The Centre’s new guidelines on limiting access to media, NGOs and private individuals to jails has come under sharp criticism from media and civil society alike. While senior journalists compare the directive to censorship, civil society organisations call it a violation of prisoners’ Constitutional rights.
The move comes in the wake of the over the BBC documentary India’s Daughter, made by Leslee Udwin on Nirbhaya, the Delhi gang-rape victim. The film included a controversial interview with one of the convicted rapists lodged in Tihar jail and was later banned from being telecast in India by the government.
On July 24, the Ministry of Home Affairs issued new guidelines for visiting prison inmates, particularly by media and civil society groups. The new rules require the media to give an undertaking that they would obtain a `no objection certificate’ from jail authorities to publish, broadcast or telecast any article or programme on jails or its inmates, and include a mandatory security deposit.
Reacting sharply to the advisory, Harish Khare, Editor-in-Chief of The Tribune said it was a palpably ill-advised and ill-thought move. “The mind-set behind the advisory belongs to the Soviet era days,’’ he says.
The Commonwealth Human Rights Initiative – an organisation working on prison reforms – describes the move as highly “unreasonable and out of line with prison laws and jurisprudence. If implemented, it would result in an overreach of powers on the part of prison authorities. With its insistence on a hefty monetary security deposit, overbearing surveillance during interviews and stringent censorship of written and filmed material that serve to keep out rather than allow visitors, the advisory violates Constitutional rights of prisoners, freedoms of an independent press and participation rights of the public at large.”
According to CHRI Director Maja Daruwala, transparency is as important as security and her organisation was opposed to the idea of one being traded off for the other. “The government must strike a better balance towards achieving the democratic functioning of prisons that the Constitutional rights promise and the Supreme Court has affirmed,” she said.
The devil in the details
As per the new guidelines, no private individuals, media, non-government organisations or company should ordinarily be allowed entry into jail for the purpose of doing research, making documentaries, writing articles or conducting interviews.
However, permission may be granted to individuals, media and non-government organizations – whether Indian or foreign – wanting to visit jails for research work, making documentaries or writing articles if the state government or Union Territory Administration feels would have a positive social impact or would help in jail reforms.
Those wanting to visit jails will have to seek permission in writing at least 30 days prior to the visit (for Indians), and at least 60 days before the visit for foreigners . For print media, the application may be submitted just 7 days before the proposed visit. The application will be cleared by the Home or the Prisons Department, as the case may be.
The visitors will have to deposit a security deposit of Rs one lakh by way of demand draft or cheque in the name of the Jail Superintendent. The jail authorities can, however, dispense with or modify the security deposit amount in the case of students.
Those wanting to record audio or visuals will be allowed only one camera or audio recorder and will be accompanied by the Jail Superintendent or a senior officer while they are working, and the officer has been authorized to intervene if he feels that the content being recorded is not desirable.
Even worse, all films and recording will be retained by the jail authorities for screening and returned after three days. In case there is any objectionable content, it will be deleted. All content which goes into public sphere will need a `no objection certificate.’ In case of any violation, the security deposit will be forfeited and legal action initiated.
Attack on democratic freedoms
The Press Association, too, has criticised the advisory, calling it an attempt by the government to “control media” and nothing short of censorship. “Just three months back, the government barred media from reporting live from areas affected by Naxal activities,” says Rajiv R. Nag, president of the Press Association, who has called upon media outfits to oppose the advisory tooth and nail. It is a reminder of the Emergency days, he says, adding that the issue was also taken up at the meeting of the Press Council of India on Friday.
According to Sunil Kumar, Editor of Daily Chhattisgarh, a leading Hindi newspaper of Chhattisgarh, the new provision was only another example of the state becoming more intolerant to democratic freedom of any kind. “This is going to suit the media owned by corporate houses who could deposit money for jail visits, and that would be precisely the kind of media which is least bothered about human rights violations and related issues, inside jails or outside,” he says.
Pointing to the legal aspect of the directive, CHRI says, “If the advisory is a knee jerk reaction to the film made by a British filmmaker on the jail interview with Nirbhaya accused, it should be understood that neither the content of the film nor the permission of jail authorities granting it warrants these additional restrictions on documentary filmmakers and researchers.”
What the law says
The prisoners’ right to communication with the outside world has been read as right to life under Article 21 by several Supreme Court judgments. The Supreme Court, in the Sunil Batra v Delhi Administration (1980 SCR), stated: “We see no reason why the right to be visited under reasonable restrictions, should not claim Constitutional status. We hold, subject to discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners’ kit of rights and shall be respected.
In the case of Francis Coralie Mullin v. Administrator, Union Territory for Delhi, 1981, the Supreme Court unambiguously declared that, “no prison regulation or procedure laid down by any prison regulation, regulating the prisoners’ right to have interviews with members of his family and friends as Constitutionally valid under Articles 14 and 21 unless it is reasonable, fair and just”.
In the case of P. Nedumaran vs The State of Tamil Nadu, Rep, 2001, the Supreme Court ruled that “the deprivation of the right of a friend to visit a prisoner is unreasonable and arbitrary… It is no longer a facility or a privilege; it is now elevated to the status of a fundamental right to a prisoner to have an access to his relatives or friends, and similarly, or the right of a relative or friend of a prisoner to interview him”.
Under Article 19(1)(a), the Constitution guarantees to all citizens the right to freedom of speech and expression. The circumstances in which these rights may be restricted are categorically laid down under Article 19(2), which empowers the state to make “reasonable” restrictions on this right only in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Experts point out that the advisory actually contradicts itself by both affirming and denying the merits of two Supreme Court judgments which concern the rights of prisoners to meet visitors and principles for their code of conduct as defined in Sheela Barse Vs State of Maharashtra, 1988(1) BOM.CR.58,etc., and Smt. Prabha Dutt Vs UOI and Others AIR 1982 SC 6.
The judgment in Smt. Prabha Dutt acknowledges the press’ entitlement to exercise its freedom of speech and expression and the right to means of information through the medium of an interview of prisoners but with reasonable restrictions and provided the prisoners are willing to be interviewed.
The Supreme Court in Sheela Barse case has referred to members of the press as friends of the society and public spirited citizens. It sees them as furthering the fundamental rights of undertrial and convicted prisoners who are segregated from society and permits them as citizens to have access to information and interview prisoners.
While placing restrictions on “uncontrolled interviews”, the judgement draws attention to the need for “appropriate attitude” within prisons to raise the standards for communication and necessary safeguards provided in the jail manuals to those found in judicial decisions. The judgment states, “Prison administrators have the human tendency of attempting to cover up their lapses and so shun disclosure thereof. It is, therefore, necessary that public gaze should be directed to the matter and the pressmen as friends of the society and public spirited citizens should have access not only to information but also interviews. In such a situation we are of the view that public access should be permitted”.
The expert view is that the Centre’s advisory also slights Section 40 of the Prison Act 1894 which acknowledges the desire of prisoners for communication and categorically allows admission, in the interests of justice, to those whom the prisoner wants to meet, at proper times with proper restrictions, and allows for undertrials to meet with their duly qualified legal advisers without the presence of any other person.
No provision under existing prison laws or judgments have so far found necessary to seek a monetary deposit for an interview in jail but the 24th July advisory asks for an unreasonable deposit of Rs one lakh that could also get forfeited. Such a condition, if imposed, would in effect create a privilege for a few and underprivilege many by creating an unfair hierarchy between those who can pay and those who cannot, CHRI points out.
As Daily Chhattisgarh editor Kumar puts it, “Indian jails have always been quite inaccessible to media and NGOs since the British days; this is only a new face of the state’s grip over freedom, as documented during Emergency.”