Guilty Until Proven Innocent
By Tanvi Ahuja
18 October, 2015
The Indian criminal justice system is a handover from our colonial rulers. Though it has evolved over time to claim itself as restorative and rehabilitative, it is retributive in practice. Societal attitudes towards ‘criminals’ are not kind and behind the closed doors of our jails lies a murky picture begging for attention and intervention.
Sadly, the “prison problem” in India has been reduced to one of numbers. And so we have a number of newspaper reports, relying solely on the National Crime Records Bureau for data, drawing our attention to a considerable prison population and overcrowding of jails. Almost 70% (close to 300,000) of the prison population is constituted by under-trials, the largest in the world, and there is disproportionate representation of Dalits, Adivasis, and Muslims.
Our courts have been quick to note the massive overcrowding of jails and passed landmark orders and judgments for access to free legal aid, release of prisoners on bail under Sections 436 and 436A of the Criminal Procedure Code (CrPC), and the right to speedy trial. But despite such orders and recommendations of the Mulla Committee and Justice Krishna Iyer, social tendencies to de-humanize the prisoner have continued. This is evident from the apathy and callousness of the state machinery in its dealings with the prisoner situation.
For one, the detention of persons under Sections 107-110 of the CrPC pertaining to ‘potential’ breach of peace or public tranquillity has fast become common practice. This, despite the Madhu Limaye judgment reiterating that these sections only require a good conduct bond and not preventive detention. There are hundreds of prisoners languishing in jails today, not for any overt acts, but on mere suspicions of dangerous activities that could be undertaken by them.
Further, the D.K. Basu guidelines that govern arrest procedures are actually violated with impunity. The Prem Shankar Shukla judgment finds no meaning in reality with the widespread use of handcuffs, despite orders that even as a prisoner, one is entitled to basic freedom and dignity under Articles 14, 19, and 21. Legal aid services are in a state of despair. Remunerations of state counsel are not in the least bit competitive rendering competent legal aid virtually non-existent. What constitutes effective legal aid in the first place is unknown, for the lack of standardization of legal aid services in the country. If an under-trial is lucky enough to sail through the arrest and bail processes, the ability to furnish sureties puts a big question mark on the prisoner’s release.
The experiences of prisoners in the Tihar jail alone open a Pandora’s Box. The prison industrial complex slowly creeping into our jails might bolster our expectations of economic rehabilitation of prisoners. This however is not supported by the data on state-wise prison wages, which are only a quarter of the prevailing minimum wages, leaving the prisoners’ families and the mandatory victim relief funds in dire straits. Public Interest Litigations (PIL) on this and the custodial deaths of prisoners owing to medical negligence and torture in Tihar are still pending in the Supreme Court of India and the Delhi High Court. Meanwhile lawyers and activists have had to fight tooth and nail with the Tihar Jail authorities for the reformation of the Jail Visitors’ Board to make it objective and receptive to the needs of the prisoners. Even as the jail authorities cry foul over vacant staff positions and abysmal salaries, instances of gang war and jail violence have intensified.
Women and their children, children wrongfully tried as adults, the mentally ill, persons with disability, the elderly, and queer* persons form the invisible category of prisoners. On filing RTI applications with all states and union territories seeking information about the condition of women prisoners and their children with respect to the 2006 R.D. Upadhyay guidelines, the data that was revealed was incomplete and inconsistent. One shudders to even imagine the state of affairs relating to the physical, mental, and reproductive health of women prisoners, and their and their children’s rights to education, adequate nutrition, and health care.
These problems are exacerbated by sub-standard police investigation and delays in filing charge sheets and framing of charges. Not to forget the cunning tactics employed by the State to keep dissenters locked up. The ‘Ors./ Others’ in the name of accused is a ready weapon to keep FIRs open and round up as many people as the police thinks fit.
Branding someone Naxalite is the easiest way to kill freedom of speech and expression. Connecting someone, howsoever remotely with a banned organization, is the easiest way to try the person under our flawed anti- terror laws. It thus becomes acceptable to deny bail to an eight-month pregnant Sheetal Sathe; to confine Arun Ferreira in the anda cell of Nagpur Central Jail; and to continually harass Soni Sori. Targeting human rights defenders- journalists, artists, writers, lawyers, activists- has now become the norm with the tacit approval of the ruling party.
Prisons have historically been closed institutions and access to them has become even more difficult and discretionary in light of the July 2015 Ministry of Home Affairs guidelines. It belies logic that “individuals/ press/NGO/ documentary makers” are only allowed access if the proposed work is towards “prison reform or positive social impact” and required to submit a security deposit of Rs. 100,000 and obtain a “no objection certificate” from the authorities. This goes against our rich tradition of concerned citizens like Sheela Barse who brought forth the myriad issues facing prisoners through their interactions with inmates.
Further, the death penalty continues to be the albatross around the neck for prisoners whose mercy petitions lie pending for years. The latest law commission report advocates for its abolition but not for terror related cases. Clearly, the ‘collective conscience’ of the society continues to take precedence over individual rights.
The Chief Justice Bench in early 2015 in the prison wages PIL questioned the logic behind raising the wages issue when the prisoners’ food, clothing, and shelter were already provided for. This is indicative of the seriousness with which prisoners’ rights are dealt. But our courts more often than not, have managed to uphold, if not implement, prisoners’ rights. The most disheartening aspect however is how the issues of prisoners do not naturally flow into mainstream discourse for greater debate and discussion. This is primarily because of how we as a society understand crime and view prisoners: as inhuman, evil, and guilty until proven innocent. Since the prison population is not a vote bank, it escapes the concerns of the government as well. It has thus come down to a handful of human rights organizations, activists, lawyers, and judges to take the fight for prisoners’ rights forward.
Tanvi Ahuja is a TISS, Mumbai alumna with professional experience in criminology, human rights, and the law. The author can be contacted at firstname.lastname@example.org