India: Rot In The prisons

By Colin Gonsalves

18 April, 2008 Combat Law

The level of barbarism in a nation's treatment of its prisoners is lamentable in both developed and developing countries and speaks volumes for the values of contemporary civilisation and their concern for the dignity of the human person.

But even by the most retrogressive standards, the treatment of Indian prisoners is the pits. In the land of Gandhi and non-violence, the level of brutality is only matched by the pious and moralistic platitudes of our politicians. Rape, buggery, torture, custody without legal sanction, use of bars and fetters, detention far in excess of the sentence, solitary confinement, the brutalising of children, women and casuals, drug trafficking and prostitution rackets run by the superintendents are a daily routine of prison life. Eyes were pulled out in the Bhagalpur blinding case and batons forced up the anus of prisoners in Batra's case.

If the complete violations of human rights 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 who have no hope of returning may pass. The press, the public and social activists are debarred but the Courts turn a blind eye. There is little prison research and the criminalisation of the prisoners proceeds apace, contributing to the hardening of the offenders and  their physical and psychological breakdown. The Indian State fails to comprehend that it is economically wasteful to have such a large part of the population fettered and unproductive.

 Judicial reforms have been slow - too slow. In the 1970s it was one man - Krishna Iyer, a former Justice of the Supreme Court - who championed the struggle for civil liberties and human rights. Even after his retirement, he continued with renewed fervour. He found himself struggling against the tide of past practices, colonial prison regulations and a defiant lower judiciary that did not support his efforts but in fact sided with the prison administration and the police. In the 70s and early 80s he transformed Indian prison jurisprudence, supported by a few other judges. By the time of his retirement in the mid 80s, he had led India through a decade of forensic change. But he left a sad man, observing the flouting of his decisions by the criminals in uniform. After a while India returned to its former brutal state.

In the cases of  Khatoon and Motiram, the Court had spoken against high bail amounts for poverty stricken accused and 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. Legal aid remains largely on paper with more money spent on committees, reports and seminars than on legal aid itself. The right of the press to interview prisoners has been couched in such vague language, that access is practically denied. 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 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 degree of barbarism practised against prisoners is commoner 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 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 spirit of reform has faded. A new conservatism has taken over. The judicial standards in human rights are uniformly pathetic and secondly that judges in India are 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 perpetuating injustice.