest and Detention
As mentioned earlier, procedures relating to the execution of decrees on arrest or detention in civil prisons are dealt with in Order XXI. The relevant Sections and Rules are briefly described hereunder. Section 10 of the Code defines ‘judgment-debtor’ as “any person against whom a decree has been passed or an order capable of execution has been made”. It is against the arrest and detention of a judgment-debtor that the Code provides for.
Sections 51 to 59 under Part II of the Code deal with the procedure(s) in execution. Section 51 provides for the powers of the Court to order the execution of a decree, the manner, and the grounds for said execution. Section 52 provides for circumstances in which a decree can be enforced against the legal representatives of the judgment-debtor and the subsequent Sections deal with ancestral property liability and separation of estate share. Section 55 of the Code reads “A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts of such district to be detained”[7].
This Section is followed by four proviso clauses, which define certain essentials that have to be met by those officers authorized for making an arrest or detention. The remaining three sub-sections of Section 55 deal with the powers of the State Government[8], procedure when judgment-debtor is arrested during the execution of a decree on money payment[9] , and procedure for when the judgment-debtor wishes to declare himself an insolvent[10]. Section 56 prevents the Court from passing a decree for payment of money when the judgment-debtor is a woman[11]. Section 57 deals with the subsistence allowance (fixable by the States)[12], while Sections 58 and 59 provide for detention and release[13]; release on illness respectively[14].
While Rules 30 to 36 deal with the grounds for arrest, various decrees that the Court can execute and the modes of their execution, arrest, and detention in civil prisons are specifically provided for in Rules 37 to 40 of Order XII of the Code. As per Rule 37, the Court will have to order through a notice (not required if Court is satisfied judgment-debtor will not abscond or leave beyond Court’s jurisdiction) the judgment-debtor to appear before it and show cause as to why he should not be detained in a civil person, as opposed to issuing a warrant for his arrest[15]. Rule 38 provides that the warrant for arrest has to direct authorized officers to bring the judgment-debtor before the Court, except for when the amount to be paid by him had already been paid[16]. Section 39 provides for the subsistence allowance for the judgment-debtor from time of arrest till brought before Court[17] while Section 40 elaborately provides for the proceedings where the judgment-debtor has obeyed the Court order and accordingly appeared before the Court[18].
Overcrowding in Indian Jails
The earlier statistics published in the recent National Crime Records Bureau indicate that overcrowding of civil jails is a serious issue in India. In this context, it would help to go through the provisions which deal with the grounds on which a person can be arrested or detained in a civil prison. These grounds are mainly provided in Rules 30 and 32 of Order XXI, as per which a judgment-debtor can be arrested and detained if the decree is for payment of money[19] or is for specific performance, injunction, etc.[20] These Rules however are subject to Section 51 of the Code as per which the Court can issue an order to the judgment-debtor on application by the decree-holder.
Akin to Rule 37, the decree’s execution is based on the cause shown by the judgment-debtor. This is an additional procedure that can very well be misused by the judgment-debtor in his favor. As to overcrowded jails, the Supreme Court of India in Babu Singh v. State of Uttar Pradesh[21] observed that the Indian justice system suffers from a “slow-motion syndrome” which in turn is against the principle of a fair trial. Reading the aforementioned provisions of the Code, it can be inferred that the “slow-motion syndrome” the Court observed was a result of the multiplicity of procedures in the Code. This issue, even if seemingly minor, has to be addressed.
Foreign Perspective of Overcrowded Jails
The United States of America is a nation in which overcrowding of jails has always been a major issue[22]The Supreme Court of the United States of America has observed in many cases that overcrowded prisons are against the Eight Constitutional Amendment, as per which “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”[23]. In Trop v. Dulles[24], the Court remarked that the prisons being overcrowded are a situation which was to be handled and that maturing societies are marked by decent standards in prisons. The Court also commented that these decent standards are also under the purview of the Eighth Amendment.
In the United Kingdom, arrests and detentions in civil prisons are governed by The Prison Rules, 1999 which is subsidiary to the Prison Act, 1952[25]. Owing to the problem of overcrowding prisons, the Government had launched the Prison Estate Transformation Programme in 2016 but this was improperly implemented. This was indicated by a recent report published by the Public Accounts Committee, as per which the top 10 prisons in England and Wales were already overcrowded by a staggering 147%[26].
Conclusion
The Indian provision providing the grounds for arrest and detention in civil prisons are no doubt comprehensive in nature, but perhaps are so comprehensive that their execution is adding on to the already pressing issue of overcrowded jails in the country. Procedural firmness is no doubt a necessity but precaution has to be taken to ensure that the firmness is not used as a tool to stall proceedings and cases. This is especially needed in a country like India where prisons, be it civil or criminal are already overcrowded. The Supreme Court in its landmark judgment of Hussainara Katoon v. Union of India[27] had observed the need to reduce the number of under-trial people (people who have been convicted but their trial is pending) and also observed that the right to a speedy trial was well under the purview of Article 21 of the Constitution of India. India recently saw the number of overcrowded prisons reaching the highest in ten years[28]. The time has now come to identify provisions that are seemingly comprehensive but further delay the trial process. Civil arrest and detention is just one aspect that has been taken into consideration for this article. The issue of overcrowding prisons, however, extends much beyond civil prisons.
[1] The Prisons Act, § 3(2) (1894) http://legislative.gov.in/sites/default/files/A1894-9.pdf.
[2] The Prisons Act, § 3(4) (1894) http://legislative.gov.in/sites/default/files/A1894-9.pdf.
[3] Civil Arrest, Black’s Law Dictionary (4th ed., 1968).
[4] Execution of Decrees and Orders, Code of Civil Procedure, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[5] Prison Statistics India, National Crime Records Bureau (2020) https://ncrb.gov.in/en/prison-statistics-india.
[6] Vidyan Mohammad Kawoosa, Prison overcrowding in 2019 highest in 10 years, Hindustan Times (Sept. 07, 2020) https://www.hindustantimes.com/india-news/prison-overcrowding-in-2019-highest-in-10-years/story-Mm8VGVG0J12zFvqC9rRFZJ.html.
[7] Code of Civil Procedure, § 55 (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[8] Code of Civil Procedure, § 55(2) (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[9] Code of Civil Procedure, § 55(3) (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[10] Code of Civil Procedure, § 55(4) (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[11] Code of Civil Procedure, § 56 (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[12] Code of Civil Procedure, § 57 (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[13] Code of Civil Procedure, § 58 (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[14] Code of Civil Procedure, § 59 (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[15] Code of Civil Procedure, Rule 37, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf..
[16] Code of Civil Procedure, Rule 38, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[17] Code of Civil Procedure, Rule 39, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[18] Code of Civil Procedure, Rule 40, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf.
[19] Code of Civil Procedure, Rule 30, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf..
[20] Code of Civil Procedure, Rule 32, Order XXI (1908) http://legislative.gov.in/sites/default/files/A1908-05.pdf..
[21] 2 SCR 777 (1978).
[22] Clauda Angelos & James B. Jacobs, Prison Overcrowding and The Law, 478 The Annals of the American Academy of Political and Social Science 101 (SAGE Publications, Mar. 1985) https://www.jstor.org/stable/1045952.
[23] U.S. Const., amend. VIII (1791) https://constitution.congress.gov/constitution/amendment-8/#:~:text=Excessive%20bail%20shall%20not%20be,cruel%20and%20unusual%20punishments%20inflicted.
[24] 356 U.S. 86 (1958).
[25] Prison Act (1952) https://www.legislation.gov.uk/uksi/1999/728/made.
[26] Aina J. Khan, Overcrowded prisons ‘could run out of space’ in next three years, Metro.co.uk (Sep.11, 2020) https://metro.co.uk/2020/09/11/overcrowded-prisons-could-run-out-of-space-in-next-three-years-13254996/#:~:text=Highlighting%20the%20issue%20of%20overcrowding,higher%20than%20their%20intended%20capacity.
[27] AIR 1360 SC 1364 (1979).
[28] Kawoosa, supra note 3.
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