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India: Rot In The prisons

By Colin Gonsalves

18 April, 2008
Combat Law

The level of barbarism in respect of a nation's treatment of its prisoners is perhaps more uniform than we Indians expect. Developed and developing countries alike treat their convicts with a kind of depravity, which speaks volumes for the nature of contemporary civilisation and their attitudes towards the human person.

Applying even the most retrogressive standards, Indian prisoners are the pits — a level of perversity matched only by our pious, moralistic and sanctimonious preachings abroad. In the land of Gandhi and non-violence, prisons remain depraved and brutish. Internally the prisoners rot.

Rape, buggery, torture, custody without legal sanction, bars and fetters, detention far in excess of the sentence, solitary confinement, lunacy, the brutalising of children, women and casuals, drug trafficking and prostitution rackets run by the superintendents are but the daily routine of prison life. Pulling out eyes as in the Bhagalpur blinding case or the pushing of batons up the anus of prisoners as in Batra's case is perhaps Sunday's schedule.
If the complete absence of human rights moorings in India has escaped notice, it is only because the State has through law and lathi shrouded the prison system with an iron curtain through which only those may pass who have no hope of returning. And while the press, the public and social activists are debarred, the Courts turn a blind eye. While crores of rupees are spent in esoteric research of dubious standards with manuscripts thrown into the dustbin after the degrees are awarded, not a thing is done about prison research. As a consequence, the criminalisation of the prison administration proceeds apace and is the main factor contributing to the hardening of the offender and to the inmates' physical and psychological breakdown.

Apart from the human rights issue, the Indian State has so little intelligence that it cannot comprehend that in purely bourgeois terms it is neither economically feasible nor practical to have such a large part of the population fettered and decapacitated.

Judicial reforms have been slow - too slow. In the 1980's it merged with the forenso-personal history of one man whom all associated with the struggle for civil liberties and human rights must stand up and applaud - Krishna Iyer, a former Justice of the Supreme Court who even after retirement championed the cause with renewed fervour. His decisions describe his struggle against the tide of foul precedent, colonial prison regulations and a defiant lower judiciary not only unwilling to accept his views but also uniformly subservient to the prison administration and the police. In the Seventies and early Eighties he transformed Indian prison jurisprudence and a few other judges inspired by him contributed to this change. By the time of his retirement in the mid eighties, he had led India through a decade of forensic change. But he left a sad man noticing in powerless retirement the flouting of his decisions by the decision of the criminals in uniform. The passage of time settles all things and India returned to its normal state - the eccentric has passed on.

The ebb tide set in. Whereas in the cases of Hussainara Khatoon and Motiram, the Court had spoken against high bail amounts for poverty stricken accused and had recommended their enlargement on bail on personal bond and even without sureties, today millions of people are jailed pending trial because they are either too illiterate to apply for bail or too poor to furnish the bail amount. Notwithstanding Hoskot's case legal aid remains on paper with more money spent on committees, reports and seminars than on legal aid itself. Sheela Barse's case likewise indicates the flagging interest in public interest matters. Now the right of the press to interview prisoners has been couched in a language as vague as to practically operate against the press. Despite Khan's case, prisoners are often denied access to newspapers and books. Despite Walcott's case the awarding of prison punishments is like the emperor's fiat. Despite Mallik's case children are brutalised on par with adults. The International Year of the Child saw seminars organised and films made but no children released.

All the recommendations laid down in Batra's case and Kaushik's case are ignored. Overcrowding has increased many times over. The Board of Visitors is a bloody farce. The Prison Manual and other regulations are kept top secret and even defending advocates find it impossible to lay their hands on one. Liberal visits by family members depend on bribe money.

The level of barbarism in respect of a nation's treatment of its prisoners is perhaps more uniform than we Indians expect

The ombudsmanic task of policing the police that Krishna Iyer advocated is now an impossibility. The standard minimum rules for treatment of prisoners are not only not followed but the rules cannot be found, Section 235(2) 248(2) of the Criminal Procedure Code in respect of more humane sentences is overlooked despite Giasuddin's case and Santa Singh's case. Despite Varghese's case poverty stricken, indigent debtors are jailed. Notwithstanding the Prison reforms enhancement of wages case convicts perform slave labour on notional or illusory wages.

If, as in Nandini Satpathy's case, the methods, manners and morals of the police force were a measure of a government's real refinement, ours would be a tyranny. Censorship of correspondence contrary to the directions in Madhukar Jambhale's case, the solitary confinement contrary to the directions in Sunil Batra's case thrive. Likewise, bar fetters are commonly used. And the accused are tied together like cattle and paraded to Court through the streets in defiance of the decision in Shukla's case. The little Hitler found lingering around Tihar Jail in Batra's case is now fully grown and well fed. Despite Sah's and Hongray's case compensation is rarely awarded. In the face of Veena Sethi's case, mentally disturbed persons are maltreated and rendered insane. The 'hope and trust' placed in the prison administration and the police by the Supreme Court have turned out to be a joke. Even after Barse's case women's rights are not implemented. Despite Nabachandra's case remand is done as a matter of rote. Nothing changes in India - ever.

As we age, Krishna Iyer's passions recede in the memory of bench and bar. A new conservatism has taken over. Once again judicial apathy and unconcern fuel prison sadness.
His decisions are largely, therefore, of academic interest, perhaps the only merit of the decisions being, as Justice Hughes once said, that they are, "an appeal to the brooding spirit of the law (and) to the intelligence of a future day."

They display overall certain common trends and characteristics. Firstly, that judicial standards in human rights are uniformly pathetic and secondly that judges in India are universally unwilling to punish prison officials and policemen even in the face of cast iron evidence of major offences committed by them.

Judicial reluctance, administrative callousness and the absence of any State recognition of white collar crime, takes India rapidly towards the precipice where the working class find themselves brutalised and isolated and the justice system is seen by all - as it essentially is - as a class weapon perpetually perpetrating injustice.

As this happens the story foretold by Krishna Iyer in Veena Sethi's case may well come true; "One day the cry and despair of large number of people would shake the very foundation of our society and imperil the entire democratic structure. When that happens we shall have only ourselves to blame.


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