Blurb: The article argues for disability-inclusive prison reforms, emphasizing the right to reasonable accommodation and the right to dignity for incarcerated persons with disabilities in light of the dehumanizing treatment of Prof. Saibaba during his imprisonment.

In Part I of this article, the constitutional safeguards provided to the prisoners with disabilities were elaborated upon. However, to bridge the gap between the constitutional promises and implementation, a comprehensive and robust legal structure is required. To dismay, India lacks an effective response to the needs of prisoners with disabilities. This part of the article will unpack the legislative gaps that exist in the laws framed for prisoners with disabilities. Thereafter through a cross-jurisdictional comparative analysis of the legislative frameworks of the USA and the UK, possible policy changes for India would be suggested.

Legislative Gaps and Response

In India, the administrations of prisons fall under the jurisdiction of the State government under Entry 4 of List II of the Seventh Schedule of the Constitution. Ergo, the state governments are responsible for enacting legislative frameworks governing prisons in accordance with the Model Prisons Manual, 2016, and the Model Prisons and Correctional Services Act, 2023. Section 5(3) of the latter affirms the need of institutional design to “facilitate segregation and separate lodging…for attending to special needs of prisoners such as persons with disabilities.”

However, the Prisons Manual does not detail the treatment of prisoners as it does for women and young offenders under Chapters XXIV and XXV respectively. Even the Model Prisons Act, 2023 provides for differential prison facilities for women and transgenders under Chapters X and XI respectively but lacks provisions for persons with disabilities.

Uttarakhand has a chapter dedicated to “Differentially Abled Prisoners” in the Uttarakhand Jail Manual, 2023 and Uttar Pradesh addresses ‘Mentally Ill Prisoners’ under Chapter XXII in the . Though representing a sliver of hope, these provisions are far from enough.

In Uttarakhand, to be eligible for the benefits, an individual must fall within the list of disability, provided under Rule 689 which deviates from the social model of disability. Meanwhile, the Uttar Pradesh Jail Manual instead of prioritizing accommodation to prisoners, operates with the presumption that “mentally ill prisoners” are “dangerous” until the medical Officer declares otherwise. It frames such prisoners as risks rather than individuals in need of specialized support.

Further, a few states, like Rajasthan and Goa, provide for separate prisons for prisoners with disabilities in their respective prison rules though without detailing the manner in which these ‘separate prisons’ will function. Unsurprisingly, most of the States lack specific provisions addressing the needs of disabled prisoners.

Comparative Analysis

Given the gaps in the Indian response, this section will explore the differential approach of the USA and the UK to highlight the deficiencies in the Indian framework and suggest the pathway for reform. The comparison endeavours to identify the operational framework of other jurisdictions to ensure the fair and humane treatment of prisoners with disabilities.

The United States of America

In the USA, protection for persons with disabilities is provided through Section 504 of the Rehabilitation Act, 1973 which prohibits “discrimination on the basis of disability by the federal government, federal contractors, and by recipients of federal financial assistance.” Section 504 is applicable only to the instances wherein federal funds are utilized which led to a gap in protection of the persons with disabilities. To overcome the gap, the Americans with Disabilities Act, 1990 (“ADA”) was passed which prohibits discrimination at the hands of the state and local government programs, including those that do not receive funding. Title II of the ADA mandates the state/local government to provide equal access to state services and programs.

It is to be noted that there do not exist statutory provisions to provide protection to prisoners with disabilities, however, with Pennsylvania Dep’t of Corr. v. Yeskey, the court expanded the ambit of Section 504 and the ADA and applied it to inmates with disabilities. The judicial pronouncements placed an affirmative duty on the state to provide disabled prisoners with recreation, adequate meals and showers, evaluate the accommodation provided in prisons, and exclusions from work release programs. Further, in Goodman v Georgia, the apex court held that Title II of ADA can abrogate State sovereignty i.e. States can be sued for monetary damages insofar the conduct violates the Due Process Clause of the Fourteenth Amendment.

The ADA Regulations under § 35.130 reinforce that prisons cannot deny an inmate with disability the “opportunity to participate” in a service and cannot not offer an alternative that is inferior to that provided to others. In addition, the inmates are to be given aids and benefits to achieve an equivalent level of benefits and accomplishments as others. Incarcerated individuals have successfully contested against the prison officials on account of the lack of adequate medical care and their failure to provide essential medical equipment. These legal challenges are often accompanied by assertions that prison officials have violated the Eighth Amendment of the US Constitution which prohibits cruel and unusual punishment.

The prison officials need not provide accommodation that places “undue financial and administrative burden” or require “a fundamental alteration of the program” which is more than the “modification” that the ADA Regulation requires. It is worthwhile to note that in the USA, the limitation on the rights of prisoners with disability is narrower than the “undue burden” framework followed in India which is vague and undefined.

The prison officials are allowed to exclude prisoner with disabilities only if it is necessary for the safe operation of their activities. The Supreme Court has clarified that the safety valve exists only in instances when the decision is made relying on current medical knowledge and the best available evidence backing the claim.

Margo Schlanger notes that the ADA insists on a high degree of individualization to address the needs of persons with disabilities. Though the prison officials reflexively reject the requests for accommodation, the ADA does not leave the choice of individualization up to them rather requires a “high degree of particularization”.

The United Kingdom

In the United Kingdom, the Equality Act, 2010 requires prison authorities to make reasonable accommodation for inmates with disabilities. When an inmate enters the prison, they are given a handbook regarding their rights to accommodation. This allows them to be acquainted with the seemingly unknown penal system and the rights of the incarcerated and undertrial prisoners.

Instead of courts, the reliance is placed on the administrative protection which is provided by “the Prisons Inspectorate, the Prisons and Probation Ombudsman, and the system of Independent Monitoring Boards.” Once the inmate has the exhausted prison’s internal complaint procedure, the Prisons and Probation Ombudsman caters to their complaints. Moreover, each prison is assigned a Disability Liaison Officer who looks into the needs of incarcerated individuals with disabilities and ensures reasonable accommodation is provided.

Way Forward

While the issue of lack of recognition of the disability of prisoners looms large across Indian prison space, the article attempts to show that the UK and the USA have, to a certain extent, recognized the facet. The USA enforces its statutory protection which is further shielded through judicial interpretation. On similar lines, the UK complements the statutory provisions of the Equality Act with the administrative oversight mechanism. India, in contrast to these countries, while offers constitutional protection to prisoners with disabilities, has failed to translate the same in its legislative response.

India has ratified the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”). Article 13 of the Convention poses a duty on the State to provide procedural and age-appropriate accommodation to people with disabilities to ensure their accessibility to justice. The same principle is enshrined in the Nelson Mandela Rules under Rule 5(2).

Moving forward, India needs to adopt a more inclusive approach modelled on international best practices, including setting clear obligations for prison authorities and establishing oversight and redressal mechanisms. Prisoners with disability face intersectional discrimination due to a combination of grounds that further expose them to vulnerabilities. Incarceration affects people with disabilities disproportionately. To remedy the grave gap, a shift is required in the criminal system from a unidimensional to an inclusive approach to ensure that the social model of disability is embedded in the prison system. The humanization of prisons is necessitated to ensure that changes are made so that a person with and without disabilities is provided with a similar living environment. Incarcerated cannot be treated as objects and in deprivation of reasonable accommodation regardless of the offence committed by them and such a commitment to human dignity and accommodation is required to transform prison cultures.