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The prison, it is famously said, holds a mirror to society. The conditions within prisons, to stretch this analogy further, reflect the quality of any democracy. By that yardstick, India needs a hard and harsh soul-search. Not only has our collapsing criminal justice system ensured a mockery of reasonably speedy trials but tardy and often skewed (if not biased) investigations and prosecutions have ensured that undertrials languish unforgotten in our jails, for decades.
The complete shutdown of bail courts during the enforced COVID-19 lockdown, stemming from a medieval conclusion (all governments fell prey to this!) that access to justice is not a basic and essential commodity, has left thousands with no access to regular bail. Our courts have rarely stepped in to ensure thorough investigation and robust prosecutions, or a time-bound conclusion to trials. Of late, however, there has been a hopeful turn. Can this consolidate into long-term systemic gains?
During my recent 63-day-long incarceration in the Sabarmati Mahila Jail, a source of joy and succour were the thousands of postcards that friends and compatriots sent me. Some of these had direct political messages that ended with this one line, “We also demand the immediate recognition of all political and social prisoners and their release from all over the country.” This is a calibrated demand. While the unjustness of long, unaccounted-for jail terms amounts to a denial of basic freedoms for each and all of the undertrials so jailed, the case of the prisoner/undertrial clearly held for her work and views, needs differential treatment.
First, however, the argument for all of those behind bars. The figures are there for all to see. Overcrowded jails, poor hygiene conditions, and little or no statutory monitoring of the state of affairs or ‘conditions’ within. An overall contemptuous apathy of the vast Indian middle-class citizenry on the issue has amplified colonial and post-colonial constructs of the prisoner, especially the political prisoner.
The result is an unhealthy clutch of power held by the jail authorities and bureaucracy over the prison space that inept medico-legal professionals (doctors at hospitals meant to oversee and report health and other conditions) fail to breach. It is in these bleak circumstances, that the May 12, 2021 judgment of the Supreme Court in Gautam Navlakha’s petition seeking bail (which was rejected) and the hearings in July 2021 before a division bench of the Bombay high court (Stan Swamy and Hany Babu’s case) were both stark cases of lost windows of opportunity.
A year and more later, Gautam Navlakha’s plea now, to be moved from solitary confinement where even accessing a book by renowned humorist P.G. Wodehouse proved so difficult and where his health condition, apart from access to reading glasses, has been a source of humiliation and denial of rights, will be heard by the Supreme Court on September 29.
Despite the May 2021 order of the Supreme Court, the Bombay HC had, on April 26, 2022 declined this plea. Para 21 of this order of the Bombay HC is curious as it spotlights the issue of deliberation and critical assessment. It says:
“It is pertinent to note that the Hon’ble Apex Court has observed that in appropriate cases it will be open to Courts to order house arrest. It is observed that the criteria like age, health condition, antecedents of the accused, the nature of crime, the need for other forms of custody and the ability to enforce the terms of the house arrest, would be some of the indicative factors. In our view, the case of the petitioner does not fit in any of the criteria. In the facts and circumstances, we conclude that this is not a fit case to grant the prayer.”
Navlakha’s age – he is 70 – and his health conditions – constantly flagged by family and lawyers – tell a different story.
Statistics and figures from India’s jails and prisons tell a rather sordid tale. More honest and robust monitoring mechanisms would or could bring faces and names to the injustices we inflict within. The death in judicial custody after a long and bitter incarceration of an 84-year-old Jesuit priest beset with Parkinson’s disease (Father Stan Swamy) drew momentary outrage. A physically challenged professor is dying after he was sentenced to life imprisonment in the Nagpur jail. A senior academic from the Delhi university contracted a serious eye infection after he contracted COVID-19 in overcrowded conditions in the Taloja jail of Maharashtra.
While in some of these instances, momentary relief was granted in the form of medical check-ups and hospitalisation, pleas for interim medical bail were mostly deferred – although they were granted in limited cases. Some individuals have finally got bail from the Supreme Court.
In all these instances, the breakdown of trust and transparency between what the jail authorities (read ‘state’) and agencies (read NIA, ATS, state police) were saying and evidence placed by the advocates for the undertrial victims was starkly disparate. Other academics and advocates in jail in the Elgar Parishad case also suffer from comorbidities. Conditions in several of India’s prisons are pathetic with zero or next to zero monitoring by committees statutorily required to do this job.
Should the direst of circumstances alone compel last-minute efforts of redressal by some courts? Many of the undertrials, including some women, in the infamous Bombay blasts case of 1993, could not escape multiple serious ailments – and worse – due to the pathetic conditions in Mumbai’s Arthur Road jail. Some of the health issues outlasted their release from jail and proved to be life-long serious conditions that the unhygienic and unhealthy jail conditions and life bestowed on them. Uttar Pradesh’s jails, veiled behind their high walls and opacity, are rarely visited upon or assessed.
Is house arrest harsh or lenient?
The May 12, 2021 judgment of the SC had then urged courts to actively use the option of house arrest as an option to police custody and judicial custody in cases where “age, health conditions and antecedents of the accused” are a criterion. The court expressed special concern over the overcrowding of jails – on a national average, they are at 118 % capacity – as also the burgeoning costs to the exchequer. Following this order, the Calcutta high court on May 21, in the case of three serving elected officials and ministers of the TMC-led Bengal government ordered house arrest; even allowing the functionaries to perform some official duties under observation.
House arrest as a punitive measure has been viewed differently depending on the socio-political contexts of the time. Prison sentences themselves have been variously applied by colonial powers and elected governments in India depending on the social class and political affiliations of the prisoner. The concept of house arrest, as interpreted by legal anthropologists, incorporates retribution, humiliation and deterrence; there will be some who will still believe that the confinement is too lenient while others believe it is too humiliating.
Given the context of the present discussions – the abysmal conditions of Indian prisons and the absence of political will in proper monitoring – the option of house arrest must be seen as a positive opportunity. Familiarity of the undertrial in their place of residence, the absence of vast distances for family and friends to have real access and the ability to get prompt medical attention must surely bend courts towards actively using and implementing this as an option.
In India, house arrest has been, post-independence, used as a means of restricting movement and surveillance when an individual or groups of individuals are subject to preventive detention. This was also observed throughout the medieval period of history in Europe. St Paul, at the age of 60, was awarded house arrest for two years after he continued his profession as a tent maker and also paid his own rent. Galileo Galilei, the Florentine physicist, philosopher and astronomer, after a second trial in Rome in 1633 was confined to house arrest for the rest of his life. In more recent times in the West, some societies use it post-trial and conviction as confinement with surveillance. Other societies elsewhere in the world employ house arrest to repress political dissent before trial.
The issue of political prisoners
A related issue in India is that no democratic government, save the Left Front in Bengal decades ago, has evolved any legal understanding around the issue of political prisoners. When it comes to attitudes of the state to political ideologies not of the ‘national mainstream’, Communists and Naxalites have fallen foul. Only Bengal engaged with this issue and, in 1992, passed the West Bengal Correctional Services Act that provides not just for residence in correctional homes but, under Section 19(4) special categorisation of a prisoner as a political prisoner. Such a category is required to be kept in separate conditions and treated as such. (According to this law, which came into force in April 2000, any offence committed or alleged to have been committed in furtherance of any political or democratic movement or any offence arising out of an act done by an individual with an exclusive political objective free from personal greed or motive shall be considered as a political offence.)
A crisis such as the one India currently faces must surely breed an opportunity. The raging COVID-19 (2020-2021 and beyond) pandemic has turned the spotlight on Indian prisons and recent hearings in the cases involving journalists, activists and others, have again raised the core issue of prison conditions in general, overcrowding, an absence of accountability and monitoring seriously endangering the prisoners right to health, therefore a right to a life with dignity, an overarching right under Article 21.
Other state and district prisons need to be independently examined to glean what conditions prevail there, what health, reading and recreational facilities are made available to inmates, what is their access to the outside world, family and lawyers etc. Intermittent cases highlight the stark tragedies, the tales in our jails are one of systemic opacity.
Democratic societies constantly evolve as does the shape-structure and allegiance of the state. Through this evolution – which includes shifts in public attitudes and definitions of crimes – value systems also emerge. These sometimes harden, and at other times, expand.
Nelson Mandela’s treatise, “I am Prepared to Die” at the opening of the defence case in the Rivonia Trial, April 20, 1964, holds lessons for India, and the world, today. It explains how only after the African National Congress (ANC) was declared an “unlawful organisation” were members and the leadership compelled to go underground as the apartheid state passed harsher and harsher laws, and used the force of armed forces to intimidate whole populations.
The axiom “Yesterday’s freedom fighter is today’s terrorist” emerged before, resounded then and holds so true today.
Note: This is an updated version of an article that was published in the Indian Express in 2021.
Teesta Setalvad is secretary, Citizens for Justice and Peace.