PIL in High Court Against Uttarakhand Govt's Decision to Post IPS Officers in Prisons

The petitioner has said the move infringes upon both the legal and fundamental rights of those incarcerated.

Mumbai: In an unusual move, the Uttarakhand home secretary issued a government order on February 12 posting five Indian Police Service (IPS) officers as superintendents of central, district and sub jails. Before this notification, to ensure that prisoners do not have to deal with the police while in judicial custody, Uttarakhand, like most other states, would draw its prison officials from a separate state cadre. But the recent order has blurred that line, and many human rights defenders claim that such a move will only increase violative control over prisoners.

A public interest litigation (PIL) has been filed against the government’s decision before the Uttarakhand high court. Petitioner Sanjeev Kumar, a practicing lawyer and rights activist based in Udham Singh Nagar district, has moved the court after five IPS officers were given additional charge of the prisons as senior superintendent at Sittarganj, Haldwani, Haridwar, Dehradun and Roorkee jails. The officials sent on special deputation to the prisons include Ramchandra Rajguru, Prahlad Narayan Meena, Navneet Singh, Shweta Chaubey and Pradeep Kumar Rai.

This decision, contradicting provisions of the Uttar Pradesh Jail (Group A and B) Service Rules, 1982, would give police officials direct access to prisoners beyond police custody. So far, barring the Inspector General-level officials, other prison officials were drawn from the separate state services. The IG prisons are usually IPS officials, but the common argument is that senior officials seldom come in direct contact with prisoners and would not be able to wield pressure.

Kumar says this infringes upon both the legal and fundamental rights of those incarcerated. His petition raises a serious concern of growing violative action against those arrested. “It is widely known that in police custody, violative tactics are used to extract information from the arrested persons. Imagine now if the police officials end up being placed in prisons. This move will prove disastrous,” Kumar says.

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The operations and deputations of both police and the prison department are kept separate on purpose. In jails, the prisoner is under judicial or a magistrate’s custody, and is ought to be kept away from police interference. If the police’s primary objective is to ensure law and order in the region, the prison officials are responsible for the rights, reformation and rehabilitation of those incarcerated. “Thus, the very object of appointment of both the officers, their duties and responsibilities and their training travelled into different concept of jurisprudence (sic),” Kumar points out in his petition.

Torture and human rights violations, both in police and jail custody, is rampant. The reasons for these violative tactics, however, differ. In police custody, “extraction” of confession is one of the common reasons; in jail, the power dynamics change and prisoners are ill-treated mostly because of space and resource paucity. If the police official’s role spills over in jail, Kumar says, the outcome would be deadly. “How does the state plan to ensure that no prisoner is controlled or ill  treated while in jail custody?” he asks. He further adds that the prisoners will continue to remain under the threat and mental agony of being in police custody, even while in jail custody.

A report by the National Campaign Against Torture – a platform for NGOs working on torture in India – states that every day, an average of five persons die in custody in the country. In 2019, 117 people died in police custody while 1,606 deaths were recorded in judicial custody. There has been no conviction so far, even when over 500 deaths between 2005 and 2019 have been due to torture in police custody.

Under Section 167 of the Code of Criminal Procedure (CrPC), an arrested person can be placed in the police custody for a maximum period of 15 days and thereafter she must be placed in the judicial custody. Placing the police in prisons will only extend the person’s police custody, even in jail, Kumar feels.

The petition states: “A judicial discretion has been conferred upon the magistrate to grant police custody or to refuse the police custody and to send a person into judicial custody. However, the aforesaid judicial discretion will remain ornamental as after the aforesaid additional charge being given to the police officer, under any circumstance either sent to policy custody or judicial custody the person will ultimately be forwarded to custody of police.”

Uttarakhand has a total of 11 prisons, with a capacity for 3,540 prisoners. However, as per the National Crime Records Bureau data of 2019, around 5,629 prisoners were lodged across different prisons in the state, taking the occupancy rate to 159% – the third highest after Delhi (174.9%) and Uttar Pradesh (167.9%). Uttarakhand has also reported the highest female occupancy rate (170.1%), followed by Chhattisgarh (136.1%) and Uttar Pradesh (127.3%).

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The Uttarakhand state government’s decision poses several grave challenges, the petition claims. Following Kumar’s PIL, the high court has issued notice to the state home and prison department and directed them to file their responses.

The issue has also received attention from the opposition and is expected to be raised in the state assembly session that starts on March 1. Leader of opposition and senior Congress leader Indira Hridayesh has called the BJP-led Uttarakhand government’s decision both unconstitutional and illegal. “There was no need to bring in such unfounded decision and pitch IPS officials against jail officials. The home department’s decision is both unconstitutional and illegal,” Hridayesh says. She further adds that once the state prisons officials reach a certain seniority, they should be promoted to the posts of superintendent. Hridayesh has announced that she will raise the issue on the floor of the assembly.