COMBAT LAW
Hail jail, no bail!
march-a
april 2008
VOLUME 7, ISSUE 2
Editor
Colin Gonsalves
Managing Editor
Harsh Dobhal
Senior Associate Editors
Suresh Nautiyal
Abid Shah
Associate Editor
Sujata Krishnamurthi
Sub-Editor & Correspondent
Anchal Khurana
Correspondents
Mallika Iyer (Mumbai)
Sheela Ramanathan (Bangalore)
Geetha D (Chennai)
Special Contribution
Vijay Hiremath, Rebecca Gonsalvez
Illustrations
Malik Sajad
Shyam Jagota
Layout
Bhagat S Rawat
Deputy Manager (Circulation)
Hitendra Chauhan
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opinions expressed in the articles
are those of the authors.
here was a time when the principle ‘bail not jail’ guided the prison
administration in this country. Now it is the opposite – ‘jail not
bail’. The original principle was based on an understanding that the
vast majority of those incarcerated came disproportionately from the
poor, particularly Dalits and Muslims. If the criminal justice system was
slanted against the poor and the doing of justice in a substantial sense was
nigh impossible, to lessen the discrimination accused persons were not to
be put behind bars unless it could be shown that he would abscond or
otherwise interfere with the administration of justice. All this has now
been thrown to the winds. In a mad frenzy, policemen and judges are
putting accused persons behind bars in ever increasing numbers and
keeping them there by denial of bail.
The overwhelming majority of the prison population are undertrials.
They will stay there for many years waiting for their trials to begin. Many
of the persons languishing in jail are accused in bailable offences. This is
because legal aid from the point of arrest guaranteed in many decisions
of the apex court is not available. Thousands of accused persons languish
in jail despite being granted bail because their surety amounts are too
high.
As a result the prisons are over populated by 250 percent. In some
prisons, persons sleep in shifts occupying the 3 x 6 feet space on the floor
reserved for them. Overcrowding to this extent is per se cruel, inhuman
and degrading. No undertrial symbolises this perverse fascination of the
State with the unnecessary incarceration of people awaiting trial, than Dr
Binayak Sen, a pediatric specialist who was working in the most backward tribal regions of Chhattisgarh when he was arrested on the “terrorist” charge that he had carried a letter from a Maoist in prison to some
person outside. Dr Sen had always functioned openly as a doctor. The
police raid of his premises found nothing incriminating. He stays with his
wife and children in Raipur. There was no chance whatsoever of him
absconding. He would have cooperated fully with the prosecution. But he
has now been in jail for about a year. In jail, the authorities gave him a difficult time when he tried to get reading material. His children have lost
their father, the tribals have lost their doctor and the human rights movement has lost their leader. And the nation has lost its sense of right and
wrong.
What should be done? Piecemeal reforms will have no impact because
the rot is very deep and pervasive. What is needed is radical reform but
pending that the State could at least make a radical one-time gesture. On
Republic Day or Independence Day the State could release tens of thousands of poor persons, Dalits, Muslims and women accused in offences
other than grave crimes. A large-scale release of women accused or convicted of the offence of murdering their husbands could be done. A study
of the women languishing in prison will show how unjust our criminal
justice system is. Many have killed their husbands as a result of the ‘battered women syndrome’ where the husband came home drunk and beat
his wife and children day after day. How many women languish in
Indian prisons today on the charge of murder in failed attempts to commit suicide where the baby children in their arms perished and they survived? How many Dalits are in jail resisting atrocities and the forcible
taking of their lands? A sociological study of those languishing in prisons
will affirm what everybody knows, that the criminal justice system victimises the victim. That the rich can get away with every conceivable
crime by bribing the police and the prosecutor is common knowledge.
If the prison system was made to terrorise the working people it has
succeeded in doing so. It is perceived as an engine of oppression. Like the
Indians feared the British, the poor today fear the Indian criminal justice
system.
T
Colin Gonsalves
C O N T E N T S
LETTERS TO THE EDITOR
5
FA R M E R S U I C I D E S
MANIPUR DIARY
Where the rifles rule
Assam Rifles is beyond the law as it lets loose a reign of terror
Meihoubam Rakesh
10
CHILD RIGHTS
Arresting child abuse
Victims of child sexual abuse stand very little chance of getting
justice and moving on with their lives
Arun Kumar Sahoo
12
LAWS & JUDGMENTS
From valour to Hunger
6
Once famous for their role and sacrifices in the freedom struggle, the
people of Bundelkhand are caught
amid one of the worst droughts in
its history
Bharat Dogra
Defending the right to legal aid
A human rights lawyer obtains a landmark order that upholds
the constitutional right for legal aid in case of indigent and
poor undertrials
15
PRISON PLEAS
Letter from Tihar
17
A Kashmiri youth, Parveez Ahmad, narrates in a letter how police turned him
from a gentleman to ‘bombman’
In defence of innocence
A woman, Shanti Devi, serving a 20-year-long sentence writes to
President Pratibha Patil from Mirzapur Jail in Uttar Pradesh and
seeks reprieve
20
PRISON REFORMS
I N V E N T I N G T H R E AT S
Uttarakhand: Inventing Naxal threat
A team of rights group that visited Haldwani to meet Prashant Rahi,
a jailed journalist, was turned away by muscle flexing state
administration that swears to stamp out Maoist threat
Radhika Menon
21
A daughter’s plea
Innocent journalist, Prashant Rahi’s daughter Shikha Rahi writes
about her father’s travails in the Uttarakhand jail
23
TA L E S F R O M P R I S O N
Inside Ghaziabad jail
What happens behind the formidable walls of jails is simply a
mockery of the law where human beings languish in humiliating
and degrading slavery
Kumar Baadal
24
My days in prison
A small journalist’s sojourn through the big, bad world called
Delhi’s Tihar Central Jail unfolded an entire savage world
Iftikhar Gilani
26
2
32
The need for prison reforms has
conveniently been forgotten after
Independence, leaving this raj relic
to rot and become virtual hell
Dr Upneet Lalli
INTERVIEW
S TAT E R E P R E S S I O N
‘M’ for Muslims
A Kolkata power corporation employee, Aftab Alam Ansari points
to a new trend where police indiscriminately picks up Muslims to
brand them as terrorists
Aanchal Khurana
Primitive prisons set
the clock back
31
Where’s there’s a will, there’s
a way
37
Kiran Bedi talks of her tenure as
prison chief and efforts made by her
to ameliorate the lot of poor and
hapless inmates to
Aanchal Khurana
COMBAT LAW MARCH-APRIL 2007
C O N T E N T S
ROT IN PRISON
Where kicks-and-blows rain
Police lock ups are products of a misplaced ethos vis-à-vis police,
crime and punishment in India
Abid Shah
43
Jails that fail justice
Shabby, overcrowded, heartless and subhuman, prisons in India
defeat the very purpose set for them under the law
Vijay Hiremath
46
RIGHT TO DEFENCE
Taking prisoners off
the eyes of law
40
Lawful custody warrants anybody
facing trial to be made present
before a magistrate every two
weeks. Yet this is being avoided
RK Saxena
Arm poor with legal aid
Lack of an institutional mechanism to ensure legal assistance for
poor continues to afflict the justice delivery system
Rebecca Gonsalvez
48
WOMEN & PRISONS
Worst jail jitters trap women
Among all sorts of prisoners women become the worst sufferers
once they land up in prison
Sheela Ramanathan
52
LAWS & JUDGMENTS
Landmark orders on prisoners’ plea
Some of the important prison related case laws emanating both
from Supreme Court and High Courts
57
RIGHT TO DIET
Lock-ups ought to look up
42
Police lock-ups are in a pathetic state
Grace Pelly
Lashes of hunger
A study of prison diet system that has served as a tool of
punishment continues robustly
Murali Karnam
61
P R I S O N AT R O C I T I E S
Hunger strike in AP jail
A report on Kadappa central Jail by the Commonwealth Human
Rights Initiative team that visited the jail
65
PRISONERS’ RIGHTS
Discipline and punish
67
Respect for prisoners' rights is a requirement of the Constitution
Yogendra Aldak
Video linkage leaves prisoners in cold
Video linkages between jails and courts in Andhra Pradesh have grossly curtails requirements
of law vis-à-vis rights of undertrial since it robs him of counsel’s presence and help
Murali Karnam
70
Women prisoners’ rights
Women prisoner’s rights leave much to be desired on the part of the government and prison administration
Grace Pelly
72
Justice Express leaves many stranded
Despite miscarriage of justice on the fast lane of fast trace courts has not deterred UPA higher ups to
continue with their predecessors favourite
Vijay Hiremath
75
Victims of Circumstances
While responding to a PIL, the Supreme Court delivered a set of guidelines to protect the rights of
women prisoners and their children in jail
Debashis Banerjee
77
www.combatlaw.org
3
C O N T E N T S
JUVENILES
REHABILITATION
Rehabilitating undertrials
83
The Prayas team shares its experiences on its work within the criminal justice
system it has adopted to reintegrate ex-prisoners back into the community
HEALTH IN PRISON
Where HIV virus festers
87
Jail custody has among other things been festering ground for HIV and AIDS
Sujata Krishnamurthi
Juveniles and jails
80
Despite legislation to protect juvenile prisoners, children continue to
languish in prisons
Maharukh Adenwalla
FOREIGN VOICES
Little girl’s long haul
92
Story of a minor girl from Congo, who fled home in the wake of turmoil in her
country but ended up in an observation home of Delhi’s Tihar Jail and later at a
custodian’s place
Vulcanina
TRIAL & EXECUTION
REALITY BYTE
Waiting for the hangman’s noose
94
Executing Perarivalan would be a retrograde step for human rights in India
Thiagu
‘Take juvenile off the
gallows’
Tall talk of Arthur Road
jail SSP
86
In Bombay Central Prison, better known
as the infamous Arthur Road Jail are in
short supply and tussles between gang
members are frequent
Sujata Krishnamurti
96
Human rights lawyer Colin Gonsalves writes
to President of India to seek pardon or
commutation of death sentence passed by
trial court and confirmed by Supreme Court
in the famous Om Prakash Lakra case who
as per his school certificate was a minor at
the time of triple murder allegedly committed by him
WORDS & IMAGES
One-woman-show
99
Kiran Bedi’s stint as Inspector General of Police (Prisons) in Delhi might have been short-lived, yet she wrote rather a
long account of this in what looks like one-upwomanship
Aanchal Khurana
Hope and Despair in Iran
Nobel laureate Shirin Ebadi writes about what befell Iran and Iranians in her book Iran Awakening
Mallika Iyer
101
GUEST COLUMN
Ebb and flow of greed!
A discredited hydroelectric project that was discarded 15 years ago has been revived in Nepal
Gopal Siwakoti ‘Chintan’
103
Printed and published by Colin Gonsalves for Socio Legal Information Centre having its office at 576, Masjid Road, Jangpura,
New Delhi 110014 Printed at Shivam Sundaram, E9, Green Park Extension, New Delhi, 110016
Editor: Colin Gonsalves, E-mail: [email protected], [email protected]
Website: www.combatlaw.org
4
COMBAT LAW MARCH-APRIL 2007
L E T T E R S
Increasingly, activists in many
parts of the country are being
detained not for specific actions or
crimes, but for their supposed
political views. Mr Kutty's arrest
came in the wake of several dangerous attempts by the central and
state governments to suppress
democratic voices and organisations in the name of curbing
Naxalism. Though Mr Kutty has
been released on conditional bail --
after going on hunger strike himself
and after demands for his release
from many quarters -- now the
false, trumped up charges against
him need to be dropped unconditionally and his periodical allowed
to function.
Nagraj Adve/ Harish Dhawan
Secretaries, People's Union for
Democratic Rights, Delhi
Email: [email protected]
Bitter truth of acid attack on women
Dear Editor,
Suppressing ideological opinions is fundamentally
undemocratic
Dear Editor,
People's Union for Democratic
Rights (PUDR) condemns the arrest
of Mr Govindan Kutty, editor of
People's March, who was later
released after being given bail by
court. Yet his release is subject to certain restrictions vis-à-vis his movements. People's March is a legally registered publication that has been
appearing for seven years, reporting
regularly on various movements taking place in different parts of the country. The ban put on his magazine continues despite the bail given to him.
Mr Govindan Kutty was taken
into custody near Kochi on
December 19 last year and interrogated by the police for an entire day
and then sent to judicial custody
where he had to resort to hunger
strike to protest his arrest. He was
detained under charges of sedition
and under the draconian Unlawful
Activities Prevention Act, which is
simply condemnable.
PUDR has for long held that the
suppressing ideological opinion of
whatever variant by the State, whether
Leftwing or Right, is fundamentally
undemocratic and harmful to the larger interests of society in the long run.
www.combatlaw.org
I had always heard about acid
attack stories and read about them
in magazines but after reading the
article on it in Combat Law I
realised this bitter truth. There are
so many cases of acid attacks but I
wonder why the media do not
cover them properly. I also read
about another acid attack case in a
magazine long back but it was not
covered either on television or in
newspapers. People, especially
men, would use
anything and
everything
against women,
something even
as vague as
acid!
I agree with
what is written
in the article
about
acid
attacks as gendered
sexual
violence. They
use acid as a
weapon against
women to please their ego.
Acid attacks on women happen
in most cases where women refuse
to act or do according to the
whims of men. And then these
men cannot tolerate a 'no' from
women and in order to teach a lesson to these women, they take to
such actions. It is a shame that men
objectify women and stoop so low
to harm them. Men want to exer-
cise their power on women
through rape, assault, molestation,
murders and acid attacks. I wish
they utilise this 'creativity' in other
areas for a change like benefiting
society!
There are court judgments,
there are laws but they are just on
paper like for any other issue. The
courts need to take stringent
actions against such men. If the
traffic laws can be effective in a big
city like Delhi then why can't we
protect women everywhere? It is
just not physical injury
which is caused in an
acid attack, it is much
more than that. It is loss
of health and livelihood,
mental trauma, torture
and stigmatisation in the
society. A woman might
muddle through discrimination and exploitation, but what would she
do in such cases?
A woman's identity,
her confidence, her
courage, her life everything boils down to nothing. I am so perturbed after reading this article.
I just hope that some day men
might realise what they have been
doing to women is not even close
to something which can be called
humane.
Priyanka
Legal Officer
HRIDAY
5
FA R M E R S U I C I D E S
eath and devastation stalk
Bundelkhand region of UP in
the wake of severe drought.
In recent weeks several efforts have
been made at various levels to draw
attention to appalling conditions and
extreme distress faced by farmers of
the area. The state government has
already declared all the districts of
this region — Jhansi, Mahoba,
Hamirpur,
Jalaun,
Lalitpur,
Chitrakoot, Banda — to be drought
affected.
This report is about the grim conditions the entire region is grappling
with. It is based on talks with the
people in over 35 villages spread
over all the seven districts. Some of
the highlights of the report are:
D
Suicides and sale of children
Four years of drought have caused
extreme distress to people. The
Kharif crop has suffered extensive
damage. In village after village, we
were told by farmers that they were
not able to recover their seeds. A
huge part of the normal Rabi crop
has remained unsown due to lack of
moisture,
rains
and
overall
resources. Migration from villages
has increased as waves of migrant
workers have left after July, particularly after Diwali festival. Many village homes are locked up as entire
families have left. Elderly people
and many women who have been
left in villages sometimes face very
difficult times as migrants are not
able to remit money home from their
paltry earnings. Even workers in
poor health have migrated as of
making a living has been becoming
difficult back home. Members of
well to do farmer families too are
forced to join the streams of
migrants to places like Delhi,
Punjab, Haryana, Gujarat and
Mumbai besides some cities of UP.
Migrants work as construction
Once famous for their role and sacrifices in the freedom
struggle, the people of Bundelkhand are caught amid one
of the worst droughts in its history. It is spelling death
and disaster for the poor of the region. Yet there can be a
way out, writes Bharat Dogra after an extensive survey
of the region
From Valour to
HUNGER
6
workers, factory hands, brick kiln
workers, quarry workers and hawkers. Some of them face such great
hardships at their new work places
that they cannot afford the expenses
to come back home when they need
to do so. Many of them work and
live in hazardous and exploitative
conditions.
Hunger and malnutrition exist on
a massive scale. The overwhelming
majority of people are living on staple cereal with salt and chutney. Use
of pulses, vegetables and milk has
declined. Many of them cannot get
enough of even roti and salt to be
able to fill their stomach. Many of
them have only one meal a day. Such
harsh conditions for a long time have
led to under-nutrition, chronic
hunger and even hunger deaths.
Several starvation deaths have been
reported. Seven people died in village Nahri alone in Banda district. A
hunger death takes place because of
chronic under nutrition and malnutrition as the weakening body
becomes vulnerable to many ailments. In Bundelkhand, this is rampant and ill fed farmers are slowly
and steadily dying.
Several hundred suicides of farmers and other villagers have been
reported in recent years from
Bundelkhand. It is a fact that farmers
have suffered heavy damage in
recent years. Indebtedness to banks
and moneylenders has increased
rapidly to a level where there is no
possibility of being able to pay back
the loan. These farmers are unable to
meet their family expenses which
they perceive as the most essential
such as the expenses of marriage of
daughters. In these villages families
have been forced to postpone marriages of daughters. It is difficult for
farmers to see recurring loss of crops
where they are not able to recover
enough to run their most essential
COMBAT LAW MARCH-APRIL 2008
FA R M E R S U I C I D E S
bare expenses despite working so
hard in the field. It is in this context
that many reports of suicides by villagers as well as reported cases of
deaths caused by shock should be
understood.
Water shortage already exists in
several villages and it is quite clear
that a serious water crisis is most
likely this summer. Farm animals
particularly cows have been left to
roam and fend for themselves as
farmers just don't have any fodder.
Fodder and water needs of farm animals deserve a lot of attention. In
Jigni village of Hamirpur district
once prosperous farmers said that
they have lost several cows and they
are willing to give away cows free as
they cannot see them dying before
their eyes.
While villagers needs have at
least been discussed, problems of
urban poor are entirely ignored.
Issues such as deaths of urban poor
caused in the cold wave should also
get attention. After all those who die
in such tragedies are generally the
rural poor who have migrated due to
the distress conditions in the villages.
In cities anti poor steps should be
avoided. On December 10, 2007, the
tragic case of sale of two children by
a rickshaw puller in Banda district
was reported. This man Govind had
earlier been earning well as a tea vendor and when his tea - stall was
demolished, he was driven to
extreme poverty culminating in the
www.combatlaw.org
sale of four-month-old Chandan and
eight-year-old Shankar.
Factors behind disaster
We asked many elderly people if
they had seen such prolonged and
Water shortage
already exists in
several villages and
it is quite clear that a
serious water crisis is
most likely this
summer. Farm
animals particularly
cows have been left
to roam and fend for
themselves as
farmers just don't
have any fodder
serious drought in their life earlier
and they replied in the negative.
Even before this, phenomenon such
as untimely rains and very limited
scattered rains had started. So much
so that within a panchayat one part
gets some rain and another doesn't.
The damage from hailstorms has also
been unprecedented as hail brought
stones weighing over one or two kg
(half kg were more common) rained
and damaged roofs of many
dwellings. Near Jigni Village a long
stretch of land has suddenly erupted
making very deep holes in land. All
these unexpected weather problems
may be linked to climate change.
However the role of local factors
such as deforestation should also be
emphasised. Forests across vast areas
have been badly damaged in recent
decades. Ecologically devastating
mining practices have ravaged
greenery and damaged water
aquifers badly, apart from increasing
land instability. Indiscriminate use of
chemical fertilisers and pesticides
has played havoc with the fertility of
land.
Water management has ignored
the basic principles that always
recharge of water has to precede
large-scale withdrawl of water. With
the arrival of hand pumps and tube
wells maintenance of traditional
water sources including tanks and
wells was ignored. Tank systems
which had been preserved for centuries as models of water management most suitable for this region
were neglected, encroached upon,
eroded and destroyed. At the same
time maintenance of canals system
was neglected. Canals remain silt
7
FA R M E R S U I C I D E S
laden, full of weeds, and broken at
many places. Irrigation needs of tailend villages were particularly
neglected while the influential and
prosperous farmers in upper areas
used guns and muscle power to
grow even water intensive crops in
situation of water scarcity. Sudden
and unannounced release of water
from dams caused floods and great
loss to people in years of normal and
even high rainfall.
Large-scale corruption led to
funds meant for development being
misused on a massive scale. Check
dams broke down in the next rains.
Huge water supply schemes
remained unutilised. Dams of highly
dubious merit were constructed and
even more suspect river - links were
planned as these bring huge contracts while cost effective small-scale
schemes were ignored. Projects and
constructions were completed hurriedly and payments made without
considering how much the people
had actually benefited. Even land
reforms were marred by corruption.
In addition forest department
claimed ownership of land which
had been given to a large number of
landless people. Some poorest and
landless communities were most
neglected. Big landowners not only
exploited them but also took loans in
their name. The entire system of
development loans was reduced to a
huge racket. Villagers were driven to
taking unviable loans, paying corruption money in the bargain to middleman and officials, which they
could never hope to pay back. This
was the particularly the case with
tractor loans.
Thus all these factors were
already leading to water shortages,
deforestation, ecological ruin, poverty and indebtedness, hunger and
malnutrition. So when a prolonged
and serious drought came the situation quickly deteriorated. On the
other hand if ecologically protective
measures, good water management
and good governance had existed,
the extreme distress that followed
could have been avoided.
Sad to say, even after the drought
situation started becoming acute
cases of serious corruption continued
to be reported from Public
Distribution System (PDS) and rural
employment works, while mid day
8
meals and anganwadis or Integrated
Child Development Services (ICDS)
functioned poorly at several places.
Massive corruption in PDS has
already been exposed at several
places. The NREGA provided an
excellent opportunity for providing
relief to people, implementing essen-
Large-scale
corruption led to
funds meant for
development being
misused on a
massive scale.
Checkdams broke
down in the next
rains. Huge water
supply schemes
remained unutilised.
Dams of highly
dubious merit were
constructed and
even more suspect
river - links were
planned as these
bring huge contracts
while cost effective
small-scale schemes
were ignored
tial work like water conservation and
avoiding distress-induced massive
migration.
Unfortunately
the
schemes failed to achieve these aims
during the financial year 2006 -07.
Only Rs 10 crore to Rs 25 crore were
spent on NREGS in each of the seven
districts although each district needed and deserved at least Rs 100 crore.
This year there are signs of some
increase but it is still inadequate.
Large-scale migration shows how the
aims of the scheme could not be
achieved. However, it is good that in
many places where we inquired a
wage of Rs100 or near this amount
was actually being given.
Hope amid adversity
However not all is dismal or depressing. At the official level, there are
some sign of improvements. New
schemes such as grain banks for the
poor and community kitchens have
been announced. There is talk of a
'Bundelkhand Package' to make
available more funds for relief as
well as long-term development.
Some officials have worked hard to
speed-up relief and to check malpractices.
It is particularly heartening to see
that within their meagre resources,
some voluntary organisations have
done praiseworthy work to provide
protection from drought in some villages. For example in Laxmanpura
Village (and two nearby neighboring
villages) of Madhougarh tehsil in
Jalaun district, Parmarth has implemented a natural resources management project which has provided soil
and water conservation works,
besides building check dams. After
implementing this work painstakingly with the cooperation of people, particularly women, in this village Dalit
small farmers could take advantage of
a government schemes that provides
assistance of Rs 1 lakh for setting up
a tube well. Four tube wells have
come up when the precondition for
water recharge was taken care of so
that the underground water table
could be saved from falling. The
result is that when there is no crop in
nearby villages, Dalit farmers in
Laxmanpura village are taking two or
in same cases even three crops a year.
In other villages there is large-scale
migration but Laxmanpura has
turned out to be an exception where
COMBAT LAW MARCH-APRIL 2008
FA R M E R S U I C I D E S
people are among other things also
healthier and better nourished. This,
indeed, holds hope for other villages
as well. In Manikpur block of
Chitrakut district another voluntary
organisation ABSSS has done excellent soil and water conservation
works, construction of check dams,
repair of tanks, creating new tanks at
several places like in Tikariya, Itwaan,
Managawan, Pushakarini, Kekramar,
Harijanpur, Sukhrampur etc. These
have been providing badly needed
relief to people in times of distress. Its
idea of low cost protection of natural
sources of water for purpose of drinking has been providing relief to people particularly Kol tribals even in
times of acute water scarcity.
People have taken up several initiatives on their own. From Mahoba
district there are reports of initiatives
of people to repair and deepen old
wells while also constructing new
wells. Mata Prasad Tiwari of Meegni
village of Jalaun district has planted
nearly 15,000 trees (with some help
from Parmarth). He hopes that 5,000
trees will start yielding fruit within
two years. Check dams in the same
village have also contributed to
water conservation. Media has
played an important and useful role
in drawing attention to the extreme
distress faced by people.
Need for action
As it appears most likely that
Bundelkhand is headed for a serious
water scarcity in the summer of 2008,
it is important to prepare a plan of
action as early as possible which is
based on reducing distress related to
scarcity of water and food as much
as possible. Providing relief from
hunger and thirst to human beings
as well as animals should be the
main focus of this action plan. As
part of the package or otherwise,
adequate resources should be made
available for this purpose. Allocation
under rural employment guarantee
scheme needs to be stepped up to at
least Rs 100 crore per district per
year. Many practical problems which
hinder the progress of this scheme
need to be sorted out. As more
resources flow greater transparency
has to be observed to ensure that the
old corruption networks do not grab
a slice of these resources even in
these times of grave distress. The
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relief funds given by the government
should be adequate and it should be
possible for people to cash the
cheques more easily.
The performance of the PDS,
mid-day meals and ICDS should
improve. Soil and water conservation works should be taken up along
with minor irrigation projects. If
there is no rain village tanks can also
be filled using lift irrigation and
canals to the extent possible. Some
restrictions may have to be imposed
to conserve water. This should be
done in a decentralised way keeping
in view local conditions and with
the involvement of people. The
schemes announced by government
to make available grain and cooked
food to needy people should be
implemented efficiently and sincerely without delay. Authentic
information about the needy people
People have taken up
several initiatives on
their own. From
Mahoba district there
are reports of
initiatives of people to
repair and deepen old
wells while also
constructing
new wells
should be collected with the
involvement of the people and voluntary organisations. Goshalas and
fodder depots should be set up to
save cattle from perishing. Combine
harvesters should be restricted or
banned so that loss of valuable fodder can be avoided and also more
work becomes available to farm
workers. Farmers and farm workers
badly need relief from debt.
The way out
The government needs to change
some of its existing policies relating
to water management, mining, agri-
culture, rural credit, forestry and
industry. The most cost effective
and successful water management
would emphasise giving a new life
to traditional water sources like
tanks. Many villages wells can also
be repaired and used again. There is
much to learn from famous traditional tank systems like those at
Mahoba, Charkhari and Baruasagar
. Lift schemes which take river
water to nearby villages can also
play a useful role. Soil and water
conservation works including construction of new water tanks, repair
of old tanks and wells should be
taken up on a large scale as part of
integrated watershed development
schemes. Some existing flaws in
such schemes need to be removed.
Organic agriculture and revival of
traditional seeds should be emphasised. Bringing more greenery, forest protection, regeneration of
degraded forests should be emphasised with the involvement of weaker sections. Cottage industries can
play an important role in providing
alternative livelihoods. But the
flourishing Khadi cottage industry
of Jaitpur in Mahoba district was
recently disrupted badly and over
7,000 weavers were rendered unemployed due to the certain moves
made by a few highly corrupt persons. This cottage industry as well
as several others such as those in
Mangroth village in district
Hamirpur should be revived. The
emphasis should be on providing
low-cost, accessible, improved technologies instead of burdening farmers with expensive machinery and
debts. Many existing debts need to
be cancelled or phased out.
Destructive mining practices should
be curbed. Panchayat level plans
should be prepared with the
involvement of local people particularly weaker sections and women
who seek to promote people's livelihoods in a sustainable manner,
ensuring equality as well as protection of environment.
It is true that Bundelkhand is
passing through adverse weather
conditions, but extreme distress that
exists today can still be avoided. The
road from despair to hope exists, we
have to start walking on it.
—The writer is a senior journalist
9
MANIPUR DIARY
Where the
rifles rule
On a mere suspicion, the army can open fire, arrest and
even kill innocent civilians in north-east. This has let
loose a reign of terror, writes Meihoubam Rakesh from
Manipur, narrating tales of horror enacted in recent years
ith the advent of the insurgency from the late 1960s,
the people of Manipur have
been facing several forms of human
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rights violation at the hands of the
security forces deployed under the
assured impunity offered by Armed
Forces (Special Powers) Act, 1958. In
April 2006, Union Minister of State for
Defence, MM Pallam Raju, stated that
the army had been maintaining a zero
tolerance policy on human rights violations in Manipur. Yet, the armed
forces continue to carry out arbitrary
arrests, torture and extra judicial
killings with impunity under the garb
of fighting insurgency. On December
2, 2006, the prime minister of India,
during his visit to Imphal stated that
the government was considering
amendments to the Armed Forces
(Special Powers) Act, 1958 to make it
humane. But the union government
has failed to implement the recommendations of the committee to
review the Act under chairmanship of
Justice Jeevan Reddy which recommended repeal of the Act, among
other things, through its final report
submitted in June 2005.
In the name of combating insurgency, the security forces occupied
many tourist homes, village schools
and even places of worship. The
security forces compelled villagers to
work in their camp without paying
anything. Most of the inter-village
roads were barricaded for search
operations and frisking of people.
They also asked villagers to carry
identity card to be issued by the
village authority and those who
defied such instructions were beaten up. In other words, most of the
villagers have been living under
constant threat and fear intimidation
by security forces whose ostensible
task is to protect them.
There were several instances of
the killing of innocent people by the
security forces merely on suspicion
of being insurgents. The security
forces never admitted these killings
and have instead lodged false FIRs
with the local police, saying that the
said individuals were killed in
encounters. At the same time if members of security forces are ambushed
by militants, the forces resort to large
scale torture against the villagers
inhabiting the area around the spot
of incident.
Human rights organisations have
been documenting such incidents for
many years and also filed cases in the
Guwahati High Court on behalf of the
victims. In one such case, Pheiroijam
Sanajit was picked up from his house
in the wee hours of May 31, 2004 by
Indian army personnel and subse-
COMBAT LAW MARCH-APRIL 2008
MANIPUR DIARY
quently killed in a fake encounter.
Thereafter the army lodged a false
report with the Sekmai Police Station
stating that he was killed in an
encounter. In another case, one
Thokchom Doren Singh alias Naba
Singh was apprehended from his
wife's house by personnel of Assam
Rifles on June 6, 2004 and killed in a
stage-managed encounter. Further
one college boy, Khundrakpam
Tejkumar Singh, aged about 22 years
was brutally tortured and killed by
the personnel of 19 Assam Rifles stationed at Yaingangpokpi post after
arresting him on March 9, 2004 from
his locality. He had no criminal
antecedent or nexus with any unlawful organisation.
Whenever a victim's family
approaches the High Court, the security forces try to persuade them to
withdraw the petition by using one
tactic or the other. In some instances,
families have succumbed to the pressure tactics of the security forces.
In one incident of mass torture of
innocent villagers by the security
forces just after they were attacked
by some unknown militants, a Public
Interest Litigation was filed in the
Guwahati High Court. The incident
happened on September 30, 2007 at
Umathel Village where at around
10.30 pm an encounter ensued
between PREPAK (a proscribed
organisation) cadres on the one hand
and the personnel of 21 Assam Rifles
on the other near a roadside bus shelter in front of the Kakching Khunou
College at Umathel Village, Thoubal
District, Manipur. In the said
encounter it is reported that there
were casualties on both sides. At
least one personnel was killed while
another sustained injuries on his
right hand and ear.
In the aftermath of the incident,
additional forces of the Assam Rifles
rushed to the spot and conducted
search operations in the area. During
the operation, all the men of Umathel
village and its adjoining villages
were called out to the premises of
Kakching Khunou College and they
were made to lie on the ground and
then beaten up by the Assam Rifles
personnel. Most of victims of Assam
Rifle's torture were taken to the
Regional Institute of Medical
Sciences
(RIMS)
Hospital,
Lamphelpat, the Jawaharlal Nehru
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(JN) Hospital, Porompat and also to
various private hospitals in Imphal.
The villagers reported that they
had heard exchange of fire near their
village at around 9.30 pm on Sunday,
September 30, 2007. An hour or so
later, the personnel of 21 Assam
Rifles, in full combat gear, landed up
at their village and started knocking
violently on their doors, asking all
the male members to come out. The
Assam Rifles personnel then made
them squat and hold their ears by
looping their arms between the legs
and began to thrash them with sticks
and rifle butts.
The victims further stated that
the Assam Rifles personnel asked
There were several
instances of the
killing of innocent
people by the security
forces merely on
suspicion of being
insurgents. The
security forces never
admitted these
killings and have
instead lodged false
FIRs with the local
police
them many irrelevant questions and
charged them with harbouring militants in their village. The Assam
Rifles Personnel did not permit the
villagers to even stand up till around
7.30 a.m. It was only when the police
arrived that the villagers were
allowed to get up and move to another place for verification. The villagers
were not allowed to return to their
houses. They are now scared to
return to their village, fearing that
the Assam Rifles may return and
harass them further.
A woman shopkeeper of Umathel
Bazar said that the Assam Rifles personnel ransacked her shop and took
away expensive cigarettes and eata-
bles. But that morning, the AR personnel came again and forced her
family members to repair the damaged shop. No one was allowed to go
out from their houses and any person who was seen outside, including
auto rickshaw and bus drivers were
beaten up indiscriminately.
In this unjustified torture and illtreatment of innocent villagers of
Umathel Village, as many as 52 men
are reported to have sustained
injuries. About 30 of them, including
a seriously injured victim, were hospitalized at RIMS Hospital. Among
the torture victims were a college lecturer named Bijoy Singh, 42, and a
veterinary doctor named Rajendro
Singh. The villagers were detained
till around 8 a.m. of the next day,
October 1, 2007. Thereafter they were
released. However, they continue to
live in fear of a possible re-visit by the
Assam Rifles personnel. As a result
many of them had left their homes to
take shelter in the homes of relatives
in neighboring villages. These villagers are not only terror stricken, but
have also been displaced from their
homes and are not in a position to
raise their voice against the unjustifiable excesses of the Assam Rifles in
the aftermath of the encounter.
Subsequently, the High Court
directed that a fact-finding inquiry be
instituted by the Director General of
Police, Manipur or his subordinate
police officer. When the said police
officer issued summons to the torture
victims for recording their statements,
they did not turn up due to the fear
psychosis created by the security
forces. When media persons from
Imphal went to Umathel to find out
why victims were unwilling to give
their statements, they discovered that
fear of reprisals by Assam Rifles was
the key factor. Talking to media persons on condition of anonymity, a 30year old victim who works in a private school and has a young daughter
to look after, said although he wants
to come out and give his statement
about the incident, he is apprehensive
of its consequences for his family. 'I
never know when the security personnel will come and knock at my
door. So I cannot speak the truth
against the security forces,' he said.
—The writer is a human rights
activist and a lawyer based in Imphal
11
CHILD RIGHTS
Arresting
Child Abuse
In the current regime of law and its application, victims
of child sexual abuse stand very little chance of getting
justice and moving on with their lives. There is an urgent
need to change the environment—both legal and social
to curb this evil, writes Arun Kumar Sahoo
society is judged by the way it
treats its women and children. So is a judicial system.
Nothing is more horrifying than the
sexual abuse of a child. And nothing
is more reprehensible than a judicial
system that subsequently victimises
the victim. The law itself as well as
the methods of investigation and
cross-examination needs to be overhauled if we are to take even one
small step towards aiding an abused
child's progress to recovery.
Child abusers come from all strata
of society. It is the general belief that
child abuse is blatantly rampant only
in European countries. The reality is
that all over South Asia this phenomenon exists. The magnitude of the
problem in India is now assuming
serious proportions. Indian law with
respect to child abuse is still in its
developing stage. Unlike other
European countries, where laws exist
for the crime, in the Indian context,
besides some sections in IPC, Cr PC,
the Evidence Act, there is hardly any
strong mechanism to deal with this
problem. Most surprisingly, even
these meagre legal provisions do not
specifically address the question of
child abuse. As a general rule the
courts insist on corroboration of the
evidence of the victim. But sexual
abuse usually occurs behind closed
doors and hence it is practically
impossible to get corroboration from
an independent witness. Refusal to act
on the sole testimony of the victim of
A
12
sexual assault in absence of any corroboration is nothing but adding
insult to injury. In the tradition bound
non-permissive society of India, a girl
or a woman definitely would be
extremely reluctant even to admit that
any incident had ever occurred
because of the fact that it is likely to
reflect on her chastity. She would be
conscious of the danger of being
ostracised by society. It is also likely to
ruin the prospect of her rehabilitation
in society. Why children? Because
they are pliable, easily subjugated and
readily available. A huge number of
children are subjected even to
unspeakable torture to adopt a way of
life from which there is no escape.
Child abusers come
from all strata of
society. It is the general
belief that child abuse
is blatantly rampant
only in European
countries. The reality
is that all over
South Asia this
phenomenon exists
A majority of the sexual offences
committed against children are not
reported, let alone prosecuted. If any
individual is brought to trial, conviction is unlikely as the cases are very
difficult to prove. Moreover in a trial
in criminal courts, basically the
defence seeks adjournments or postponements on one plea or other, and
the cross-examination techniques are
designed to confuse and discredit the
child. As a result, offences of such
type go unreported and if they are
reported, the lengthy and cumbersome court procedure gives enough
time to the offender to pressurise the
child in one way or other to retract
the statement. According to a study
conducted by International Statistics
on child sexual abuse, at least two out
of four girls and one out of six boys
are victims of sexual abuse. The survey also reveals that the law does not
really provide relief for a child who
has been sexually abused because of
its in-built problems of limited perspective and insensitive procedures.
It also makes conviction very difficult
and makes the child relive the experience over and over again.
It is said that every nation is dutybound to protect and develop its
biggest asset, the human being. The
child is considered to be the citizen of
tomorrow and the future of the
nation is linked with the child's.
Children therefore require special
protection and attention and must be
most carefully watched over. Society
as well as state has obligations
towards its children. It is the duty of
everyone to see that the child is being
brought up in an atmosphere which
is conducive to his or her physical,
mental and moral development.
Some child psychologists consider
children to be immature until they
reach the age of 12, while to others it
is 14, and they regard these years as
the childhood years. Whereas a fish,
from the very first day of birth
becomes independent and does not
need any help, such is not the case
with human beings, who are helpless, powerless and dependent upon
others for a long period of time. The
law has a major role to play in this
regard. If we reflect on the role that
the law plays in everyone's life both,
private and social, we realise that
without a properly organised legal
system, society as we recognise it
COMBAT LAW MARCH-APRIL 2008
CHILD RIGHTS
would be impossible. Our happiness
depends upon the kind of legal system under which we live. To appreciate this it may be enough to say that
from the moment of birth to the
moment of death, law regulates one's
life. Between these two legal documents, the birth and the death certificates, our own well being and our
relationship with others are governed by law. The newly born baby is
invisibly but effectively protected by
law, for it is the law that
will establish and
safeguard
his
rights. In fact,
no
other
branch
of
social activity
is as intensively
human as the law
is. No other subject invites us,
as the law does, to consider all
aspects of the human life together.
Law is in effect a vital function of
society; one may say even an indispensable one. It can be ascertained
that no other single science or art can
be as close to life as law is.
In civilised society the welfare of
the child is considered to be of
paramount importance and the state
can never overlook the most valuable
asset of the nation. The Indian
Constitution, the law of the land, is a
complete document containing specific provisions relating to children
and their rights starting from the
Preamble itself. The Preamble of the
Indian Constitution assures social,
economic and political justice to all
its citizens, which unequivocally
includes children. Article 15(3) of the
Indian Constitution states: "Nothing
in this Article shall prevent the state
from making any special provision
for woman and children". Article 23
speaks of the prohibition of all forms
of traffick in human beings, which
can very well be interpreted to
include children in it. Article 24 also
specifically prohibits employment of
children below the age of 14 years in
any
hazardous
employment.
Similarly Article 36(e) and (f),
Articles 41, 42, 45, 47 fix certain principles to be followed by the state for
the welfare of children. Article 39 (e)
clearly reveals that the health and
strength of workers, men and woman
and the tender age of children are not
to be abused. And Article 39 (f)
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and contains serious contradictions
that inhibit women as well as children from reporting crimes of sexual abuse. In a criminal offence the
onus is always on the prosecution to prove affirmatively
each ingredient for the
offence it seeks to establish,
and such onus never
shifts. Howsoever great
the suspicion against
the accused and howsoever strong the moral
belief, unless the
offence
directs the state to ensure that
children are given opportunities and
facilities to develop themselves in a
healthy manner. Besides those constitutional mandates, we have also several legislations, which are meant to
serve the child better. The function of
the children relating to their health,
family life, combat exploitation and
harassment, etc., are reflected in
these legal measures.
In spite of all the measures both at
the national and even at the international level, children continue to be
exploited. According to the national
commission of women, existing law
does not address the increasingly
physical offence of child sexual abuse
In spite of all the
measures both at the
national and even at the
international level,
children continue to be
exploited... existing law
does not address the
increasingly physical
offence of child sexual
abuse
of the accused is established beyond
reasonable doubt on the basis of legal
evidence and material on record, the
offender cannot be convicted. Now
often the courts are taking a serious
view of the matter and not seeking
corroboration in every case. The
courts have also started pronouncing
judgments even on the basis of the
sole testimony of the victim and even
the apex court has convicted the
accused even though the prosecutrix
could not be examined as she did not
understand the sanctity of oath and
affirmation and she was not in a position to explain the sequence. Yet
despite all this the situation has not
improved to the required standard.
In the changed scenario when
humanity and humanitarian values
are gaining momentum, we have to
change our outlook and consider the
child to be the most fundamental and
vital element of the nation; we should
work together in accomplishing the
objectives of child welfare and development. To put this is in the words of
Justice Subha Rao "Social justice must
begin with children". Unless a tender
plant is properly nourished it has little chance to grow up into a strong
useful tree. So the first priority in the
scale of social justice should be given
to the welfare of children.
—The writer is SDJM, Bhubaneswar
13
RIGHTS & WRONGS
Sexual Minorities: Tamil Nadu shows the way
n a recent epoch-making step, the
Tamil Nadu government has set a
model vis-à-vis recognising and
protecting rights of sexual minorities. And has given succour to people pushed on to the margins of society by recognising their voices that
can soon be heard by other states as
well as the union territories run
under centre.
Following a public hearing highlighting daily injustices, hardships,
discrimination and poverty faced by
the transgender community in Tamil
I
Nadu, the state governor announced,
on January 23, 2008 the establishment
of a Welfare Board for Transgenders
— a world's first such centre.
The hearing organised by the
Tamil Nadu AIDS Solidarity Action
group (TASA), Tamil Nadu State
Commission for Women and
ActionAid brought together over 300
transgender people from across the
state. A citizens’ jury, including the
former director general of police,
retired judge and university vice
chancellor, heard the concerns of
those living under a 'blurred identity'.
"In the absence of job opportunities I became a sex worker and got
infected with HIV. I had to struggle
hard before I finally saw a doctor.
As a transgender I grew up with
stigma and insult but it has only
made me stronger as a person. I will
continue to fight for my right to live
with dignity," shared Noorie a well
know transgender activist from
Chennai after attending the public
hearing.
— Pragya Vats
Olympic prisoners
As China gears up to host the biggest international sports event, ‘Olymplian’ arrests
have already commenced in Beijing, writes Robert Menard
he Olympic Games have their anthem, their rings,
their heroes and their sponsors. And now, with the
Beijing 2008 games,they have their prisoners.The
Chinese government is not just building fine stadiums, it
is also arresting those who dare to condemn the countless human rights violations taking place in China. The
political police are getting ready for the Olympics in their
own way, bringing charges of subversion against those
who remind people of the promises the government
gave in 2001 to improve respect for basic freedoms.
And so it was that a few days before New Year's Eve,
30 policemen came and arrested leading human rights
activist Hu Jia at his Beijing home. Before arriving, they
cut his phone lines and Internet connection so that he
would be unable to alert his friends in China and
abroad. And before leaving, they threatened his young
wife, Zeng Jinyan, with reprisals. A well-known blogger
who was named by Time magazine as one of the world's
100 heroes in 2007, Zeng is now alone with their twomonth-old daughter, cut off from the world.
Hu is the 'prisoner of Olympic Games'. On his website, he had been keeping a countdown of the days left
to the inauguration of the games on 8 August, as well as
a count of the days he had spent under house arrest. Hu
is opposed to a boycott of the Olympics. He was enthusiastic about the idea of thousands of foreign journalists
coming to China because he thought they would talk
about its destitute and its oppressed dissidents. He is
also opposed to a boycott because he is a patriot. He
proved this by taking part in the demonstrations against
Japanese nationalism in the early 2000s and by defending China's endangered flora and fauna.
Although aged only 34, Hu has been campaigning
for 10 years for the environment, HIV/AIDS sufferers,
and political prisoners. Top of his year at engineering
school, it was his support for Friends of Nature that
T
14
drew him into activism. Then he founded one of the first
organisations offering care and comfort to those with
HIV and AIDS who, despite their large numbers, are
neglected by the authorities in China.
Recently nominated for the European Parliament's
Sakharov prize, Hu and Zeng embody the courageous
and tenacious defence of free expression in China. They
are so well known by foreign diplomats and the international media that it was assumed their high profile rendered them untouchable.
One would expect an outcry in response to such a
level of repression. All those looking forward to the 2008
Beijing games should speak out, as it is impossible to
imagine that this great sports event will not be marred
by the detention of people such as Hu and Wang. But the
International Olympic Committee is saying nothing and
is rejecting all appeals for help. The Olympic sponsors
are not saying anything either. And foreign diplomats
rarely speak out in defence of China's political prisoners
because they are too scared of upsetting Beijing.
Like many others, we had long thought that the government would ease the pressure and allow human
rights activists a chance, albeit a limited one, of expressing themselves before and during the games. But the
political police have been given their orders - to arrest
dissidents, keep files on foreign journalists, and compile
a blacklist of foreign human rights activists. Such repression will only radicalise the protesters. The Tibetans, the
defenders of religious freedom and all those who feel
betrayed, are already planning to demonstrate during
the games. They may spoil the party. And who is to
blame? The Chinese government, and only the Chinese
government. (IPS)
– The writer is secretary general, Reporters Without
Borders International
COMBAT LAW MARCH-APRIL 2008
LAWS & JUDGMENTS
Defending the right to legal aid
Convicted of murder without a lawyer to represent him, a man was finally set free
by Bombay High Court after a human rights lawyer obtained the landmark order
that upholds the constitutional right for legal aid in case of indigent and poor
undertrials
orty-five-year-old Baliram Dalvi
had been sentenced to life
imprisonment in 1999 by a sessions court in Alibaug which found
him guilty of murdering a fellow villager in a dispute over tap water. He
spent 10 years in prison. He was not
represented by a lawyer during the
trial. The lawyer Dalvi had engaged
dropped out after the initial proceedings and the Alibaug court convicted
him without hearing his defence.
Three other co-accused in the case
who had lawyers representing them
at the trial were acquitted. Dalvi was
consequently sentenced to a life-term
without a lawyer who could crossexamine the prosecution witnesses
and defended his case.
By an order of December 5, 2007,
a Division Bench comprising Justice
RMS Khandeparkar and Justice
Amjad Sayed of the Bombay High
Court, not only quashed the conviction and sentence, but also set the
accused free without ordering a retrial. Ordinarily, in matters where the
High Court sets aside the trial conducted by the lower court, the proceeding is remanded back to the trial
court for a re-trial. This however was
an unprecedented order where the
High Court set the convict free.
Dalvi had been charged under
Sections 302, 323 and 120-B of the
Indian Penal Code (IPC) for having
committed murder of one Shankar
Shelar and voluntarily causing hurt
to one Chandana Shelar on
February 10, 1997. He was arrested
on February 13, 1997. The charge
was framed on February 14, 1998 by
the Sessions Judge in Raigad,
Alibaug to which Dalvi pleaded 'not
guilty'. By a judgment of February
15, 1999, the Sessions Judge acquitted the other three accused and convicted Dalvi under Section 302 of
the IPC. Dalvi thereafter appealed
against the judgment of the Sessions
F
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Judge. The lawyer appointed by the
Legal Aid Panel to represent Dalvi
in the High Court failed to appear
and HRLN's advocate Rebecca
Gonsalvez was appointed by the
Court to represent him.
Going through the records of the
trial, it was pointed out to the court
that Dalvi had not been represented
during the trial. Relying upon the
decision of the apex court in the case
of Sukh Das & Anr. v/s the Union
Territory of Arunachal Pradesh reported in AIR 1986 SC 991 where the
Supreme Court had held that legal
service was an essential ingredient of
reasonable, just and fair procedure
and therefore free legal aid at the
cost of the state was a fundamental
right of an accused. The advocate
appearing for Dalvi stated that having been denied his fundamental
right to free legal aid in the Sessions
Court, the impugned order was bad
in law and therefore Dalvi ought to
be acquitted. It was also pointed out
to the court that members of the
legal aid panel ought to be pinned
with some level of accountability to
appear in matters where they had
been appointed, and that failure to
do so should invite a penalty including deletion of the advocate's name
from the panel. It was also brought
to the court's attention that the fee
structure of the Legal Aid Panel
being dismally low, did not attract
quality work on the part of the
lawyers and therefore it was necessary to review the same.
The Advocate appearing for the
State accepted that there had been a
failure on the part of the Sessions
Court in letting the trial go ahead
without the accused being represented but submitted that there was no
case however to acquit the accused
on that basis. It was pointed out that
the Sessions Court had asked the
accused if he wanted to cross-exam-
ine the witnesses, a request that he
had declined. It was also brought to
the attention of the court that Dalvi
had been specifically asked if he
would like to engage an advocate at
the cost of the government but that
he had refused the offer.
In the light of this, the court
examined the provisions of Section
304 of the Code of Criminal
Procedure, which sets out,
'where in a trial before the Court of
Session, the accused is not represented by
a pleader and where it appears to the
court that the accused has not sufficient
means to engage a pleader, the court shall
assign a pleader for his defence at the
expense of the state'
The provisions of the Legal Aid to
Unrepresented Accused Person in
Cases before the Court of Session
Rules, 1982 framed und er Section
304 of the CrPC were also referred to.
The Bench concluded that the provision of the law casts a duty upon the
Sessions Court to assign a pleader for
the defence of the accused in the circumstances specified therein and
observed,
"7….The legal assistance to unrepresented accused in a Sessions Case is
therefore, his statutory right and
undoubtedly it is an obligation of the
Session Court to ensure that there is due
compliance of such right of the accused
before he is tried and convicted.
Accepting that assistance cannot
be thrust upon the accused against
his will, it found that it was not however sufficient for the Sessions Court
to merely inquire at the time of
recording of the plea as to whether
the accused would like to avail legal
assistance. The court recorded that
even in a case where the accused
declined to avail legal assistance
while recording the plea in answer to
the charge framed and if in the
course of recording of evidence, the
accused remained unrepresented or
15
LAWS & JUDGMENTS
O
n December 6, 2007, a Division Bench of the
Supreme Court comprising Justice SB Sinha and
Justice Harjit Singh Bedi ruled that teaching staff in
schools should not be put on electoral and polling duty on
teaching days during teaching hours.
St. Mary's School, an unaided Delhi school filed a petition
in the Delhi High Court challenging the use of teachers of
government schools for various non-teaching purposes during school hours by the Election Commission of India and
the Delhi Government. The petition pointed out that the services of teaching staff were being utilised for activities such
as polling duties during Lok
Sabha elections, Delhi
Legislative Assembly elections, Delhi Municipal
Corporation
elections,
Gurudwara elections, for
revision of polling lists, for
the pulse polio drive, for
preparation of census lists,
for surveys on malaria, pollution etc. The absence of teachers, the petitioners stated resulted in high drop out rates,
unfinished courses and poor results. In some schools, Class
IX and X students did not have teachers for as long as two
months. It was also pointed out that for polling duty, almost
90 percent of the teaching staff was deployed and about 50
percent was deployed for revision of electoral rolls. During
the census of 2000 and its enumeration in 2001, about 90
percent of teaching staff in schools had been deployed.
The Delhi High Court had in an order dated August 11,
2004 directed that services of teachers be utilised for nonteaching purposes only on non-working days for students.
The Election Commission of India approached the Supreme
Court challenging the said order on the ground that holding
of election was a sovereign function and that the Election
Commission was required to conduct elections for upholding democracy. It was argued that clauses (1) and (6) of
Article 324 of the Constitution of India, mandated that
whenever the Election Commission asked for deployment of
staff for the purpose of conducting elections, it was obligatory on the part of the President of India or the Governor of
the State to make such number of staff available. It was further argued that with a view to fulfilling the said constitu-
tional objective, Section 159 of the Representation of the
People Act, 1951 dealing with making staff of certain
authorities available for election work had been amended to
include institutions, concerns or undertakings established by
or under a Central, Provincial or State Act or that which are
controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a
State Government. Therefore, the Election Commission submitted, the Delhi High Court could not have issued any direction, which purports to interfere with the electoral process.
The petitioners on the other hand argued that the right to
education being a fundamental
right protected under the
Constitution, the State could
not deprive students of the
same. Judgments of the apex
court expanding the scope of
Article 21 of the Constitution to
include therein the right to education were placed before the
Court. In balancing the two conflicting constitutional rights,
the Supreme Court observed that, Sixty years of independence, however, has not brought about the desired result of
imparting compulsory education to all the children.
Education is one of the most important functions of the
State. The State has a basic responsibility in regard thereto…. With the advent of technology, requisitioning of a large
number of people for carrying out the election may not be
necessary… The State admittedly is not in a position to perform its sovereign function of imparting education…. The
state of primary education in India is in deplorable condition.
There admittedly is a heavy drop out from the schools particularly from amongst the girl schools. The question of the
right to exercise franchise whereupon the emphasis is laid by
Mr Venugopal is an important one, right to education is also
no less important being a fundamental right.
The court finally directed that that all teaching staff be
put on the duties of roll revisions and election work on holidays and non-teaching days and further that teachers
should not ordinarily be put on duty on teaching days within teaching hours. The Court also directed that non-teaching staff, however, could be put on such duties on any day
or at any time, if permissible in law.
Reconciling educational right and
election duty
was found to be without any legal
assistance, the Sessions Court was in
such circumstances charged with a
duty to enquire as to whether the
accused needed legal assistance.
'10….Failure on the part of the
Session Judge in this regard would certainly result in denial of statutory right
guaranteed to the accused person in a
Sessions Case. Besides denial of legal
assistance would also result in violation
of constitutional mandate under Article
21 of the Constitution of India.
Quoting from the judgement of
the apex court in the Sukh Das case,
the Khandeparkar-Sayed bench set
out that the Supreme Court's obser16
vations highlighted the need for
Sessions Judges to be alert and conscious towards their obligations to
ensure that the mandate of Section
304 of the CrPC was complied with
'in letter and in spirit'. The record in
the matter did not reveal that the
accused had been asked whether he
wanted legal assistance at the time of
cross-examination, only that he had
declined to cross-examine the witness himself.
The court therefore held that the
impugned order had been passed in
violation of the provisions of the law
and thought it a fit case to not only
quash the impugned judgment but
also acquit Dalvi who had been in
jail
since
February
1997.
Furthermore, the Court also recorded that the fee structure for legal aid
panel lawyers of 1997 had become
outdated and required to be
reviewed. Finally, along with a word
of appreciation for the services rendered by HRLN lawyer Rebecca
Gonsalvez in the matter, the Court
directed the state government to pay
further fees of Rs 5,000 to the advocate for her commendable work in
the matter. This is how Dalvi was
able to walk free after languishing in
jail for 10 years in the absence of
legal aid that he needed so badly. „
COMBAT LAW MARCH-APRIL 2008
PRISON PLEAS
Letter from
Tihar
A Kashmiri youth, Parveez Ahmad, narrates how police
turned him from a gentleman to 'bomb-man' in a letter from
his confinement in Tihar Central Jail, Delhi. Combat Law is
in possession of his letter. It is being reproduced here
Subj: Save my career, as I am innocent.
ith due reverence and respect, I am writing this letter with the hope that I will get justice without delay. I want your kind attention towards the real fact of my arrest, interrogation and torture, which is totally different and contradictory to that of police's statement. All the allegations and sections they have charged upon me are baseless. All the confessions I have made before them
were all under compulsions and force. As I could not tolerate the torture and electric shocks. I am still
frightened of that treatment. Those electric shocks are still breaking my sleep.
Being citizen of India I keep faith in Indian law and judiciary. And hope no discrimination will be
done against me. Though my faith in law and being a citizen of India has scattered badly by the role of
police. But still I have not left the rope of hope. To restore the faith, it is essential to give me justice,
through fare trial, and save my career. To prove my innocence your goodself is requested to see my past
record. Which will reveal you how clear my past and present is. Though I am concerned about the condition of J&K.
Now I want your kind attention towards the following lines which will reveal your goodself the
whole story.
As I have done my M. Sc (Zoology) from the University of Pune and now am seeking admission to
Ph.D for which I was going to Pune.
W
www.combatlaw.org
17
PRISON PLEAS
„ On September 12, 2006, I left
home for Pune by flight (Spice
Jet). Srinagar - Delhi & DelhiPune. On reaching Delhi, when I
was approaching for Spice-Jet
counter to collect my boarding
pass, some seven to eight persons held me firmly and took
away my luggage and whatever I
had in my pockets. They took me
to Lodhi Colony special cell
office. where they torture and
interrogated me severely. They
beat me up ruthlessly and gave
me electric shocks. Later, I came
to know that they were from the
special cell of police. Led by
inspector Sharma ji.
„ On the same day they forced me
to call one of my friends to give
his SIM card to their contact person already in Pune.
„ ON September 13, 2006, they
made my I Card with the name of
Iqbal and took me to Pune by
Spice-Jet flight. On reaching
Pune, one police team was
already there but in civil dress. I
can reveal all the details, their
names, where they kept me in
Pune, and how they mentally tortured me.
„ On September 14, 2006 evening
after receiving few calls they took
me to one shop in Pune and collected some 10 lakh rupees from
that shopkeeper.
„ On September 15, 2006 they took
me back to Delhi, and kept me
again in Lodhi Colony Special
Cell lock up where they tortured
me very badly and severely. I was
unconscious and half dead.
„ On September 16, 2006 they took
me to some unknown place and
kept me there for almost one
month. I was not able to walk and
move as they kept me handcuffed
in one room. The details of that
very place and persons will be
revealed in the court. What they
did with me there, will also be
revealed.
„ During that duration they neither
informed my parents nor took me
into police remand or judicial
custody. Instead, they forced me
to lie to my parents that I got a job
in Maharashtra.
„ After one month on October 15,
18
2006 they took me to hospital for
medical, which was just a formality, as I was already instructed
not to say anything about my ailment, torture and muscular
spasm. Even doctors wrote the
medical report without examining me. I was shocked to see the
collusion between police and
doctors. I could not understand
what was going on. As I was seeing that for the first time in my
life.
„ On the same day October 15, 2006
in the evening they took me to a
lady magistrate for taking me
into police remand. That too was
a joke, as I was in their custody
for more than one month. Before
presenting me before that magis-
trate they threatened me of dire
consequences If I narrated the
true story. I was made to narrate
my story their way. The story was
like this. I was coming from
Mumbai by Golden Temple
express to Nizamuddin. To hand
over rupees 10 lakh and three Kg
of RDX to some Tariq at Azadpur
Mandi. But that Tariq did not
come. Meanwhile police party
caught hold of me. The magistrate did not ask me anything.
„ During my stay in their custody
they compelled me to file so
many (rail) reservation forms in
my own hand writing and signature. They took away my attache
bag. On asking where they were
taking my bag, they told me that
my final verification was being
done. Soon you would be
released. I got very tense and was
confused, and smelled something
fishy. I thought they would finish
me in an encounter. So I could not
sleep all those nights. If they have
really sent any person to Delhi
from Mumbai, then that was Ram
Gopal who was looking after me
in that police flat, may be a constable. That police office (Flat) is
near an airport, as I could hear
sounds of aeroplanes. One metro
track is also nearby which I saw
from one small pore of window.
Through the bathroom window, I
saw a public school in the neighbourhood. The name of that public school was ITL Public School,
next to this police flat. In that flat
the staff was changing every 24
hours. The staff comprised of
Anil Tyagi, Ram Gopal, Gurmeet,
Raju
(Pahalwan),
Mangal
(Bihari), Pravesh, Pandit and others whose name I don't know but
I can identify them. They kept me
as an animal, handcuffed and
feetcuffed tied to the iron rods of
window, 24 hours. Because of
which I was not able to make any
free movement or walk in that
very room. The only time they
were releasing me when I was
going to bathroom. For the whole
month I could no see sun. In that
very police flat there was one
more person arrested (rather kidnapped) in other room. He too
was forced to make calls to his
relatives.
„ After staying few for days in that
flat, I was made to cell my parents and saying that I was alright
and got a job. One evening my
parents called me up with weeping words that they heard news
of my arrest, as somebody had
informed them. I could not tell
them that I was in police custody
since the day I left home. I was
forced to assure my parents that I
was alright. I was happy. Also
that I thanked God that atleast
my parents came to know. Later
police threatened me not to disclose news of my arrest before
my parents and assured me of
releasing before Eid. Whenever
my parents were calling me I was
COMBAT LAW MARCH-APRIL 2008
PRISON PLEAS
lying to them that I was not getting travel reservation confirmed.
They (my parents) were insisting
on me to leave my job and come
back to home. I was weeping for
the whole day and night. I
became very weak and lazy.
Inspector Sharma ji told Anil
Tyagi to provide me Quran and
other books so that I would not
loose my concentration. They
were constantly assuring me of
releasing me before Eid. But they
were lying and deceiving me as
well as my parents.
„ After taking me into police
remand officially, they kept me at
Lodhi Colony office for days. I
was thinking perhaps they would
release me now, as Deepawali as
well as Eid were approaching
after few days. But there was
some thing worst to come. My
career was going to be spoilt it
and my image was going to
change from gentleman to bombman, from student to a terrorist.
„ Finally the day came when my
whole career was wiped. I was
mentally shocked and astonished.
On October 20, 2006, when I was
Am I not Indian, if I am
Kashmiri. Why this
discrimination. When
tall claims are being
made by the Govt. of
India, by media, that
before Law all citizens
are equal. Whether of
Kashmir or Kerala.
Why they made me a
scape-goat, to get
compliments from
their seniors and
public. And public too
took me as a terrorist
www.combatlaw.org
watching TV in Inspector Badrish
Dutt’s room, suddenly SI Vinay
Tyagi told me that one press person was downstairs and wanted
to meet me. He advised me to
speak in his presence. After 10-20
minutes, suddenly everything
changed altogether. Every personnel was trying to catch hold of
me and come close to me. I was
just confused to see what was
going on. Especially, SI Vinay
Tyagi and Havaldar Satish held
me firmly. Suddenly they opened
the gate and I was just shocked to
see the mob of more then 50 photographers. They started taking
my photographs and shooting me
for 10-15 minutes. I understood
that they have now ruined my
career and life. I looked towards
inspector Sharma ji. He by his gesture posed as he had arrested me
and presented me before media as
a hard core terrorist. Now I
realised fully what actually their
plan of keeping me in their custody was. They actually wanted to
show me before media and tell
that they have arrested a persons
(terrorist) who arrived in Delhi to
explode bombs on the occasion of
Deepawali, which is just shame
upon them. How they (police)
were befooling their public. And
media was helping them in propagating such fake arrests. When I
could not celebrate my Eid at
home, with my parents, what I
have to do with the Deepawali.
After those false and baseless allegations I wept like a widow. Now
I realised that I no more could contact my parents. As they (police)
have turned me into a don.
I am still thinking why they
ruined my career
„ Am I really a terrorist? When I
have never ever seen how that
RDX looks like.
„ Am I not an Indian, if I am a
Kashmiri.
„ Why this discrimination. When
tall claims are being made by the
Govt. of India, by media, that
before law all citizens are equal.
Whether of Kashmir or Kerala.
„ Why they made me a scape-goat, to
get compliments from their
My faith in Indian
democracy and law
has shattered badly
and I am now very
disappointed in jail on
the role of police. I am
finding no hope, then
to appeal before your
goodself to provide
me fare trial and give
me justice. So that I
can restart my
normal life
seniors and public. And public too
took me as a terrorist. Who had
arrived in Delhi on Deepawali to
disrupt the celebrations? Whole of
the police party and the special
cell people know very well that
they arrested me on September
12, 2006 at Delhi airport. Are they
trying to prove that aeroplane
authority were allowing to carry
explosives in their flights.
My faith in Indian democracy
and law has shattered badly and I
am very disappointed about the role
of police. I have no hope, than to
appeal before your goodself to provide me fare trial and give me justice. So that I can restart my normal
life with my old parents. So that my
faith in law is restore.
Jail no. 01, Ward no. 01
Barrack no. 02
Tihar
PARVEEZ AHMAD
S/O. SANAULLAH RADOO
R/O. NOOR BAGH -A
SOPORE BARAMULLA
J&K
PIN - 193201.
19
PRISON PLEAS
In Defence of Innocence
A woman serving a 20-year-long sentence gives birth to a child in Mirzapur jail in
Uttar Pradesh. In a fervent appeal to President Pratibha Patil, the pleader seeks
reprieve and a free and honourable life for her five-year-old son who is behind the
bars for no crime of his. Shanti Devi's plea in her own words
President Madam,
Hon'ble Pratibha Patil Ji,
Rashtrapati Bhavan,
New Delhi.
Subject: In connection with six-year-long punishment of a helpless woman convict and her innocent child
Hon'ble President Madam,
Petitioner Shanti Devi wife of Santosh Brahmin, resident of village Lauwari, Post Office Sandi, Police
Station Pannuganj, district Sonebhadra, Uttar Pradesh
has been undergoing detention for last six years in
Mirzapur jail with her five-year-old child, Krishna
Kumar. The petitioner has been sentenced on the
charge of murder of her husband. A year-and-a-half
had passed when this incident took place in which the
petitioner was unjustifiably implicated. The petitioner
comes from a very poor family whose ancestral abode
is in Madhya Pradesh. This is how no serious effort was
made on the petitioner's in-laws' part for getting her
released. Father-in-law has moved to the petitioner's
home after selling away land in his village and the
brother-in-law is absconding for past six years. In such
circumstances none are interested in pleading the case
of the petitioner. Certain people took pity on the petitioner and got bail for her in March 2004 but no surety
came up because of the fear that the petitioner might
flea out of the district. In the absence of money and
inability to engage a good lawyer, the petitioner was
sentenced for 20 years in jail by sessions court in 2005.
Grave injustice has been done to the petitioner. She
never got a chance to plead her case because of her
abysmally low circumstances. The lawyer that was
engaged gobbled up petitioner’s money collected
through hard work. Under such circumstances the petitioner is not getting the kind of help she needs to fight
her case and thereby the petitioner's human rights are
getting trampled.
Even worse is the condition of the petitioner's fiveyear-old child whom the petitioner gave birth inside
the jail and who has lived for five years within the confines of the jail. The jail does not have any facility for
the development of child or education. The entire life
for this baby is dark and his human rights are being
subjected to grave violations. Worried as the petitioner
has been for this reason, she thought several times of
20
finishing her life; yet she wants to struggle and live for
the sake of her child. The jail does not have any
employment opportunity. Several times the petitioner
talked to jail authorities in this regard. Yet no employment could be made available to her. Because of this the
petitioner is facing grave hardships and is unable to
think as to how she can pursue her case.
Madam President because of being a woman the
petitioner was quite happy when you became the first
woman to be elected as President. This has ignited hope
in an abjectly poor woman like the petitioner. Do poor
women like the petitioner have no right to pursue their
cases for the sake of innocent children like the one that
the petitioner has? This right is granted by our
Constitution. Thus, why is there such discrimination
against the petitioner? In our society big time offenders, culprits, mafia, who can buy justice through the
sheer power of money, go scot-free. The petitioner has
quite a few questions in this regard. Yet on the contrary
the petitioner can see that in Mirzapur jail poor alone
are serving their sentences for years and years amid
lack of ability to pursue their cases while moneyed people come and go. Is this government not in a position to
give any support to an abjectly poor woman like the
petitioner and her innocent child?
Madam President, the petitioner has great hope
from you and it is requested before you that the petitioner's case is taken up seriously and her and her
child's human rights be protected otherwise neither she
nor her child could ever be able to become good citizens, nor she would be able to give an honourable existence to her child. The petitioner be given justice without delay, otherwise the petitioner would be forced to
take some concrete step.
Thank you,
Shanti Devi
(Petitioner), Mirzapur jail
(Translated from Hindi by Abid Shah)
COMBAT LAW MARCH-APRIL 2008
I N V E N T I N G T H R E AT S
Uttarakhand: Inventing
Naxal Threat
A fact finding team that visited Haldwani to meet a
jailed journalist was turned away by muscle flexing
state administration that swears to stamp out Maoist
threat from Uttarakhand despite no evidence of its
existence. Radhika Menon from Forum for Democratic
Initiatives, who was part of the team, points to a
sinister move by the state government to rob the
people of the little freedom they may have while
wooing the likes of Tatas
n Uttrakhand today, what does it
require for you to be locked up in
jail, in solitary confinement with
an armed constabulary guarding
your every move and watching and
tracking those who visit you? You
don't need to be a liquor mafia leader, a real estate dodger or a major
bungler of infrastructure funds. In
fact, if you are any of these you may
even find a pride of place in the ruling dispensation's services. But if
you are like Prashant Rahi, a journalist, a social activist and a person
who has voiced and stood by the
struggles of a neglected region and
its even further neglected people,
the government may dump you in
jail with charges so serious and in
provisions so unfair that you would
have to prove your innocence to
those who are determined to prove
you otherwise.
As for what has Rahi done, even
the police may not be very clear,
nevertheless they were eager to
declare him a 'big catch' and booked
him under various sections of IPC
including 121, 121A, 124A, 153B,
120B. Since 21st December, the supposed date of his arrest from the
Hasanpur Khata forest, it was
leaked to the state's leading newspapers that he was an area commander of Maoist Communist Centre
I
www.combatlaw.org
and that he was also the zonal secretary of CPI-Maoists and that he was
conspiring to blow up Haridwar jail
and the Haldwani sub jail. Laptops
with addresses of police stations
and some CDs, a pen drive and
Maoist literature were supposed to
be accumulating as evidence of his
As for what has Rahi
done, even the
police may not be
very clear.
Nevertheless, they
were eager to
declare him a 'big
catch' and booked
him under various
sections of IPC
including 121,
121A, 124A, 153B,
120B
crime. In the meantime, with the
media turning away from the
incompetence of the administration,
the bungling of funds, the crackdown on trade unions and giving
double page spread to the "seditious" activities of a journalist, the
government heaved relief.
The self-styled security experts
of Chief Minister BC Khanduri
bloated into a big I-told-you-so.
They declared after all Uttrakhand
does share porous border with
Nepal and there is easy movement
of people between the two countries
and thus presumably also that of
Maoists of both countries. Here an
incident from Champawat district is
tom-tommed, wherein Nepalese
Maoists were reported to have
planted red flags inside Indian territory. Local persons, harassed by the
combing operations in the area have
however publicly stated that the red
flags in Nanakmata forests were
actually the handiwork of a contractor to make logging easier for his
workers! But the police aided by a
similarly oriented government peddled the view of increasing impact
of Maoists in the area.
After all with a Prime Minister
declaring that left wing extremism is
the biggest internal security threat,
state after state has been declaring
and demonstrating the presence of a
threat aided by sensational reporting
and why would Uttrakhand remain
behind in this game of me-morethreatened-than-you-are.
Chief
Minister Khanduri took it as an
opportunity to re-emphasise the
demand for Rs 208 crores from the
central government for bolstering the
law and order situation and the
Maoist presence was presented as the
big reason. It was also leaked to the
newspapers that Rahi's interrogation
revealed a strong network of 25-30
intellectuals who planned to disturb
peace and law and order situation in
the State!
Khanduri has gained credence
from the activities of the earlier
Congress government which had
allocated Rs 10 crore for this "threat"
and which had also constituted a special task force with 30% more salaries
than the regular police. Yet till date
the government has had little to
show in terms of Maoist activities
apart from the arrests of four persons
21
I N V E N T I N G T H R E AT S
including a young journalist under
Unlawful Activities Prevention Act
(ULAPA). No evidence could be garnered to prove them as Maoists apart
from the fact that one of the persons
was an illiterate worker supposedly
carrying a Maoist booklet, another
was accused of trying to burn a roof
down and yet another one was a
young journalist.
As for Prashant Rahi, aaccording
to Rahi's daughter who works in the
Hindi film industry as an Assistant
director, he was arrested on 17
December 2007 from the DehardunRishikesh road, tortured and then
posed as a conspirator. Far from a
threat, Rahi's credential includes
working in close association with the
local
people's
struggles
in
Uttarakhand for the last 17 years. By
birth a Maharashtrian, he had pursued an MTech. from Banaras Hindu
University before switching to journalism and starting his career with
the Himachal Times, later moving on
to The Statesman.
Talking about people's issues as a
journalist does not indicate the dangerous criminal, that the administration has been eager to prove him as
per the repeated declarations of the
Sub Divisional Magistrate (SDM) of
Haldwani, Pankaj Pandey — even
before the trial had started — while
preventing Forum for Democratic
Initiatives (FDI) Team from meeting
Rahi in the Haldwani jail.
While in Haldwani Jail, Rahi was
not allowed to meet any human
rights activists, representatives of
lawyers organisations or the media.
The jail superintendent rejected
requests to meet Rahi after verifying
the identity proof of the FDI members, which included a Delhi
University teacher, a Nainital Bar
Council member and a well known
High Court lawyer, a journalist from
Delhi and the general secretary of the
Srinagar Researchers association.
The SDM, who had the authority to
grant permission to meet prisoners
held under ULAPA, first remained
elusive and when finally confronted
declared that the team could meet
any prisoner they liked, be it a murderer or a rapist but meeting Rahi
was impossible as per strict orders
from the police and "above". He suggested we should get files opened in
our names with the police so that
22
they could verify our activities before
we met Rahi!
Rahi's family subsequently got a
court order requesting that he be
allowed to meet human rights activist
as his daughter, the only family member, stays in Bombay. The administration now has to oblige but he has been
shifted to the Dehradun jail for 'security reasons'. In the meantime, those
who were trying to visit him were
harassed in other ways. There are
search operations on and it was
reported to the team that the police
were also going and harassing the
landlords of the local student sympa-
Rahi's credential
includes working in
close association with
the local people's
struggles in
Uttarakhand for
years. He had
pursued an M.Tech
before switching to
journalism
thisers of Rahi so that they would
turn the boys out on the streets.
The Chief Minister who has been
confronted on the Rahi matter by the
media in press conferences has gone
on to say that he had nothing to say
on Maoism in the state but on Rahi he
adds, "It's a coincidence that he was a
journalist, but Rahi has been
involved in activities detrimental to
the nation's security." Now what is
the basis for such statements and
why is the government so desperate
to prove dangerous Maoist presence
in the state? A share from the central
budget for combating Naxalism is
one part. The other lies in the developments within the state.
The condition of the Taru and
Bauxa people of the terai region has
been distressing for decades before
statehood and also in the years after
statehood. In the Bindukhata region
of the 1970s, the condition of the
peasants was given a voice and the
form of a struggle by an ex-army
man, Bahadur Singh Jungi. The
struggle to free land beyond the ceiling act assumed massive proportion
and spread across the terai region.
The industrial development in the
state has confined itself to the packing industry and large tracts of land
have been captured by the land
mafia, in the name of industry,
tourism and real estate. Recently
there has also been a massive crackdown on trade unions. In the SIDCUL area there is a witch hunting of
union leaders, AICCTU leader KK
Bora was manhandled on the streets
and threatened with an encounter,
several workers have also been terminated from services.
When the Tatas faced trouble in
Singur in West Bengal , Chief
Minister Khanduri had offered trouble free areas within Uttrakhand.
His recipe for easy areas for Tatas
and other companies includes
restricting the labour rights of the
workers in these special zones,
arresting union leaders, and if
required shooting the messenger as
in the case of Rahi. The consternation that it has generated amongst
the people and the anxiety of the
government to drum up Maoist fears
indicates that this is not the last we
have heard from the state.
—The writer is a social activist
COMBAT LAW MARCH-APRIL 2008
I N V E N T I N G T H R E AT S
do not remember coming across a
news report on any kind of naxalite activity in the state of
Uttarakhand till the Chief Minister's
conference on internal security,
chaired
by
Prime
Minister
Manmohan Singh was held on
December 20, 2007. Addressing the
Chief Ministers, the Prime Minister
said, "I have said in the past that Left
Wing extremism is probably the single biggest security challenge to the
Indian state. It continues to be so and
we cannot rest in peace until we have
eliminated this virus." Giving assurance of providing support to the
states for improving internal security
he said, "We need to cripple the hold
of Naxalite forces with all the means
at our command."
This conference brought to my
notice that Uttarakhand is also now
one of the states which faces the red
threat, as the Chief Minister of the
State BC Khanduri spoke of armed
men, suspected to be Maoists, who
were seen in the Kumaun region of
Uttarakhand.
According
to
Khanduri, since Uttarakhand lies on
the Nepal border it faces greater
threat of Maoists filtering in from the
border. In order to beef up internal
security, and ward off the menace of
these “Maoist monsters,” Khanduri
demanded Rs 208 crores from the
centre.
Curiously, an article on December
21, 2007, in the newspaper Amar
Ujala corroborated Khanduri's information. It reported that a dozen
armed men, suspected to be Maoists,
were seen in the forests of Hanspur
Khatta, Senapani and Chorgaliya in
the Kumaon region of Uttarakhand.
This was followed by reports about
the arrest of the so-called zonal commander of the CPI (Maoists),
Prashant Rahi, from the forest of
Hanspur Khatta, which appeared in
the local newspapers of Nainital district, justifying the need of funds for
internal security. According to the
newspaper reports, Rahi was sitting
with five other men by a riverside
when he was arrested on December
22, 2007, while the others managed to
escape. One must give credit to the
state and its police force for the high
level of planning and co-ordination
that they achieved. It is difficult to
believe the speed at which all these
events unfolded. There is a difference
I
www.combatlaw.org
A Daughter’s Plea
The 'Naxal threat' has suddenly surfaced in Uttarakhand. It
is a state government’s ploy to demand crores of rupees
from the centre. To bolster this claim an innocent journalist,
Prashant Rahi, is arrested. His daughter Shikha Rahi writes
of hardly two days between the time
the suspected Maoists were seen for
the first time in Uttarakhand and the
day their zonal commander was
arrested. Moreover, the order in
which all these events took place
immediately after the conference on
internal security seems so perfect.
However, the real story, which
Prashant Rahi, my father, revealed to
me when I met him at Nanak Matta
Police Station in Uddham Singh
Nagar district on December 25, 2007,
is very different from the version that
appeared in the press. I had decided
not to cry when visiting him, so I just
hugged him and said, "Everything
will be alright. Do not worry.''
Though I could see the tiredness in
his eyes, my father gave me a broad
smile. When I sat down to talk with
him, he narrated to me a completely
different version of his arrest. "On
December 17, 2007 in Dehradun, I
was walking to a friend's house at
around 9 am, when I was suddenly
attacked by four or five men (not in
uniform). They pushed me into a car,
blindfolded me and went on beating
me all along the way. After a journey
that lasted about an hour-and-a-half
they pulled me out of the car in a
forested area, where they started
beating me again. They hit me everywhere," said my father.
I listened to him patiently without
letting myself get affected by the brutality he underwent. My father continued, "On the evening of December
18, 2007 these people took me to
Haridwar, where the Provincial
Armed Constabulary (PAC) conference was being held. Here, they continued to torture me. They brutally
hit me all over my body, including
my private parts. The officials also
threatened to pump kerosene up my
anus and tie me to slabs of ice." What
is worse, the police also threatened
my father to bring me from Mumbai
(where I reside and work) and force
him to rape me in their presence.
On December 20, 2007, the officials
brought my father to Nanak Matta
Police Station in Udham Singh Nagar
district. He was in pain and disoriented due to the sustained beatings and
interrogation of the earlier three days.
Though the interrogation continued,
the police waited for him to recover
somewhat and then, after two days,
on December 22, 2007 they made his
arrest records, which are absolutely
baseless and fictitious. According to
my father, the officials who tortured
him did not disclose their identity to
him, nor were they seen again after
those five days of in illegal detention.
In violation of constitutional
norms, Prashant Rahi was not produced before a magistrate within 24
hours of arrest. He was produced
before the magistrate only on
December 23, 2007. He was not
allowed to contact a lawyer, relative
or a friend after his arrest. After torturing him mentally as well as physically for five days, he has falsely been
implicated under sections 120 B, 121,
121A, 124A, 153B of the Indian Penal
Code and sections 10 and 20 of the
Unlawful Activities (Prevention) Act.
Originally from Maharashtra, my
father did an M Tech from Banaras
Hindu University but opted to
become a journalist. A former correspondent of The Statesman (Delhi), he
has been working in Uttarakhand for
the last many years as a journalist and
social activist. The fundamental rights
and constitutional safeguards that the
Police have so blatantly violated in
case of Prashant Rahi are guaranteed
to all citizens of India, regardless of
what political or ideological views
they may hold or what crime they
may have been charged with. Such
gross violation of rights by the police
should not be condoned. If such a
thing could happen to Prashant Rahi
who is a highly educated and reasonably well connected person, I shudder
to think of the fate of the less fortunate
at the hands of the police.
„
23
TA L E S F R O M P R I S O N
Inside Ghaziabad jail
he Indian criminal justice system from the days of the British
Raj is based on one premise innocent till proved guilty! Yet the
reality is exactly the opposite. It is
simply, punishment and more punishment for the undertrials till they
can prove themselves innocent!
I am not talking of habitual and
serious criminals, who are influential
and resourceful enough to make jails
their second home. I am concerned
about the majority of undertrials
who are either merely suspects,
caught simply to fill up the monthly
quota of the policemen in their area,
or those arrested on false and malicious complaint filed by an enemy
through bribing authorities, or even
for some petty crime like squatting
and playing cards on the pavements.
In thousands of district jails across
T
What happens behind
the formidable walls
of jails is simply a
mockery of the law
where human beings
languish in
humiliating and
degrading slavery,
writes
KUMAR BAADAL in
an eyewitness
account. A former
staffer of Tehelka, he
was confined to
Ghaziabad Jail in the
aftermath of
Operation Westend
24
known as Ginti Katai or exclusion
from doing menial jobs (many such
illegal customs in jails fill the pockets
of the junior to senior jail officials as
well as their bosses in the bureaucracy and the ministry). These menial
jobs include sweeping the vast compounds facing the barracks inside
the jail, cleaning the filthy toilets,
working at the furnace called jailkitchen, washing clothes and massaging the jail officials, besides other
degrading activities. Zahoor was put
on the job from the moment he
entered the jail barrack.
On his first night, Zahoor was
shooed away like a dog by the
'established'
prisoners
from
whichever spot he went inside the
closed barrack, thinking it to be his
abode for the night. The entire railway platform-like structure had at
The Indian criminal justice system from the
days of the British Raj is based on one
premise - innocent till proved guilty! Yet
the reality is exactly the opposite. It is
simply, punishment and more punishment
for the undertrials till they can prove
themselves innocent
India, millions of undertrials go
through hellish lives for months and
years together - only to be acquitted
by the lower courts after a prolonged
trial, for lack of 'proper' evidence!
Picture this - Zahoor was caught
on charges of gambling and sent to
judicial custody in Ghaziabad district jail. He was a migrant labourer
from Bihar and no one in his family
came to know of his incarceration.
Being poor and uneducated he could
not keep in touch with them and
hence no one came to see him for the
five months that he spent in that jail.
In jail, as Zahoor did not have the Rs
1,100 to pay for the illegal custom
least 250 profusely sweating
inmates, much beyond its capacity
of accommodating 60 persons. The
air was too heavy to breathe and still
worse was the fact that Zahoor got
some space to sit only beside the toilet, from which a foul stench
emanated. At five in the morning he
stood along with another prisoner
for counting and then got some
watery porridge in a plastic teacup
for breakfast. Then the menial jobs,
intermittent volley of expletives,
massaging the feet of jail staff followed until lunch, which consisted
of a few cardboard like roties and
yellow watery dal or lentil.
COMBAT LAW MARCH-APRIL 2008
TA L E S F R O M P R I S O N
Very soon Zahoor forgot the outside world and resigned himself to
life in this hell. He even felt happy
that after a couple of months he was
not so frequently beaten up with lathies by the lower officials of the jail
who established their fear, awe and
authority among the inmates by beating poor prisoners like Zahoor mercilessly. He forgot the taste and the
desire for normal roties and never
complained about jail food.
I was incarcerated in the same jail
during the time when we tehelka.com
journalists were slapped with false
charges by the hostile government of
the day for doing a sting operation
called 'Operation Westend' exposing
corruption in high places responsible for defence procurement. I found
Zahoor to be always behaving like a
threatened puppy, but he was also
always smiling. I felt sympathetic
towards him as I always found him
doing menial jobs. When I was shifted to the hospital cell inside the jail
for safety reasons, Zahoor used to
wipe the floor in front of it.
Gradually, we started talking and he
became so familiar with me that he
would sometimes ask for Rs 5 or 10
to buy vegetable curry from an ille-
The sad part is that
the lower courts,
despite the
knowledge of overcrowding in jails and
police excesses and
inhuman conditions in
the jails, often deny
bail, as if denying bail
is a career building
exercise. Bail is the
discretionary power of
the judicial officer or
the magistrate
www.combatlaw.org
gal canteen run by a deputy jailor
(which clearly gives away the reason
for the inedible food served officially to inmates). Taking advantage of
the friendship that developed
between us I asked him his story. I
wrote an application on behalf of
Zahoor, stating that he was a very
poor person and has already spent
so much time in jail for a crime that
did not deserve so much punishment and that he should be let off
with a fine. It took Zahoor at least
three appearances in the court
before the policemen escorting him
allowed him to go near the magistrate to handover the application.
Zahoor is just one face among the
millions who are down on their luck.
My own experience and investigation
tells me that this is typically true for
jails anywhere in the country. The
people change but the conditions
remain the same. And remember this
is a jail for the undertrials who are
supposed to be 'innocent till proven
guilty'!
According to the last survey on
prisons in India done in the year
2005, nearly 70 percent of prisoners
are under-trials! The all India conviction rate for IPC crimes like murder,
attempt to murder, culpable homicide not amounting to murder, robbery, burglary, theft, counterfeiting,
dowry, molestation, rape, kidnapping and dacoity is around 30 percent whereas for crimes coming
under Special and Local Laws (SLL)
like Arms Act, NDPS Act and
Gambling Act is 60.6, 60.9 and 85 percent respectively. This on its own
proves bungling at the level of filing
the FIR and making arrests. Since the
laws for arrest in the SLL crimes are
stricter and follow some checks and
balances, only actual offenders are in
the net and hence evidence precedes
conviction. But there is a lot of
bungling and false arrests in the case
of IPC crimes that result in a low rate
of conviction.
The sad part is that the lower
courts, despite the knowledge of
over-crowding in jails and police
excesses and inhuman conditions in
the jails, often deny bail, as if denying
bail is a career building exercise. Bail
is the discretionary power of the judicial officer or the magistrate.
Sometimes a murder accused will get
bail within two days while another
Zahoor is just one
face among the
millions who are down
on their luck. My own
experience and
investigation tells me
that this is typically
true for jails anywhere
in the country. The
people change but the
conditions remain the
same. And remember
this is a jail for the
undertrials who are
supposed to be
'innocent till proven
guilty'
charged with robbery, will be denied
bail for months on end on account of
the 'charges being serious in nature'!
This begs the obvious question -what charges are more serious than
others? Finding answers for inadequacies like this is at times more difficult than counting the stars.
Another dictum of the Indian criminal justice system, that 'Bail is the rule
and jail is the exception' is conveniently forgotten.
While there are discussions on
disposing off pending criminal cases
by fast track courts, one hardly gets
to hear about improving jail conditions and tackling corruption that is
leading the prison system from bad
to worse.
Can anybody take responsibility
for the plight of the millions of prisoners who are punished first and
who later turn out to be innocents by
pronouncing - Ba-izzat bari kiya jata
hai (You are honourably set free).
—The writer is a journalist
25
TA L E S F R O M P R I S O N
My Days in Prison
omewhere during the last days
of my imprisonment the semiliterate jail librarian, a turbaned
Sikh gentleman, serving life sentence
in Delhi's Tihar Jail summoned me.
He asked me to prepare a list of
books as Delhi Government had
approved a budget of Rs 30,000 for
the jail library.
Literally burning midnight oil, I
prepared the list without the help of
any catalogue, and out of my own
memory culled out a list of law
books, novels, jail diaries of leaders
and books for those pursuing courses from the Indira Gandhi National
Open University (IGNOU). I also
included jail manual and a few
books on civil liberties and rights of
prisoners. The librarian submitted
the list to the assistant superintendent without reading it. And to
prove his intellectual acumen, he
boasted that it was he who had prepared the list.
But, a misfortune was awaiting
the poor librarian. Within few days
he was summoned to jail control
room and severely thrashed. The jail
administration was furious over
inclusion of books on prison laws
and prisoners' rights in the list.
Sardarji first tried to protect the bal-
S
A journalist's
sojourn through the
big, bad world
called Delhi's Tihar
Central Jail because
of a trumped up
case of treachery
and treason
unfolded an entire
savage world.
Among other things
this meant Indians
enslaving Indians,
writes
Iftikhar Gilani
26
books on prison laws were "proscribed" inside the jail. But since jail
administration was now expecting
my release anytime, they somehow
pardoned me after a mouthful of
angry chidings. Though, I was
spared of further harassment, they
did not pardon the poor librarian.
Not only he was removed from the
white-collar post, he was shifted to
Jail No. 2, the convict jail to work in
prison factory as a labourer for the
rest of his term.
None of the books ever reached
the library. Neither anything could
be known as to what happed to Delhi
government budget for purchasing
books for prisoners. This bares the
fate of our much touted prison
reforms. The relationship between an
inmate and jail administrator still
continues to be that of a slave and the
master. They believe the cliché that
slaves don't deserve information for
this could lead to their emancipation.
Knowledge is the key for emancipation, acquisition of knowledge about
the prison laws by the prisoners is an
anathema to the jail administration.
Famed police officer Kiran Bedi
had tried to introduce a process of
reforms in Tihar jail about a decade
ago. But just ruins of that process are
Famed police officer Kiran Bedi had tried to
introduce a process of reforms in Tihar jail
about a decade ago. But mere ruins of that
process are now left behind
loon of his intellectualism, but brutal bashing was something more
than he could bear. Soon he fell on
the feet of assistant superintendent
begging for mercy and straightaway
gave my name as author of the "mischievous" list. Now it was my turn.
I too got a call from the control
room,
commonly
known
as
"chakkar". By the time I had got
wind of what has been on. I
explained that I did not know that
now left behind. For Example in the
"Mulahiza" ward meant for the first
timers, a depleted sign board outside
barrack No. 10 announces it as
"Kiran Theatre,". It used to be a theatre during Bedi's term. But, now
everything has returned to 'normal'.
The Kiran Theatre is now a barrack
like other barracks, bursting beyond
capacity. The Ward had around 500
inmates when I joined while its
capacity was t house less than 200.
COMBAT LAW MARCH-APRIL 2008
TA L E S F R O M P R I S O N
Similarly, the IGNOU ward was
started in 1994 during the period of
Kiran Bedi. One old inmate Atbir,
who has done graduation and was
enrolled in post graduation would
remind how two earlier inmates
Shahabuddin Ghauri and Ghulam
Nabi War had nurtured the study
centre with active support from Bedi
and then superintendent Tarsem
Kumar. As Shahabuddin Gauri was a
former research scholar from
Jawaharlal Nehru University (JNU),
he tried his best to create an ambience like that of his alma mater.
The IGNOU Study Center was
initially started in one barrack of
Ward no 11 in Jail No. 3. However,
overwhelming response of the
inmates forced the authorities to
expand and the whole ward no 11
into an abode for "reformation
through education." Later on a study
centre of the National Institute of
Open Learning was also started for
imparting school education under
the open learning system.
One barrack in the ward has been
turned into a library another barrack
houses computer lab, commercial art
and typing classes while two barracks are reserved for classrooms.
The computer lab had three obsolete
machines in the name of computers,
donated by a reputed private company engaged in the computer education in India and abroad. The social
welfare officer told me that they
donated computers not worth more
than Rs. 50,000 and yet made the
administration to spend almost Rs
1lakh rupees on publicity for the philanthropy.
During Bedi's period, the inmates
managed the study centre and no jail
official was allowed to interfere. Old
inmates say that Shahabuddin
Ghauri and Ghulam Nabi War had
introduced weekly debates to recreate an atmosphere of a JNU hostel.
The practice continued till recent
past.
Now the study centre is a poor
shadow of its past. The blame for this
mess squarely rests with the jail
administration. During my stay in
the ward, an auto rickshaw driver, a
semi-literate, was entrusted with the
job of "principal". The result was
there to see; he hounded the highly
qualified teachers, who happened to
be prisoners. He was removed from
www.combatlaw.org
the "post", when the new assistant
superintendent of the ward once
asked him the spelling of the word
"principal."
Bedi's success in introducing
reforms lied in the fact that she was
in direct contact with prisoners.
Almost every day, she would visit
wards and interact with inmates. But,
it also seems that her experiments in
Bedi's success in
introducing reforms
lied in the fact that
she was in direct
contact with
prisoners. Almost
every day, she would
visit wards and
interact with
inmates. But, it also
seems that her
experiments in Tihar
were both simplistic
and populist. Her
programmes have
not only missed the
real issues but have
failed to address the
social realities of an
Indian prison
Tihar were both simplistic and populist. Her programmes have not only
missed the real issues but have failed
to address the social realities of an
Indian prison. For example: she
banned smoking inside the prison.
This singular action gave rise to the
easiest and most common handle for
illegal aggrandisement to the jail officials. There are many prisons in India
where smoking is not prohibited.
Besides, the prisoners have found
ways to manufacture cigarettes in the
jail itself. They use fine paper for the
purpose. I had to guard my English
dictionary virtually 24-hours a day as
its fine quality paper qualified well
for cigarette manufacturing inside.
Some people had given some
copies of Holy Qur'an with English
translation for distribution among
the prisoners. The jail superintendent refused to distribute the same
among the prisoners as the paper
was of same fine quality used by
inmates for cigarette manufacturing.
"Since the Tihar prison has a very
large percentage of Muslims and
anybody seen using the Holy book
for the purpose had a potential to
spark a bloody row," he feared.
Prohibition of non-vegetarian
food in the prison is another such
illogical decision which has provided
another opportunity to corrupt jail
officials to mint money.
The marvelous system of redressal of grievances introduced by Bedi
cannot be resorted to in the present
day Tihar. She had introduced petition boxes to allow inmates to air
their grievances. The complaint
boxes, modeled like postal boxes are
still seen hanging on the walls outside the deodhi, jail office and near the
gates of every ward. The mobile petition box, called the DG's petition box
also continues to survive. Yet no
prisoner dares to make any complaint in these boxes. Reason is that
the DG's office sends all the petitions
to the respective jail offices for action.
The action of the concerned jail
administration is not difficult to predict --- they do not act on the complaint but act against the complainant.
Journey to court is the most torturous exercise for a prisoner. First,
they are herded to the deodhi as early
as 6 am and then dumped in the judicial lockups at the most 8 pm in the
cramped conditions.
The whole exercise is a sort of
punishment so much so that some
prisoners say that a day spent on
going to court is equal to 10 days in
jail.
The jail administration relies
heavily on punishments to keep the
27
TA L E S F R O M P R I S O N
inmates disciplined. The work culture of the jail administration represented punitive theory of incarceration- both in letter and spirits. They
have devised ingenious ways of punishing the prisoners.
Frequent shifting of the prisoners,
though, originally meant to prevent
formation of criminal gangs, has
been perfected as a form of punishment. Jail authorities keep on shuffling the prisoners like a pack of
cards, shifting them from one ward
to another. Once a prisoner completes six months in Mulahiza, he is
sent to ward no 5 or 6 as per first
alphabet of his name. Some of them,
mostly the rich and powerful, are
sent to ward no. 7. Some are admitted
to the ward no. 11, also called the
IGNOU ward.
Sending prisoners to another
ward is called "ginti katna." (Striking
off the rolls) The upheaval creates
most touchy scenes. The inmates
who develop a sense of camaraderie
as they live together for months are
separated and sent to different
wards, perhaps never to see each
other again. Mostly, this is done as
form of punishment. Besides, this
shifting is always sudden and swift,
even without a chance to say goodbye.
Likewise, segregation of prisoners is a perfectly legitimate practice
aimed at separating first-time offenders from hardened criminals.
However, this practice has degenerated into a form of punishment and
degradation. An assistant superintendent segregates the new entrants,
usually on the next day of their
admission, in the Mulahiza ward as
per the alleged offences so that firsttimers and small time criminals may
not come in contact with the big
offenders. But in practice, this is a
sort of humiliation session for the
new entrants. While those charged
with murders, dacoity, robbery and
other heinous crimes are spared, others charged with lighter offences like
pick-pocketing, stealing etc are
humiliated and made fun of. The
prisoners charged with any offence
like espionage, etc, are considered as
"anti-national" by the "super-patriotic" jail officials who subject such suspects to severe punishments and
worst humiliation.
Lodging the prisoners in so-called
28
High Security ward, called HIGHLIGHT in the Tihar parlance, is a serious punishment. It is a jail within the
jail. The prisoner is kept in solitary
confinement at least 23 hours a day.
Another severe punishment is
putting in "kasoori" cells. High
Security ward has its own "kasoori
cells". "Kasooris" are provided meals
only once a day. They are not provided with a fan. Ordinary prisoners
dread being put in the solitary confinement as "kasoories" so much so
Frequent shifting of
the prisoners,
though, originally
meant to prevent
formation of criminal
gangs, has been
perfected as a form
of punishment. Jail
authorities keep on
shuffling the
prisoners like a pack
of cards, shifting
them from one ward
to another
that even a severe beating at the
chakkar is preferred to this.
Long spells in the Highlight result
into grave psychological damage to
the inmate. Anybody who is shifted
from the high security ward to a general ward after a period feels out of
place and implores the jail authorities
to put him back in the Highlight.
Mulaqat room is one of lucrative
spots for the jail staff. It is one of the
important spots where promised
payments to jail officials are made.
The jail officials posted there have
chance to mint money as the relatives
of the prisoners are present there and
the prisoners may ask them to give
money to such official. Taking the
home cooked food inside the jail
could cost as much as Rs 500. Upright
officers like the one assistant superintendent Rajendra Kumar have no
place there. During my stay in the
jail, he was posted there but removed
as he was an obstacle to other officials' wont to make money.
An interesting incident occurred
with my fellow inmate Amit (name
changed). One day an assistant
superintendent posted at the mulaqat
room met Amit. The assistant superintendent used to take Rs 100 from
Amit's brother every time he came to
see him.
"Amit, tumhare bhai se baar baar sau
rupaye lena achchha nahin lagata hai,"
(Amit, it does look good that your
brother gives Rs 100 every time he
comes to see you) the warder said to
Amit.
Amit was surprised; he thought
perhaps the assistant superintendent,
who was notoriously corrupt might
had taken sanyas and does not want
to take money anymore. But the
warder soon added "Us se kaho aek
sath paanch sau rupaye de diya kare taki
baar baar nahien dena padey," (Ask him
to give me Rs 500 at one go so that he
need not to pay time and again) the
official told him unabashedly.
The jail officials did not lose any
opportunity that came their way. One
day there was a fire in the washerman's store room. The warders asked
all the inmates not to claim their
clothes given for washing or ironing
as all of them had burnt. Next day,
we saw some warders wearing those
very clothes.
Jail administration has many biases and prejudices. Their treatment to
foreigners is a lot better than the
Indian prisoners. Among the foreigners, white-skinned Europeans get a
better deal over the dark-skinned
Africans. The jail officials take better
care of the mighty and rich lodged at
the Tihar than those who happen to
be poor.
Even-handedness in dealing with
the religious matters of the inmates is
another area needing urgent attention. This is all the more necessary
since the jail has a disproportionately
higher percentage of Muslims among
the prisoners. I did not come across a
single jail official who was a Muslim.
Muslims comprise more than 35 percent of the jail population while their
COMBAT LAW MARCH-APRIL 2008
TA L E S F R O M P R I S O N
share in the country's population is
around 12 percent only. Most of these
Muslim inmates are inside for
allegedly committing petty offences.
One of the most shocking incident, bordering to open hostility
against Muslims and their faith,
occurred during my stay at the jail.
In September, suddenly one afternoon a convict munshi Kishan came
with a list of prisoners and asked
these prisoners to come out with
their bag and baggage. Almost all of
them were Muslim inmates. I was
also in the list. We were asked to
march towards chakker to be lodged
in ward no 5. The dreaded stories of
ward no 5 sent chills down my
spine. All of us pleaded to him that
we should be allowed to stay in the
ward as we were pursuing courses
from the IGNOU. Some of us were
also teaching the inmates.
One of the inmates, Badar Mohsin
(name changed), was teaching mathematics to the students enrolled in
the IGNOU courses. It was not an
easy task to find an alternate teacher
for the subject. In fact, nobody could
be found to teach mathematics during the entire period of my stay at
Tihar. Another inmate was doing
Masters of Business Administration
(MBA), the only student from the
entire Tihar community enrolled in
the programme.
Munshi Kishan did not pay heed
to our pleadings. He had definite
orders. Upon reaching Ward No. 5,
mathematics teacher Badar Mohsin
was soon entrusted the degrading
"Sumo driving"- euphemism for collection and disposal of garbage in
that ward. Many amongst us were
given the job of cleaning filthy toilets.
Though, I was later returned to the
IGOU ward, other continued in the
dreaded ward.
The real motive behind this sudden reshuffling of Muslim inmates
unfolded a few days after. One day,
while unlocked at 5.30 am at usual
time, all inmates were rushed back
into their barracks. Nobody knew
what had happened. Some speculated that the Indo-Pak war had erupted
while others tried to speculate something else. All the inmates remained
locked for the entire day.
Next day, the locks were opened
and it was found that authorities had
demolished two small open mosques
in ward no. 10 and 11. The places
were actually open platforms, without any roof, with a small almirah
where copies of Holy Qur'an were
kept. Its wall facing the Mecca was
given shape of a mehrab, a round typical Muslim architectural shape.
Though the Delhi Jail Manual
expressly prohibits gathering of prisoners for the performance of religious functions, Kiran Bedi had
demarcated places for mandir and
mosque in every ward so that prisoners might have some place where
they can have some sort of spiritual
solace.
The explanation offered by the
authorities was ingenious. The
authorities told the inmates that they
had found some improvised knives
buried under the mosque. It was
unconceivable as to how such items
could have been buried under the
mosque without damaging the pucca
cemented floor.
A number of temples dot the
roads inside Tihar. Besides, there is
big Hanuman Temple inside the Jail
no 3. A mosque still stands in ward
no 5 and the same has not been
Though the Delhi Jail Manual expressly
prohibits gathering of prisoners for the
performance of religious functions, Kiran Bedi
had demarcated places for mandir and
mosque in every ward so that prisoners might
have some place where they can have some
sort of spiritual solace
www.combatlaw.org
demolished. Perhaps the Muslim
population there was too large to be
shifted elsewhere in the jail. Out of
the 1200 inmates lodged at this ward,
Muslims were almost 500.
Existence of religious places offers
a good measure for reformation of
the prisoners. However, the same
cannot be said about the self-styled
religious preachers visiting the jail.
Some of these preachers were highly
despised by the inmates. Almost all
the prisoners were repelled by their
self-righteous haughtiness. These
preachers treated all the inmates as
hardened criminals and considered
themselves as some messiahs send by
the God to correct and reform them.
All these preachers invariably exhorted the inmates to join their group
whenever they were out of the jail.
The only exception I found was
Father Paddy Meagher of Vidhyajyoti
College of Theology. He never
indulged in sermonising. He always
seemed interested in hearing the
inmates and offered counseling without unnecessarily burdening them
with the theological interpretations.
Many inmates, especially foreigners,
felt attached to him.
While religious places like temples and the mosques were visited by
the prisoners voluntarily to offer
prayers, the jail administration had to
use force to make these prisoners listen to the harangues of these preachers.
Kiran Bedi had initiated a programme for involving the community in her ambitious reform work.
Under the programme several nongovernmental organisations were
invited to contribute in the reformation programme. Today as many as
29 non-governmental organisations
are participating in the programme,
though, during my incarceration in
the jail, I saw very few of them.
Though I saw names of two
Muslim bodies among the NGO's
involved in the reformation programme of jail, Tableeghi jamaat was
the only Muslim organisation I saw
visiting the jail. However, they had
the same self-righteous arrogance.
They were ridiculed by the inmates
as the allegory and metaphor used by
them were simply bizarre. Their visits stopped after dismantling of the
mosque in our ward.
I never saw any visitor from the
29
TA L E S F R O M P R I S O N
other Muslim organisation, the Delhi
Dawakhana, during my stay in the
jail. Their annual report published in
Tihar literature mentions a number
of activities inside the jail besides
details of a lecture programme
undertaken by them aimed convincing the inmates about sheer incompatibility of terrorism with the teachings of Islam. Did this organisation
really think that the Muslims inside
Tihar were terrorists?
Many Hindu religious organisations regularly visited the jail. Sahaja
Yoga, Aasa Ram Bapu Ashram and
Brahmakumaris were regular visitors. The jail administration, though
corrupt and insensitive most of the
times, used to turn religious at the
time of arrival of these preachers.
They routinely forced inmates to
hear the high-pedestal sermonising
in the gatherings. Many practices
adopted by these groups were alien
to the common Hindu inmates;
therefore, many refused participation in such rituals.
One day an interesting situation
arose during a programme organised
by the followers of Sant Aasa Ram
Bapu. A few disciples had come to
the jail, the jail officials had literally
forced all the inmates present at the
Even-handedness in
dealing with the
religious matters of
the inmates is
another area
needing urgent
attention. This is all
the more necessary
since the jail has a
disproportionately
higher percentage of
Muslims among the
prisoners
30
jail to participate in their programme. The programme started
with much fanfare. After a long sermon, one preacher asked the prisoners to take oath they would become
good humans from now onwards.
An inmate stood up and protested their self-righteous attitude and
said the he was always a good person. He had been spoilt by putting
him behind the bars as he had not
committed any offence.
Another prisoner advised the
preachers to preach the Delhi Police
so that they might not fabricate cases
against the innocents who eventually
join the ranks of criminals. This
would lessen the self-assumed burden of the preachers as there would
be lesser criminals in the society, he
taunted.
At the end of the programme,
these preachers asked to prisoners to
stand up and participate in the Aarti
(worship) of Sant Aasa Ram Bapu.
This was too much for the inmates.
There was a big uproar, the inmate
refused to accord status of a bhagwan (god) to the Sant as he was a
mortal human. The preachers had to
make a hasty retreat.
In jail there is a true master-slave
relationship between the prisoners
and the jail administration. If both
son and father happen to be in jail the
soon would remain quiet even if the
father is beaten and vise versa. I saw
it happening practically with a
father-son duo.
This explained to me the mystery
behind the docility of the slave population of Roman Empire. Masters
always created such an atmosphere
of lurking fear where subjects could
never think beyond their own safety
from the depredations inflicted own
his fellow slaves. This lurking fear
was used to engender a culture of
servility. I witnessed this culture in
truly naked form in the Tihar Jail.
A whole set of dos and don'ts had
been in vogue for the prisoners. The
instructions had no logic except the
perpetuation of servile mentality
among the inmates. This unwritten
code of conduct mandates following
for the inmates:
„ They shall not use cups for having
tea
„ They shall not sit on any chair;
they can sit on stools only.
„ They shall always walk in queues
Kiran Bedi had
initiated a programme
for involving the
community in her
ambitious reform
work. Under the
programme several
non-governmental
organisations were
invited to contribute
in the reformation
programme. Today as
many as 29 nongovernmental
organisations are
participating in the
programme, though,
during my
incarceration in the
jail, I saw very few of
them
in the side of the road; they are not
allowed to
walk
through middle of the road.
„ They shall stop whenever they see
any jail official approaching him
and shall not resume walking till
he goes away.
„ They shall stand with folded
hands while talking to any jail official and shall always address him
as "Sir."
„ While visiting any jail official, they
will leave their chappals or foot
wares outside the room.
Anyone breaking any of the
above, even by mistake, was in for a
harrowing punishment. I witnessed
a few incidents where the such
inmates were punished for violation
of this unwritten code.
„
COMBAT LAW MARCH-APRIL 2008
S TAT E R E P R E S S I O N
eeks after the serial bomb
blasts in a number of court
premises in UP, a Calcutta
Electricity Supply Corporation
(CESC) employee, Aftab Alam
Ansari, was picked up from Kolkata
by the CID branch of West Bengal
Police. He was handed over to
Special Task Force of UP Police and
framed as one of the main accused
behind the serial blasts.
He was tortured for 22 days that
he spent in police custody after his
arrest on December 27, 2007 in order
to make him confess that he was
Mukhtar alias Raju, resident of
Malda district in West Bengal, and
had Rs 6 crores in his bank account.
Aftab had a valid identity card of
CESC, a medical card, a service card as
well as other valid identity proofs on
the basis of which the courts pronounced him innocent -- but the police
did not care and never acknowledged
this till court came to Aftab's rescue.
This clearly indicates that his arrest
was motivated.
To add insult to injury, Aftab
along with other arrested members of
the Muslim community, was subjected by a section of the press in UP to a
malicious campaign where they
termed him and other arrested men
as terrorists rather than accused
awaiting trial in court. Such trial by
media is not only unethical but also
violates the basic ethics of responsible and fair journalism.
The grim reality is that but for the
combined and persistent efforts by
his mother, lawyer, some conscientious journalists and People's Union
for Human Rights (PUHR), he would
have been left to rot in prison and
could never have been declared innocent and set free by the court.
The Jawaharlal Nehru University
Students Union in conjunction with
the Forum for Democratic Initiatives
as also Aftab's lawyer, Mohammed
Shoaib are demanding compensation
from concerned authorities for falsely
implicating Aftab in a case of such
manipulative nature. Upon meeting
with the Chief Minister of West
Bengal, Buddhadeb Bhattacharya,
Aftab was promised a compensation
of Rs 80,000 as per demand made by
him. Yet only Rs 30,000 was sanctioned to him.
The groups supporting him are
calling for an end to witch hunting
W
www.combatlaw.org
‘M’ for Muslims
Back from the brink a Kolkata power corporation employee,
Aftab Alam Ansari points to a new trend through his own
case where police indiscriminately picks up Muslims to
brand them as terrorists as they are becoming an easy prey
to the whims of the world, writes Aanchal Khurana
against minorities in the name of security. They make a strong plea for withdrawal of draconian laws like the
TADA,
POTA,
AFSPA
and
Maharashtra Control of Organised
Crime Act as they give undue impunity to police that exercise arresting powers in a random and unfair manner.
As per provisions of section 197 of
the Criminal Procedure Code (CrPC),
prosecution of State and
Central
government
officials requires permission from the concerned State or Central
government. Yet the
question is, if everyone
is equal in the eyes of
the law, why should
anyone get immunity
from prosecution on
violating
the
law?
Moreover, it is required
of the central government in view of
Aftab's case, to intervene and take
suitable action against guilty police
personnel of UP and West Bengal.
Sections 330 and 331 of the Indian
Penal Court (IPC) make it a penal
offence to cause hurt to a person in
order to extract a confession, and in
Aftab's case these should be used to
punish the police officials responsible for committing atrocities.
This pattern of mindless arrests
for the sake of branding innocent persons as terrorists and resorting to illegal relentless torture seems to be the
latest trend that police has been set
on to where release of the accused is
exceptional and possibly only when
hell were to freeze over. In case they
ever succeed in being proven innocent, any redressal or compensation
is seldom granted for the brutalities
faced by them. Seldom are the perpetrators (police personnel responsible)
ever punished or even held accountable even after their conspiracy is
exposed. Never is this followed by as
apology despite the shabby treatment of victims who in all likelihood
would have to live with a life-long
fear. The social stigma continues to
make them suffer. In case of Aftab his
incarceration led his sister's wedding
proposal to fall through. It was simply heart-breaking to see Aftab break
down as he spoke of how his sister
had to suffer. “They didn’t want to
bring a terrorist’s sister in
the family.”
In the backdrop of the
debate around India ratifying the UN Convention
Against Torture, it seems
highly unlikely that it will
amend the existing provisions in the law that is
essential for incorporating
the mandate of the CAT. In
light of these existing draconian laws, the UP Bar
Council passed a resolution banning
any lawyer from taking up cases
involving "suspected terrorists". This
repudiates their basic right to legal aid.
If looked at carefully, these unlawful practices can be interpreted as supportive of the mass genocide or ethnic
cleansing and the state sponsored terrorist profiling targeting Muslims in
the era of the war on terror in the
aftermath of 9/11 WTC attack.
Muslims are an easy target nowdays
worldwide with their public image
being tarred now in India too and that
too, in an unjustified manner.
While the case of the violation of
human rights and dignity of Dr
Haneef sparked a furore a few
months back in Australia and elsewhere courtesy international media
and human rights organisations, in a
secular country like India where
Muslims outnumber those in
Pakistan, this could hardly become an
issue, not to speak of it getting the
kind of fair treatment that it deserved,
courtesy an indifferent media.
„
31
PRISON REFORMS
o we still hold the perception,
"the degree of civilisation is
judged by entering its prisons", as true in the 21st century and
that too, in India? If so, then the concept of "Shining India" or "Incredible
India" with regard to prison administration has to be taken care of. The
structure of prison administration in
India, is mainly governed by the
Indian Prison Act of 1894 and the
state prison manuals. These manuals,
even though modified/ rewritten by
some Indian states, are still archaic in
nature and spirit because of the
Indian Prison Act. If one tries to analyse the benefits flowing out of prison
reforms on the economic, social or
political front, it would become clear
that prison population is miniscule in
overall Indian society, and thereby
getting no significant attention in a
democracy which generally works
through pressure groups. As such,
prison population is no pressure
group, and is shut and forgotten by
society. The total overhaul of the
system as visualised by Mahatma
Gandhi or Jawaharlal Nehru, has not
taken place. Prison reforms have
been caught in a time wrap, one
would say. Only pressure for prison
reforms comes from either human
rights various judgments of the
Supreme Court/High Courts.
D
Primitive prisons set the
clock back
The need for prison reforms once felt by founding fathers
of the nation like Mahatma Gandhi and Jawaharlal Nehru
was conveniently forgotten after Independence, leaving
this raj relic to rot and become virtual hell. This often
exploded through jailbreaks and jail riots that among
other things point to a need for reform. Dr Upneet Lalli,
Deputy Director, Institute of Correctional Administration,
Chandigarh, writes a critical review of the reform process
that has been set rolling not only belatedly but also
moving at an agonisingly slow pace
32
Problems
The problems that beset prison
administration in India are mainly
related to the general apathy towards
prisons and prisoners. Poor physical
infrastructure, sub-human conditions of living, inadequate security,
lack of vocational training programmes, poor medical facilities,
corruption, ineffective data management characterise the condition in
most prisons. It is not that these have
not been analysed. The problems of
prison administration have been
highlighted by various Committees,
particularly the All India Committee
on Prison Reforms (1980-83). What
was said more than 25 years back is
as valid today and there seems to
have been little change in the conditions of prisons. These problems
come to the surface in the form of
either prison disturbances, custodial
deaths or prison escapes and it is
then that the media focuses attention
of the society to prison administra-
COMBAT LAW MARCH-APRIL 2008
PRISON REFORMS
tion and the need for reforms.
Indian prisons are largely overcrowded. The percentage of overcrowding is mainly due to large
number
of
undertrials.
Overcrowding affects overall quality
life in prisons and makes the task to
maintain human dignity, safety and
security of prisoners and prison staff
all the more difficult. Prisons must be
safe and secure places not only for
prisoners but also for prison staff and
persons who visit the prison. When
prison environment becomes unduly
painful, it also becomes harmful.
Prisoners carry the effects of consequences of that harm into the free
world, once they are released.
Ultimately, bad prisons are not only
unpleasant or uncomfortable but also
destructive, and
society needs to
realise this.
Prison statistics indicate that there
are total of 1319 prisons (Central
Prison-114; District Prison-283; SubPrisons-834; Women Jail-14; Borstal
School-12; Open Jails-28; Special
Jails-27; and others-7) in India with
an authorised capacity of 2,52,337
and the inmate population is of
3,75,702 which amounts to occupancy rate of 148.8% as compared to
330% of Zambia and 110% of U.K.
The percentage of overcrowding is
48.8% as on 31.10.2006. Even though
imprisonment rate in our country is
around 30 per one lakh population,
and is quite low as compared to U.S.
with 750 per one lakh population.
However, we have fifth largest prison
population in the world.
Overcrowding is the central and
critical issue for prison administration in the country. It generates cycle
of action and reaction that produce a
host of consequences. It exacerbates
the chronic pains of imprisonment. Is
building more prisons going to be the
solution to the problem of overcrowding? Not really, as experience
around the world has shown that no
matter how much capacity you add
to prisons soon get filled-up. Prison
population is related to the number
of persons who are arrested and sent
to judicial custody. In India, however,
the number of arrested persons is
much more and prison administration has to deal with large number of
undertrials. There is a need to be
focused upon for finding the longterm solution to the problem of overwww.combatlaw.org
crowding. Hence reformation process in prisons is linked to criminal
justice system reforms. The Wings of
criminal justice system are interconnected and interdependent and
working on individual aspects can be
counter productive.
Nature of reforms
There is a need for both the hardware and software of prison reforms.
The hardware of prison reforms comprises improving the physical infrastructure leading in terms of increasing the capacity of prisons, building
more prisons and modernising of
prisons by way of improved technology and security systems, improved
Overcrowding is the
central and critical
issue for prison
administration in
the country. It
generates cycle of
action and reaction
that produce a host
of consequences. It
exacerbates the
chronic pains of
imprisonment
kitchens and mulaquat (visitation)
system, and better medical facilities.
No doubt, this is needed, and better
infrastructure can come with more
finance and focus. Prisons are a State
subject and it is their responsibility to
modernise the prisons.
The Government of India has
launched an ambitious Scheme jointly with state governments for modernisation of prisons w.e.f. 2002-2003
to 2007-2008 having an outlay of Rs
1,800 crores (US $ 450 Million) which
has been extended for another two
years in view of its positive impact.
The central and state Government
contribute funds for this scheme on
75:25% basis. These funds are being
used for construction of new prisons,
expansion and renovation of existing
prisons, construction of staff quarters
and sanitation and water supply in
all existing prisons on 100% level of
satisfaction.
The union ministry of home
affairs is closely monitoring both the
physical as well as financial progress
in the implementation of the centrally sponsored Modernisation scheme
of prison administration by periodical review at national, regional and
State levels.
Some states, have
availed the benefits of the scheme,
while others have shown tardy
progress. It again points out to shaking the apathy.
There is, however, no substitute
for the software of prison reforms.
The other part of prison reforms consist of the software which includes
improving
human
resources,
whether it is development of prison
staff or correctional and training programmes for prison inmates.
Human resource development is crucial for any organisation. The prison
administration has a crucial role to
play in this regard. A very significant
part of reforms are structural
reforms, in terms of modernising the
legislation on prisons and a Model
Prison Manual. Prison organisation
needs to have a vision and a mission
statement for the prison service.
Role of judiciary
It is interesting to note that judiciary
has played a major role in ushering in
the concept of prison reforms in the
country. With Justice VR Krishna
Iyer's judgment in Sunil Batra's case
came the era of judicial activism
which brought forth major changes
in the way prisons are run and the
importance given to reformation process in prisons and the need for
humanitarian outlook towards prisoners. Judicial pronouncements related to prison administration have
mainly been related to the need of
keeping the human dignity of the
persons in mind and dealing with
whole array of issues such as need
for speedy justice for undertrials, free
legal aid to prisoners, right to communication, protection against torture and ill treatment, wages to prisoners and rights of children accompanying women prisoners, etc.
Article 21 of the Constitution has,
33
PRISON REFORMS
indeed, been broadly interpreted by
the Supreme Court while deciding on
rights of people who go behind bars.
Committees
Legislative action for prison
reforms has focused on constitution
of committees. These include various
committees and working groups
both before and after independence.
Significant recommendations were
made by the All India Jail Committee
(1919-1920), Jail Inquiry Committee
(1940). With independence came
changes in the legislature and the
Indian Constitution forming the
ground norm of all legislation. In the
first decade after independence,
focus was on reforms in prisons by
way of the U.N. Expert - W.C.
Reckless
Report
on
Jail
Administration in India (1951-52).
Then the All India Jail Manual
Committee (1957) which framed the
Prison Manual. It was followed by
Working Group on Prisons (1972).
One of the most comprehensive work
on Prison Reforms in the country was
done by the All India Committee on
Jail Reforms (1980-83). Justice AN
Mulla who headed this Committee
expressed his apprehension about
carrying out of the reform process
and observed that the problems of
reforms in prisons cannot be tackled
in isolation. The whole criminal justice administration should act together. In this voluminous report, there
are 658 recommendations relating to
legislation, prison buildings, living
conditions, medical and psychiatric
services, security and discipline, system of classification, work programmes and vocational training,
undertrial and other unconvicted
prisons. Other issues include women
prisoners, children in prison, young
offenders, system of remission, leave
and pre-mature release, community
involvement in correction, aftercare,
rehabilitation and follow-up etc. The
committee also looked at the organisational structure and development
of prison personnel, planning
research and development. It also
suggested a National Commission on
Prisons and came up with a national
policy on prisons along with an
action plan. The need for a consolidated law on the prisons was recognised and stressed by it.
Focus on women in prisons was
34
given by Justice Krishna Iyer who
headed
the
National
Expert
Committee on Women Prisoners
(1986). The most recently constituted
committees include All India Model
Prison Manual Committee (2000);
Parliamentary
Committee
on
Empowerment of Women (2001-02)
and the All India Committee on Draft
Policy Paper on National Policy on
Prison Reforms and Correction
(2006-07). These were constituted by
the Government of India to improve
the prison conditions to the extent as
are conducive to the reformation and
rehabilitation of prisoners in the
changing scenario.
Besides these committees, the
National Human Rights Commission
has been giving directions to prison
administration on various issues like
medical examination, custodial
deaths, release of undertrial prisoners and pre-mature release of prisoners and mentally ill prisoners.
The UN Minimum Standard
Rules for treatment of Prisoners provide the international standards
related to human rights of persons
under detention. The basic principle
is of course of treating persons
deprived of their liberty with humanity and respect for the inherent dignity of the human person.
Model Prison Manual (2003)
It was in the case of Ramamurthy
vs. State of Karnataka (1996) wherein
the Supreme Court had emphasised
the urgent need for bringing uniformity in laws relating to prisons and
directed the central and state governments to formulate a new Model
Prison Manual. The Bureau for
Police Research and Development
(BPR&D) constituted a Model Prison
Manual Committee at the National
level for the formulation of the Model
Prison Manual in 2000. Various
working groups were set-up and the
research materials included the
review of the existing laws, rules and
regulations governing prisons and a
comparative analysis of the provisions of the State Prison Manuals. A
thorough study of the recommendations made by the All India
Committee on Jail Reforms, Supreme
Court Judgments and various international instruments on the treatment of prisoners to which India is a
party was also done. By identifying
the gaps in the provision of State
Prison Manuals, the Model Prison
Manual aims to bridge those gaps.
National consensus was evolved
through a cross-section of prison
administration and experts drawn
from various parts of the country.
The draft was further circulated
among all the states and union territories to elicit their comments and
suggestions. The final draft represents the best of wisdom from all
over the country to bring prison system in tune with the constitutional
provisions, Supreme Court judgments and the international instruments subscribed by India.
For developing prison system in
the country as an effective instrument for the reformation and rehabilitation of offenders, the draft Model
Prison Manual aims at:
(i)
Bringing in basic uniformity in
laws, rules and regulations
governing the administration
of prisons and the manage
ment of prisoners all over the
country;
(ii)
Laying down the framework
for both sound custody and
treatment of prisoners;
(iii) Rationalisation of prison practices to cater effectively to
various categories of prisoners;
(iv) Spelling out minimum standards of institutional services
for the care, protection, treatment, education, training and
resocialisation of incarcerated
offenders;
(v)
Evolving such procedures for
the protection of human rights
of prisoners as they are entitled to within the limitations
imposed by the process of
incarceration;
(vi) Individualisation of institutional treatment of prisoners
in keeping with their personal
characteristics, behavioural
patterns and correctional
requirements;
(vii) Providing a scientific basis for
the treatment of special categories of prisoners such as
women, adolescents and high
security prisoners;
(viii) Outlining an organisation of
the Department of Prisons and
Correctional Services which
can conduct and meet its
COMBAT LAW MARCH-APRIL 2008
PRISON REFORMS
(ix)
(x)
(xi)
(xii)
declared objective and to
delineating the duties and
functions of the staff at various
levels;
Developing
coordination
between the Department of
Prisons and correctional services and other components of
the criminal justice system;
Ensuring availability of the
necessary service inputs from
other public departments in an
efficient functioning of prisons;
Forging constructive linkages
between prison programmes
and community based welfare
institutions in achieving the
objective of the reformation
and rehabilitation of prisoners;
Leaving flexibility in the suggested provisions so as to
allow for adaptation to local
conditions without undermining uniformity in rights and
duties of prisoners.
The Model Prison Manual sets
standards for construction of prisons
and provides for proper maintenance
of prisoners in the form of specifying
the nutritional aspects of diet which
the state governments are supposed
to follow. A review of some of the
State Manuals show that there is a
need to revise the prison offences and
this manual covers 44 various prison
offences along with specification of
major and minor punishment. Role
clarity for prison staff is essential and
this manual helps to bring this out.
Most of the State Prison Manuals
have neglected the area of women
prisoners and their children.
However, this Model Prison Manual
bridges this gap. Even the Supreme
Court in the RD Upadhyay case
(2006) recommended similar provisions related to children of women
prisoners as mentioned in this manual. It is up to the state governments to
take necessary action. Except for
Andaman and Nicobar no other
state/UT has adopted it so far.
Draft National Policy (2007)
A lot of developments and changes
have taken place after the setting up
of the All India Committee on Jail
Reforms (1980-83). The intervening
period of more than 20 years, necessitated the review of the existing policy
www.combatlaw.org
on prisons. The Ministry of Home
Affairs constituted a Committee
under the Chairmanship of Director
General, BPR&D to prepare a Draft
Policy Paper on Prison Reforms and
Correctional Administration (200607). The work of this committee was
to not only review the recommendations made by various committees
but also to make recommendations
related to modernisation and alternatives to imprisonment.
ber of this committee, headed by
Kiran Bedi found discussions with
the stake holders as a most useful
input. The Ministry of Home
Affairs has now circulated this
document and sought comments
of the state government on the recommendations made by this committee. The suggestions/ recommendations made by previous
committees, various commissions
and directions of Supreme Court
have been thoroughly considered
while examining the legal framework on prisons.
„ The committee reviewed the present status of the legal position
and suggested amendments
required on the prison related
laws enacted by the Centre and
States;
„ The committee reviewed the recommendations made by various
committees and culled out tangible recommendations; and
„ It also reviewed the status of
Some of major recommendations are
making the management of prisons
and treatment of offenders a part of
the directive principles of state policy
including the subject of prisons and
allied institutions in the concurrent
list of the Seventh Schedule of the
implementation of these recommendations with reference to
physical conditions of prisons,
condition of prisoners, correctional administration, prison personnel. The committee also reviewed
the issues related to modernisation of prisons and correctional
administration. In addition the
suggestions regarding alternatives
to imprisonment were also discussed by the committee. The
committee after a very broad
based consultative process which
included discussions with major
stakeholders has prepared a draft
policy document. I, being a mem-
Constitution of India, replacement of
Prisons Act, 1894 and revision of
prison manual of all states/UTs on
the lines of the Model Prison Manual
prepared and circulated by the
BPR&D. A new law on prisons based
on model principles and procedures
regarding the reformation and rehabilitation of offenders. In the draft
policy paper on prison reforms,
amendments are proposed in the
Prison Act along with changes in the
preamble of the Prison Act. Scientific
classification of offenders, and treatment of offenders has been given a
lot of focus. Some of the major recommendations are :
Major recommendations
35
PRISON REFORMS
„ Separation of prisoners into different categories - 1) female prisoners; 2) convicts; 3) prisoners having a previous conviction for any
offence punishable under sections
366, 366-A, 376 and 420 of the IPC;
4) political prisoners; 5) female
prisoners convicted for any
offence involving grave moral
depravity; 6) prisoners suffering
from any contagious disease; 7)
civil prisoners; and 8) adolescent
prisoners under the age of 21
years.
„ Solitary confinement in exceptional cases as per the rulings of the
Supreme Court.
„ Insertion of a change in sub clause
2 of Section 34 of employment of
prisoners.
„ Changes in prison offences and
penalties by way of deletion of
sections 44 relating to publication
of penalties. Reclassification of
prison offences as mentioned in
Section 45. Classification of punishments into minor and major
punishment. The harsh punishments like hard labour of section
46 have been done away in the
old Act. Deletion of Section 53
which mentions Whipping and
deletion of Section 57. Redrafting
of section 47 relating to plurality
of punishment. Amendment in
section 54 for offences by prison
officers.
„ Changes in Section 59/Changes in
rules as regards remission,
release and parole. Liberal use of
parole system to help reform
offenders. Provisions of the West
Bengal Correctional Service Act,
1992 related to grant of parole
under section 62 and 63 have
been found fit for insertion in the
Prison Act, as new sections.
Constitution of Board for grant of
Parole at the State level and
District Level Committee on
Parole. Constitution of aftercare
and rehabilitation services for
the prisoners. State Level
Advisory Committee for after
care services.
Other recommendations
Payment of wages to the prisoners Insertion of new section 357-A to the
CrPC 1973 - Payment of compensation to the victims of crime through
sharing of wages of the convicts. Life
36
ments and the home secretaries of the
different states to discuss these recommendations and obtain the feedback of the states.
Conclusion
insurance policies to be made available to the prisoners and the family
members to promote public participation in prison programmes
Some of the other recommendations are - Voting rights to the prisoners, Amendment to section 62(5)
of the Representation of Peoples Act,
1951. Separate Institution for Young
Offenders between 18 to 21 years.
Special provisions for mentally sick
prisoners. Suggestions related to the
implementation of Plea Bargaining.
Amendments in Section 167 of CrPC
related to production of accused persons through the medium of
Electronic Video Linkages. Section
305-A CrPC for the expeditious disposal of cases of undertrials.
Insertion of Section 305B of Cr.P.C.
on the quantum of punishment
emphasising lesser punishment in
uncontested cases. All these recommendations will go a long way in
reducing the undertrial population
in prisons.
Changes in IPC and CrPC
Decriminalisation of certain offences.
Suggestions for change under IPC for
certain crimes by converting them
into actionable civil wrongs which
will be settled by the disputing parties themselves in the court.
Enlarging the list of compoundable
offences and changes in section 53 of
the IPC to include community service
as a punishment. A separate
Committee would examine these
issues.
The ministry of home affairs will
be holding a meeting or a Conference
of the heads of the prison depart-
"Knowing is not enough; we must
apply. Willing is not enough; we
must do." There is much to be done
and much that can be done. I, being
an optimist, do not subscribe to any
kind of cynicism regarding change .It
is bound to occur and is taking place,
so slowly that change is not perceptible. The state has to take all those
steps which make it perceptible like
the telecommunication revolution in
India. Most of the significant changes
in society occur as and when we
realise their need, and back them up
with men, material and finances.
Civil society organisations have an
important role in informing and
involving the public in the reform
process. To be successful and sustainable, prison reforms need political will, an administration able to
deliver change and public opinion to
support it. A commitment in terms of
policy and resources is needed.
While prisoners' freedom depends on
ours, even our freedom depends on
theirs. It is only through reform and
change that society can find true
security.
REFERENCES
1. Lalli, U. (2007). Reference, Observations on it in
'Problem of Custodial Death and Analysis by the
Human Rights Commission'. Research project
that was sponsored by the Punjab State Human
Rights Commission, Chandigarh (2007)
2. Lalli, U. (2000). The Problem of Overcrowding
in Indian Prisons : A Study of Undertrials as one
of the Factors. Unpublished study by I.C.A
(2000).
3. Lalli, U. (2005). 'Modalities to Reduce Undertrial
Prisoners in Prisons'. Research Project by the
Bureau of Police Research and Development
(BPR&D, MHA, New Delhi (2005).
4. Lalli, U. (2005) 'Key Performance Indicators for
the Prison Organisation'. Research Project sponsored by the Bureau of Police Research and
Development
(BPR&D,
MHA,
New
Delhi
(Unpublished).
5. Lalli, U. (2002). Impact of Human Rights
Training Programme on Prison Staff : A
Research Study. New Delhi. British Publication.
6. Government of India : Model Prison Manual for
the Superintendence and Management of
Prisons in India. Bureau of Police Research and
Development, MHA, New Delhi. 2003.
COMBAT LAW MARCH-APRIL 2008
INTERVIEW
Once as Delhi's Inspector General of Police (Prisons) Kiran Bedi was moved by the
plight of prisoners. Many among them wanted to attain some worth and dignity
prompting her to take steps that have now become a landmark of prison reforms. She
talks of her tenure as prison chief and efforts made by her to ameliorate the lot of poor
and hapless inmates to Aanchal Khurana for this exclusive interview for Combat Law
Where there’s a will,
there’s a WAY
Q: You called for a change of approach
towards prisoners once you became
Inspector General of Police (Prisons)
in Delhi. Why weren't there such
reformative steps taken by your predecessors or followed up by your successors? Once you left, the focus was lost?
Is law deficient in this respect? Or is
this because of poor implementation of
laws?
A: It is a matter a personal commitment -- how one commits oneself to the task at hand and
respects the commitment. And
personal style of functioning - personal attitude, for example, one
www.combatlaw.org
can look at something like this and
say three different things. 1) I have
nothing, I can do nothing 2) I have
nothing, but I can raise something
3) I have nothing but since this is
what my job requires I have the
potential to raise resources - I will
do it no matter what it takes. There
is nothing, but they are human
beings here. When I was there,
they were all willing to work and
reform. They just needed to be
motivated and inspired through
persistence and perseverance.
Education is the change agent but
I had no resources, nothing. I
looked at the 10,000 and identified
500 teachers out of them (who
were educated) - we trained them
to teach - not to be teachers but to
teach.
I got blackboards made from my
own factory. The entire jail was
learning. It's like food for all - education for all - 500 classes for 10,000
people or more.
Education material was donated
from schools - notebooks, textbooks,
NGOs, religious institutions for religious texts, school bags, etc. I suddenly had plenty from nothing - all
resource created from nothing.
37
INTERVIEW
Q: The entire criminal justice seems to be
out of gears - in particular, prisons.
Those who enter prisons seldom ever get
reformed. Why is that the case?
A: Each one is becoming part of the
problem rather than the solution. All
a matter of bringing back body clock
- getting close to nature, back to normal, back to normal needs. He won't
commit night crime. Make a routine time to study, time to eat, etc Start the
day with education. Anyone can do
this. It's just too simple.
Q: Video-conferencing instead of producing undertrials before the court is being
opted for. Does this meet the legal
requirement or standards?
A: Yes, it does and it works. There is
a category of prisoners that can be on
video and another that must be presented in person. The process of
weeding out is necessary - or else
people wouldn't appear before the
court for six months or more. And
they have full liberty to speak in front
of the camera. It is absolutely legal. I
support it fully.
Q: Narco-analysis tests or truth serums are they full proof?
A: The matter of brain mapping and
truth serums is before the supreme
court - it can be brought in with safeguards - safeguards exist as found by
the ethics committee in Gujarat headed by the Chief Justice of the High
Court. To overlook the procedure - to
ensure there are no violations of such
pratices should be followed up.
Q: Are these measures pro-prosecution
rather than pro-justice considering how
few the numbers of the convicts are as
compared to those awaiting trial?
A: These measures are pro-justice it is for the purposes to seeking out
the truth. But how does one find out
what's in a person's mind - is he
really a criminal or innocent? If he is
in judicial custody he has an option.
At some stage, you owe it to the victims too. There is a distinction
between rights of the accused and
rights of the victim. Who is going to
talk about the victim? You have to
strike a balance. There is something
called rights and responsibilities.
Accused have rights, but prosecution has responsibilities towards the
victim. If these scientific methods
exist and intrude the privacy of the
38
accused, any arrest is also an intrusion into your privacy for that matter as well. Isn't that a reasonable
restriction? Because you are an
alleged person who has committed
a crime. So if arrests are bonafide
and authentic - so are all these other
processes.
Q: Police are so terribly corrupt in India
and as a result, people are so afraid of
approaching them and cynical about
receiving any kind of help from them
whatsoever. Why is this the case and
what can be done about it?
A: Policing in India is based on lies.
No
registeration
of
crimes.
We don't need torture
if we have scientific
tools of investigation.
Torture is done in
order to get
information. We don't
have forensics like the
western world yet. We
need to develop these
tools. Also preinvestigation,
intelligence watch and
electronic tools of
surveillance. It’s
everywhere but we
don't even recognise
e-mail as evidence
Investigations are padding to get a
conviction. We need internal
reforms of policing. 1) Encourage
free registeration of crimes, 2)
encourage truthful investigation, 3)
present the matters in front of the
court as they are as much as possible, and 4) let the witness speak as
the witness saw rather than as it
suits for the witness so as to make
the authentication of the investigation a task that remains.
Q: Why is torture so widespread?
A: We don't need torture if we have
scientific tools of investigation.
Torture is done in order to get information. We don't have forensics like
the Western World yet. We need to
develop these tools. Also pre-investigation. Intelligence watch. Electronic
tools of surveillance. IT is everywhere but we don't even recognise email as evidence. We need our laws
to be amended in the Indian
Evidence Act. Our laws need to be
updated because they are far behind
our current needs.
Q: Is torture done solely to find out the
truth?
A: Torture is first carried out in order
to find out the truth and then motives
change.
Q: Cearly, prisons are no longer correctional institutions - but seemingly the
tyrannical arm of the State. Would you
agree?
A. That depends on the prison management.
Q: What do you have to say about political interference vis-à-vis police?
A: Political interference is quite considerable in policing, but not in prisons (Prison management is a neglected institution. It is now coming in the
mainstream.)
Q: It often seems that the State wants to
confine not a person alone but also his
dissenting views or mission. What would
you say to that?
A: Prisons are under government's
control. Policing is under the home
ministry. Nobody enters prison without being sent or remanded by court.
Q: Why can’t prisons be partially or
entirely be under the jurisdiction of the
department of social welfare? Why there
are no trained psychologists in prisoner
management?
A: Prison is a judicial institution.
Q:
What about the HIV positive
inmates? Why aren’t prisoners given
protection against this? Why is HIV test
voluntary - why not a requirement?
A: It wasn't an issue back then. It
should be a joint decision of the doctor and the patient - it is a matter of
education - encouraging them to voluntarily undergo tests.
COMBAT LAW MARCH-APRIL 2008
INTERVIEW
Q: What about distributing condoms to
prisoners?
A: The moment you give condoms
and if someone has unnatural sex,
you are abetting crime because it is
an offence in the IPC.
always be lifted by the state (so does
not give them impunity) - the government can say go ahead and prosecute - discretion can be used or not
used - but at least you have cover for
the innocent.
Q: Can women be better prison administrators?
A: yes. Soft skills are higher in
women. While hard skills come anyway with the chair and the power. It
is easier to train a woman to become
a better prison manager than a man it's the perfect match of the characteristics of a mother and father - so with
so many fathers, there better be a
mother too. I used be soft when I
needed to be, hard when I needed to
be. As a woman, when you are
tough, you are not perceived as
revengeful. You are considered to be
doing it for the larger good. So this
perception came to my advantage.
Q: Are Muslims among those who are
over-represented in jails as pointed out
through media reports?
A: They are there - for drug trafficking and peddling crimes especially.
One needs to reform them - work
with communities from outside.
That's why their education inside
prison is so important. I had to bring
in Muslim teachers from outside
(volunteers) - that motivated and
inspired them.
Q: What problems do prison administrators face? What were your greatest challenges?
A: Shortage of resources. If you are
resourceful, community workers and
other support from society are easy to
come by. When society sees that the
demand is for selfless reasons, they
like to come forth and cooperate.
I had the three C's model - collective
(people from outside), corrective
(people inside together with people)
and community based (children
coming to meet parents, etc)
A job like this calls for transparency
(petition feedback box - enabled
direct and reliable communication
between inmates and me - got 50 letters a day that gave me a pulse of the
prison - I knew the medical state, the
communal state, plans of escape, corruption, happenings, etc)
Q: So, if you were made aware beforehand of these crimes, were you able to
prevent them?
A: Ten thousand people are watching
one corrupt constable, how can he survive? And yet it also definitely calls for
tremendous unfailing vigilance.
Q: What would you say about Model
Police Act and the prior sanction called
for prosecuting an erring police personnel?
A: Honest police officers can be
harassed too. Offending ones - can
www.combatlaw.org
Q: Why are convicts and undertrials put
together?
A: Some convicts are also undertrials, where do you put them?
But real undertials (huge majority) yes they get contaminated - separation
from gangsters from medium or low
security prisoners. We did that in
Tihar. Official secrets act - every acquittal case does not mean false case. Every
case that court does not accept does
not mean it was a false case. May be
evidence was insufficient.
High security ward means separate cell for each prisoner. At some
stage you are mixed up with everyone - too many people - you can only
minimise - Police must arrest correctly and truthfully - must arrest as
a last resort and not a first resort you can start interrogation only after
arrest - that's the problem. There is
always a victim - Judge evaluates
individually - they are individual
assessments that are no checks and
balances. These are imperfect human
sciences.
Q: Last summer quite a few prisoners
died in Tihar Jail. Why?
A: Tremendous heat, suffocation.
Now I am told they have put up coolers. More water availability (can
avert such a thing).
Q- Do you have any regrets with regards
to your term in office?
A: I wish I had one more year - I
would have set up polytechnics
inside so we can give vocational
training to people and then make
them earn in a big away, make pris-
oners pay for their imprisonment,
part of their wage going to children's
school fee - joint ventures after learning a trade.
Q- How do you assess your tenure as IG
(Prisons)?
A: Most reformative and most
rewarding work one can do is looking
after a prison - you have captives and
you have their time in your hands.
Keep doing - so each one succeeds.
There’s also the concept of SIL - seeing
is learning: prisoners looking to each
other for support and inspiration.
Q: What should be done about police?
A: Stop writing falsehoods - they
don't lodge FIR. Crime control begins
with admission to police - so the
criminal is on the run.
Q: Is this because police are badly paid?
A - No they're burnt out.
Q: But bribes work…
A- Well motivation (does work).
They want to keep numbers (of
crime) low. Because acknowledging
means increasing budget (hiring
manpower etc) - increase police personnel (it is lowest in the world).
Delhi police this year claimed crime
is fallen since last year - so obviously they are not going to increase
personnel. There is a trust gap they lie.
This is why recently we have
launched
a
new
website,
"saferindia.com". The website is
aimed at extending help to those
whose complaints are not heard by
the police.
The portal, launched under the
project "Mission Safer India" by my
non-government organisation India
Vision Foundation, will act as a
bridge between complainants and
police services to seek appropriate
redress.
It is expected to work as a pressure
group to make the voice of the
aggrieved heard. The website will
entertain only those who went to
police stations but their complaints
went unheard, unacknowledged or
not registered. People can log on to
the website and e-mail their complaint to the group which will forward it to the State police headquarters - and CC to the complainant. „
39
ROT IN PRISON
is produced before him;"
This provision is further strengthened by Explanation II below this
section which says that "If any question arises whether an accused person was produced before the
Magistrate as required under paragraph (b), the production of the
accused person may be proved by his
signature on the order authorising
detention."
The main purpose of this provision is to vest an important humanitarian responsibility on the judiciary
to ensure
Taking prisoners off the
eyes of law
Lawful custody warrants anybody facing trial to be made
present before a magistrate every two weeks. Yet this is
being avoided to the extent of becoming a norm as the
very keepers of the law opt for the easy way out. This
amounts to robbing undertrials of their Constitutional
right, writes former inspector-general of police (prisons),
Rajasthan, RK Saxena
adly, a gap has been arising
between law and its practice
when one considers about
Section 167 (2) (b) of the Criminal
S
40
Procedure Code This unequivocally
mandates that "no Magistrate shall
authorise detention in any custody
under this section unless the accused
(a) that the accused person is alive
and has not escaped lawful custody
(b) that (s)he has not been subjected to unwanted torture or physical abuse during investigation,
enquiry or trial
(c) that the accused person, who is
under 'presumption of innocence', has been provided with
legally acceptable conditions of
detention in the custodial institution including legal aid
(d) that his/her case is appropriately
considered if (s)he offers to
plead guilty for seeking relief
under any law in force
(e) that in view of section 428 of the
CrPC his/her period of detention
during
investigation,
enquiry, or trial does not exceed
the highest punishment awardable in the case and
(f) that the case be considered for
non-custodial relief if it falls
within the ambit of any law or
rulings passed from time to time
by the higher judiciary.
Yet in a large number of cases
accused persons in judicial custody,
facing investigation, enquiry or trial,
are not (actually) produced before
the trial magistrate for the purposes
of extending the period of remand. In
all such cases, it is only the warrant
of the undertrial prisoner that goes to
the court from the jail and the period
of remand to judicial custody is routinely extended without giving any
chance to the accused to make any
request to the court in person. This is
not only a grave violation of a
mandatory provision of the law but a
violation of the rights of a prisoner
who bears the presumption of inno-
COMBAT LAW MARCH-APRIL 2008
ROT IN PRISON
cence and is being constantly denied
the occasion to put up any lawful
request to the trying court.
If the production warrants of
accused under-trial prisoners of a jail
are checked it shall be evidently
revealed that quite a large number of
production warrants bear the remark
that the accused is not being produced before the court because necessary police escort is not available.
This has become such a common
practice that prison officials have
now rubber seals routinely stamped
on the back of production warrant
that say Mananiya Nyayalaya,
Nivedan hai ki aaj dinank
………………… ko paryapt police bal
na milne ke karan abhiyukta ka kewal
warrant bheja ja raha hai. Kripaya aagami peshi tarikh dene ki kripa Karen. Yahi
vinaya hai.
Jailor.
Literally translated into English this
means:
Hon'ble Court
It is submitted that due to nonavailability of appropriate police
force the accused is not being produced, only the warrant is being sent.
Kindly fix next date of peshi (and
inform). This is our request.
Jailor.
Precisely this amount to violation
of three kinds: one, that the Jailor
who was bound by the production
warrant to produce the remanded
prisoner before the court on due date
has conveniently (and with impunity) failed to obey the directions of the
court; second, that the state which
enjoys the prerogative of taking away
the liberty of a person has failed to
process him through the established
criminal justice procedures on the
pretension of lack of sufficient
resources to provide appropriate
police force to escort the accused to
the court as demanded by section 167
(2) (b) of the CrPC; and three, that the
jailor who is not a party to the case
has requested the court to extend the
period of remand of the accused, and
the court routinely extends it without
realising its detrimental effect on the
life of the accused and his dependent
family.
It needs to be seen that this practice is assuming alarming proporwww.combatlaw.org
tions and undertrial prisoners keep
complaining in vain to visiting
authorities that their period of
remand is being extended for months
together without their being produced before the trying Magistrates.
This does not only amount to
unwanted incarceration; but is also a
denial of opportunity to the accused
to put up any lawful request or submission to the Magistrate either himself or through his lawyer for grant of
bail or for availing benefit of the
Probation of Offenders Act or plea
bargaining or for release from custody under any other law in force.
Section 167 of the CrPC needs to
be stringently followed even in the
matter of putting up challan against
the accused under-trial prisoner.
Justice PN Bhagwati observed in
Hussainara Khatoon & Others Vs
State of Bihar " When an undertrial
prisoner is produced before a
Magistrate and he has been detained
for 90 days or 60 days, as the case
may be, the Magistrate must, before
making an order of further remand to
judicial custody, point out to the
undertrial prisoner that he is entitled
to be released on bail. The state government must also provide at its own
cost a lawyer to the undertrial prisoner with a view to enabling him to
apply for bail in exercise of his right
under proviso (a) to sub-section (2) of
section 167 and the Magistrate must
take care to see that the right of the
undertrial prisoner to the assistance
of a lawyer provided at state cost is
secured to him and he must deal with
the application for bail in accordance
with the guidelines laid down by us
…. We hope and trust that every
Magistrate in the country and every
state government will act in accordance with this mandate of the court.
This is the constitutional obligation of
the state government and the
Magistrate, and we have no doubt
that if this is strictly carried out, there
will be considerable improvement in
the situation in regard to undertrial
prisoners and there will be proper
observance of the rule of law." (1980)
1 SCC 108.
Video-linkage in prisons
The criminal justice system enthusiastically welcomed the video-linkage
facility between courts and prisons
introduced in Andhra Pradesh in
January 2001 and in other states later.
This system was intended to overcome the problem of non-production
of under-trial prisoners regularly
before the magistrates in compliance
of Sec. 167 CrPC, due to non-availability of police escort. It was thought
that the system would reduce overcrowding in prisons, as under-trial
prisoners would be 'produced' before
the magistrates through video and
that would give the prisoners more
access to bail or to plea bargain by
admitting guilt. Prisons and Police
departments welcomed this system
as that saved them lot of routine
administrative work. But more than
five years of implementation of the
system shows that while its benefits
are marginal, its problems are substantial.
Every time the prisoner is produced electronically before the magistrate, the later is expected to take
into account the changes in the circumstances of the case and judiciously decide on granting or rejecting
bail. But the system is just used for
routinely extending the remand periods of the prisoners once in 14 days.
In most cases no legal counsel is representing the prisoners in the electronic courtroom and magistrate
receives no briefings from the prosecution.
Since prison officials are present
in the prison video-linkage rooms,
the prison grievances, especially of
long staying prisoners, are not reaching the magistrates. It seems non-production of undertrials physically in
the courts is substantially reducing
their capacity to negotiate for bails
with the judiciary and arrange for
their sureties. The system is also erasing the wide difference between the
convict and undertrial.
Simply put, the video-linkage has
replaced the substance of judicial
hearing. The system is just saving
some time and expenditure of criminal justice system. In the whole process the ends of justice are getting
defeated for the accused prisoner.
Video conferencing seems to subvert
the intent and spirit of Section 167 of
the Criminal Procedure Code.
Besides this, there has been no
decrease in the number of undertrials
at the end of five years after the introduction of video-linkage of courts
and prisons.
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41
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Lock-ups ought to
look up
Police lock-ups through which every suspect has to pass
are in a pathetic state though a lone Jaipur police station is
able to set a world-class example. Grace Pelly suggests a
way out beyond such extremes
nly last year a police station
in Jaipur shot to fame.
World's attention came its
way as it won an international
award. Transparency, community
relations and humane detention conditions led Shipra Path police station
to be adjudged the best police station
in the world. Yet conditions in the
vast majority of police lock-ups in
India, however, remain dismal.
Whilst prison reform has received a
considerable amount of attention in
the past three decades, conditions in
lock-ups at police stations and courts
O
42
have been completely overlooked.
There are no basic rules or laws on
the treatment of detainees in lockups; no uniform standards to ensure
that they receive even the most
essential provisions of food, water
and soap.
Not all criminal suspects are
lucky enough to pass their time at the
Shri Path Police Station. Most lockups are characterised by over-crowding, squalor, poor hygiene and nutrition, rape and custodial death. Lockups are intended to be short-term
places of detention for prisoners in
police stations and court premises.
This may be one of the reasons why
no reform in this respect could ever
be possible. Nonetheless, each and
every prisoner in the Indian criminal
justice system spends some time in a
police lock-up and it is unacceptable
that there is no basic national legislation on the subject.
In the absence of specific laws, the
courts have shown willingness to
order reforms and improvements to
conditions in lock-ups in response to
public interest litigation. Public
interest litigation in this respect has
encouraged the courts to order
improvements to the status of
women in lock-ups, to give criminal
suspects basic procedural rights and
to renovate police stations in order to
ensure that detainees have access to
essential facilities such as bedding
and drinking water. Since the only
standards governing lock-ups have
grown out of individual petitions to
the courts, improvements to lock-ups
have occurred on an ad hoc basis.
Experience has shown, however, that
public interest litigation alone will
not bring about meaningful improvements in conditions for the majority
of lock-up detainees.
An examination of a few cases
regarding the treatment of detainees
will show that whilst the courts have
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ROT IN PRISON
Where kicks-and-blows rain
Police lock ups - locally known as Hawalats — are products of a misplaced ethos visà-vis police, crime and punishment in India, writes Abid Shah
T
he Urdu/Hindi cognate for police lock up is hawalat.
This means kicks-and-blows. Hwalat is housed inside
a police station. And the term in local parlance for
police station is thana. It means weren't-you. Once a suspect is taken to a police station, he knows that he is going
to be asked weren't-you, or haven't you been, say in thisor-that-incident, may be robbery, dacoity, conspiracy et al.
And to escape station officer's wrath he would have to
brave all accusations whether true or not till court comes
to his rescue.
This is more so since the Indian term for station officer
is daroga. This has its origin in Persian
word darog, which means a lie, and
daroga is only its plural, meaning lies.
Such horrendous key words one
encounters in Indian policing that not
only stands right at the gateways of
criminal justice system, but also has
control quite deep inside the system.
These terms are in vogue since yore,
much before Britsh Raj. They were products of merciless medieval ways though
not that the British or those who took
over from them were any better -- if not
for any other reason then just because
they preferred, as they still do dark ages'
barbarism against locals. Here a little
caution is called for -- the Perso-Arabic
origin of some of the terms referred to are not meant to
associate barbaric practices vis-à-vis crime, police and punishment to any particular sect or faith alone. This has otherwise also been no less archaic and brutal for a long time
outside Persia and Arabia or the countries that came under
their influence. So this should not be construed to be an
issue at the moment.
What is important is that these are not just bland
terms of metaphoric value alone as they literally dictate the
ethos that persist vis-à-vis police. Heartless regimes that
have been consigned to the dustbin of history in the wake
of people's long drawn struggle and countless sacrifices
unfortunately survive like a ghost courtesy police. This was
created way back in dark ages that suited nobody else but
the rulers of yore and their cronies. The case today is no
different. And this is clearly a case of continuing with a
misplaced, biased (against poor, weak and meek) and rotten malignance.
Malignance because the recently drafted Constitution
of South Africa calls police officer as peace officer. This is
what Professor BB Pande, who until recently taught law at
Delhi University and left it after retirement, pointed out to
drive home the point that police need to be reoriented in
order to be made answerable and responsive to people's
www.combatlaw.org
needs. Imagine, the commonly used term for police in
America and most of the English speaking parts of the
world is COP, which is, in fact, an acronym for Community
Oriented Policing. It was a result of an experiment that was
opted for by a visionary American leadership in San Diego
to try out a different community friendly and citizen loving
police. This was not only successful but also soon spread
beyond the island.
The world has changed and so have police, their lock
ups and jails throughout the better informed, and more
imaginative parts of world. This change has been coming
up for no other reason but for love of
freedom and respect for human dignity
on the part of those people and their
leaders who have shaken off the baggage
of history and its sordid practices had to
give way to democracy, freedom and
human rights.
In India and other similar third world
countries police for a long time were
meant to drive fear and deter dissent.
And people who dared had to fill police
lock ups, jails and court lock ups, creating a disinterest in politics among the
comfort loving elite and middle classes
who at best could afford armchair talk
when people fought their tyrannical
rulers. This is still reflected through the
present day's educated generation's reluctance to take up
people's cause, or join public life. This not only impedes
progress, but also leaves politics at the mercy of those
among whom Lok Sabha Speaker Somnath Chatterjee at
one stage found up to 40 percent facing one criminal
charge or the other and that too cutting across treasury
and opposition benches.
Thus, the cost of misplaced policing is so colossal as to
hijack the institutions founded through a hard and long
drawn collective struggle besides wisdom of people since
much before and during British Raj. Worst is this for those
who are part of police force. They may say that all among
them are not black sheep. Quite true this has to be. Yet the
tragedy is that they have been herded into a dark arena
where they are not allowed to act even as money, power
and affluence change hands -- from honest to dishonest
ones, or when poor, indigent, needy, just, upright and
deserving are robbed of their rightful due. Does this not
reduce justice to zilch? As for reason for misplaced policing, former Indian Police Service officer KS Subramanian
once told a conference that instead of command driven
police the country needs demand driven force. The sooner
people come up with the right and just demands and
ensure that they are met, the better.
„
43
ROT IN PRISON
been extremely responsive to public
interest litigation and have delivered
bold judgments requiring state governments to improve conditions in
lock-ups, this is not enough. It must
be accompanied by long-overdue
legislation to govern all elements of
detainees' treatment in lock-ups and
the creation of a mechanism to
ensure compliance.
Protections afforded by PIL
In 1982, Sheela Barse, a journalist,
interviewed fifteen women prisoners
in Bombay central prison. Five of the
fifteen women told her of the ill-treatment, torture and assault they were
subjected to whilst in the city's police
lock-ups. Her letter to the Supreme
Court pointed out the prevalence of
custodial violence and the lack of
protection afforded to women in
lock-ups. Having brought the issue
to light, the Supreme Court laid
down certain guidelines to protect
women detainees from physical
abuse. They ordered that:
i) separate place of detention
should be provided for female
suspects;
ii) Female suspects should be
interrogated only in the presence of female police officers;
iii) On arrest, the police should
inform a relative or friend of
the arrested person;
iv) When an accused person is
brought before a Magistrate,
the Magistrate should enquire
whether the arrested person
has any complaint of torture or
mal-treatment in police custody and inform her that he has
right to be medically examined;
v) That Sessions judges, preferably female ones, should make
surprise visits to police lockups to ensure that the above
protections are being implemented.
For the Supreme Court, this was
not empty rhetoric. The court displayed its determination that the
orders would be followed: "If it is
found as a result of inspection that there
are any lapses on the part of the police
authorities, the City Sessions Judge shall
bring them to the notice of the
Commissioner of Police and if necessary
to the notice of the Home Department
44
and if even this approach fails, the City
Sessions Judge may draw the attention of
the Chief Justice of the High Court of
Maharashtra to such lapses".
The seminal judgment in DK Basu
v State of West Bengal began as a petition drawing the Supreme Court's
attention to deaths in police lock-ups
and the alleged attempts by the state
government to 'hush up' their occurrence. The Court set about develop-
The conditions in the
most lock-ups remain
deplorable despite the
courts' readiness to
outline guidelines and
requirements on the
subject
ing what it termed "custody jurisprudence" in response to the petition,
outlining a number of safeguards for
detainees in lock-ups:
1. Police personnel should wear
name badges and their identity
details should be logged before
they carry out interrogations.
2. A memo of arrest should be prepared, signed by the accused
and witnessed by a member of
the accused's family or a
respected member of his community.
3. A person who is detained in a
lock-up has the right to have
someone informed of his whereabouts.
4. The police must notify the chosen friend or family member of
the time, place of arrest and
venue of custody.
5. The arrested person must be
informed of his right to make
contact with a friend or family
member.
6. The details of the friend or family member must be logged at
the police station.
7. The arrested person may ask for
a medical examination to take
place. All findings should be
logged and signed by the parties.
8. A trained doctor should subject
the arrestee to medical examination every 48 hours during his
detention in custody by a doctor
on the panel of approved doctors.
9. Copies of all the documents
above should be sent to the
Magistrate for his record.
10. The arrested person may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
11. A police control room should be
provided at all district and state
headquarters, and information
regarding the arrest shall be
communicated by the officer
causing the arrest, within 12
hours of effecting the arrest and
it should be displayed on a conspicuous notice board in the
police control room.
The Supreme Court displayed
characteristic insistence that these
guidelines be requirements, to be
implemented by state governments
across the country and concluded
optimistically: "It is hoped that these
requirements would curb, if not totally
eliminate the use of questionable methods
during interrogation and investigation
leading to custodial commission of
crimes". Unfortunately the intentions
of the judgment are still not nearly
realised.
These cases display the limited
role that the courts can and have
played in improving conditions in
lock-ups. Their judgments are firm
and well-intentioned but the courts
alone cannot bring about any meaningful widespread reform. With no
mechanism to ensure that the guidelines are followed and no specific
legislation to back them up, the
most the courts alone can achieve
are ad hoc improvements to lock-up
conditions.
A public interest case in Bihar
drew the Patna High Court's attention to the fact that there was often no
proper accommodation in the state's
police lock-ups. The petitioner
informed the court that detainees
were often tied up outside the police
stations because there was no place
for them inside. Delivering its judgment, the High Court was scathing
about the state's attitude to detainees
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ROT IN PRISON
in lock-ups noting: "the casual
approach… does not show that any
responsible or serious thought has been
given to the problem which is too acute to
be dealt with so casually by the respondents". The court went on to point out
that their practice was in direct contradiction to the Bihar Police Manual
which required, not only that accommodation in the lock-ups be provided, but also that there should be separate lock-ups for women and men in
police custody. The Court went on to
despair: "We do not think that the
respondents are at all serious about
duties under the Constitution or under
the law. There is utter failure on their
part to comply with the provisions of the
Bihar Police Manual and to safeguard
the fundamental rights of the citizens
even though they may be prisoners and
in police custody. The respondents have
not cared to give any details especially as
to when and how they shall have proper
police lock-ups in all the police stations".
The Court took a firm line with the
state government and directed that
within two years, all the police stations in Bihar should have proper
police lock-ups separately for both
male and female prisoners.
The above cases illustrate the
courts' judicial activism in improving
conditions for detainees. What is
equally apparent in Basant Kumar
Chaudhary is the court's frustration
with the implementation stage of the
proceedings. Courts can keep pronouncing on the fundamental rights
of detainees but this will have no
meaningful impact on conditions in
other parts of the country until specific national legislation is introduced and a mechanism for enforcement is created.
In 2006 the Bombay High Court
examined a report by the Director
General of Police on conditions in
police lock-ups in Maharashtra. The
report brought to light a number of
disturbing practices in the state's
lock-ups such as the practice of stripping accused persons and detaining
them without any clothes. The report
also stated that there are often no
lights and no drinking water inside
the cells, no fans in case prisoners
attempt to commit suicide, no lavatories and no bedding in some lock-ups.
The High Court directed that the
Director General of Police issues
directives to all police stations stating
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that detainees shall not be stripped of
their clothes and one set of clothes
should be made available to lock-up
detainees at all times. The court also
ordered that drinking water be provided in the lock-up cells and that
detainees are provided with adequate
bedding facilities and that both of
these reforms be implemented within
one month. The court accepted the
respondents' explanation that having
fans or electricity in the lock-up may
lead to constant worry that the prisoners may commit suicide and did
not order the provision of electricity
and fans in the lock-ups. Finally, with
regard to the provision of lavatories
in the lock-ups, the court directed
that the Director General might consider the financial feasibility of this
when renovating the State's lock-ups.
Again, we see the courts ordering
improvements to conditions in lockups. The ad hoc nature of judicial
intervention in these matters, whilst
commendable, has limited impact for
the conditions of lock-ups elsewhere
in the country.
Conclusion
The conditions in the majority of the
nation's lock-ups remain deplorable
despite the courts' readiness to outline guidelines and requirements on
the subject. In order to achieve uniformly humane conditions two
things must be done. First, specific
legislation on all aspects of conditions in lock-ups be drawn up at a
national level. Secondly, a mechanism for enforcement should be set
up. This would take the form of 'spot
check' visits to lock-ups throughout
the country by appointed state committees. This body would monitor
lock-up conditions and have legal
remedies available to them to ensure
compliance with the new legislation.
Until then, the prospect of conditions
in lock-ups throughout the country
rivalling the Shipra Path police station remains a distant hope.
REFERENCES
1. "A 'dream' police station which attracts visitors
from far and wide" by Sunny Sebastian, The
Hindu, 14 April 2007. Available at:
http://www.hindu.com/2007/04/14/stories/2007041401001400.htm
2. For example, the Justice V R Iyer Committee
Report in 1979, report of the All India
Committee on Jail Reforms in 1983, the
Malimath Committee on Reforms of the
Criminal Justice System and the introduction
of the Model Prison Manual 2003.
The individual states' Police Manuals do provide
general 3. guidance on lock-ups but not specific
standards for the treatment of detainees.
4. See Basic Principles for the Treatment of
Prisoners, adopted and proclaimed by United
Nations General Assembly resolution 45/111
of 14 December 1990 and Standard Minimum
Rules for the Treatment of Prisoners, adopted
by the First United Nations Congress on the
Prevention of Crime and the Treatment of
Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council
by its resolution 663 C (XXIV) of 31 July 1957
and 2076 (LXII) of 13 May 1977.
5. See Sheela Barse v State of Maharashtra
(Supreme Court) (1983), D K Basu v State of
West Bengal (Supreme Court) (1996) and
Rahul S Thakur v Commissioner of Police and
Others (Bombay High Court) (2006).
6. The implementation of the DK Basu guidelines, for example, has been patchy at best.
7. Sheela Barse v State of Maharashtra (Supreme
Court) (1983).
8. Sheela Barse v State of Maharashtra (Supreme
Court) (1983).
9. Sheela Barse v State of Maharashtra (Supreme
Court) (1983) at paragraph 5 (v).
10. D K Basu v State of West Bengal (Supreme
Court) (1996) at paragraph 40.
11. In their annual findings, the NHRC reported
136 deaths in lock-ups in the year 2004-2005.
NHRC Annual Report 2004-2005. Available at:
http://www.nhrc.nic.in/Documents/AR/AR0405ENG.pdf. In Delhi in 2006 almost 20 per
cent of rape cases were reported from just 14
police stations: "Bid to sensitise police to violence against women", The Hindu, 30 April
2006. Available at:
www.hindu.com/2006/04/30/stories/2006043003120700.htm
12. Basant Kumar Chaudhary v State of Bihar
and Others (Patna High Court) (1997) at paragraph 4.
13. Basant Kumar Chaudhary v State of Bihar
and Others (Patna High Court) (1997) at paragraph 6.
14. Basant Kumar Chaudhary v State of Bihar
and Others (Patna High Court) (1997) at paragraph 9. In the same case, the petitioner
sought provision of proper diet money for the
prisoners in police custody. The Court noted
that the year before, in 1996, the state spent
Rs.1 per day on each detainee in the lock-up
which would cover two meals per day. The
Court stated that since the state government
had recently increased the expenditure to Rs.6
per day per prisoner they would not examine
the issue any further. The paltry sum spent on
nutrition is further illustrative of the poor conditions endured by detainees in lock-ups.
15. Rahul S. Thakur v Commissioner of Police
and Others (Bombay High Court) (2006).
16. Rahul S. Thakur v Commissioner of Police
and Others (Bombay High Court) (2006) at
paragraph 6.
17. Rahul S. Thakur v Commissioner of Police
and Others (Bombay High Court) (2006) at
paragraphs 7 and 8.
18. Rahul S. Thakur v Commissioner of Police
and Others (Bombay High Court) (2006) at
paragraph 9.
19. Rahul S. Thakur v Commissioner of Police
and Others (Bombay High Court) (2006) at
paragraph 10.
—The writer is a law graduate from
United Kingdom and works with India
Centre for Human Rights and Law
(ICHRL), Mumbai
45
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Jails that fail justice
Shabby, overcrowded, heartless and subhuman, prisons in India defeat the very purpose
set for them under the law. No more a reformatory for those who err, they have fast
become dens of death, disease, crime and corruption. Expectedly, the majority of those
who suffer this inhuman ordeal are the poor and the disadvantaged, writes
Vijay Hiremath from Mumbai
he Mumbai Central Prison, better known as Arthur
Road Jail, perched in the heart of the city is meant
for 800 inmates. Yet even in good times it houses no
less than 3,500 prisoners. This alone points to the kinds of
problems the people inside may face. Overcrowding is
what dogs most prisons throughout the country. And put
together overcrowding went up to a staggering 48 percent on a countrywide basis in 2005.
Numerous committees were set up prior to as well as
after independence to reform the conditions that afflict
prisons in India, but nothing much has changed. Prisons
in India continue to be overcrowded, with very little or no
facility for medical care and little availability of clean edible food, forcing
prisoners to live in
dangerously unhygienic and often subhuman conditions.
The first Prison
Enquiry Committee
was appointed in
1836. It recommended the abolition of
prisoners being put
to work on roads.
The second Jail
Enquiry Committee
of 1862 emphasised
the need for proper
food, clothing and
medical treatment
for
prisoners.
Subsequently, more jail enquiry committees were constituted to look into the conditions of prisons in 1877, 1889
and 1892.
The Prison Act, 1894 was brought in to introduce uniformity into prison administration across the country. Sir
Alexender Cardew headed the jail reform committee of
1919-1920. The Committee stressed need for a reformative approach towards prisoners instead of using punitive ways alone.
In 1949, the Pakwasa Committee recommended the
system of utilising prisoners as labourers for road work
without any intensive supervision on them. The payment
of wages for prisoners against work done by them was
also introduced in 1949. Since jails were placed with the
police as a state subject, the central government did not
T
46
pay any attention to the conditions of prisons spread all
over the country. There was little or at times no allocation
of any funds for prisons in the various five-year plans.
Dr WC Rackless, a technical expert of the United
Nations on Crime Prevention and Treatment of
Offenders, was invited by the Indian government in1951
to make recommendations on prison reforms. A committee was appointed on the recommendation of Dr Rackless
to formulate the Jail Manual. In spite of all these efforts
the condition of prisons never improved. If anything it
continued to deteriorate.
In 1980 the All India Jail Reforms Committee was
appointed under the Chairmanship of Justice AN Mulla.
One of the most important
recommendations of the
committee was to set up a
National Prison Commission
as continuing body to bring
in modernisation of prisons.
There were many recommendations given by the Mulla
Committee for the reforms in
the prison system especially
regarding the visitors system. Yet after almost three
decades since the committee
was set up, there is very little
that has changed vis-à-vis
prison conditions in India.
A
committee
was
appointed in 1988 under the
chairmanship of Justice VR
Krishna Iyer to look into the issues of women prisoners.
Sadly, the reports of all these committees are gathering
dust while the prisoners continue to remain lowest on
society's list of priorities.
It is strange that a prisoner can contest election and
represent the people of his constituency while being in
prison but he is not able to vote in elections. Why cannot
an undertrial prisoner have a right to vote? An undertrial
who has been released on bail can vote in elections but
not an undertrial prisoner. This is blatantly discriminatory and also shows that society and government are not
bothered about even the basic right of an individual in an
otherwise democratic country.
The conjugal rights of prisoners are not recognised in
India. Various judgments of the apex court and the high
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ROT IN PRISON
courts of different states have stated
time and again that prison life does
not mean life without dignity. Yet
there is no dignity in prison life in
India.
The solutions to the problem in
the prison do not lie in opening bigger prisons but in changing the mindset of the administrators that the people living behind bars are also human
beings. In "Rama Murthy v. State of
Karnataka" the apex court has held
that,
“Overcrowding may also be taken
care of by taking recourse to alternatives to incarceration -- these being
(1) fine, (2) civil commitment; and (3)
probation. There is enlightened discussion on these judicial choices in
Chapter IV of "Justice, Punishment,
Treatment" by Leonard Orland. In
that chapter (1983 edition) the learned
author has referred to many cases on
this subject and has pointed out the
difference between "civil" and "penal"
institutions from the perspective of
the inmate. As to release on probation, it may be stated that it really
results in suspension of sentence, as
the person released on probation is
required to execute bond under the
provisions of the Probation of
Offenders Act, 1958, requiring maintenance of good conduct during the
probationary period, the failure to do
which finds the concerned person in
prison again. That Act has provision
of varying conditions of probation
and has also set down the procedure
to be followed in case of the offenders
failing to observe conditions.
“Overcrowding is reduced by
release on parole as well, which is a
conditional release of an individual
from prison after he has served part
of the sentence imposed upon him.
Various aspects of parole have been
dealt in Chapter 11 of Professor
Orland's aforesaid book. In Suresh
Chandra (AIR 1976 SC 2462) and
Krishan Lal (AIR 1976 SC 1139),
(supra) liberal use of parole was recommended by this Court.
“Reference may also be made in
this connection to Chapter 20 of the
Report of All India Committee on Jail
Reforms (headed by Justice A. N.
Mulla) (1980-83) Vol. I. That chapter
deals with the system of remission,
leave and premature release. The
Committee has mentioned about various types of remission and has made
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some recommendations to streamline
the remission system. As to premature release, with the effect of parole,
the Committee has stated that this is
an accepted mode of incentive to a
prisoner as it saves him from the extra
period of incarceration; it also helps
in reformation and rehabilitation."
There are very few cases in which
the accused are released on parole
after conviction as per the Probation
of the Offender's Act. Premature
release has become highly politicised
and this privilege is given mainly to
persons close to politicians or their
relatives.
One of the important changes
required for decreasing the prison
population is speedy trial as a majority of the people are undertrials.
Secondly, there also needs to be a
process of rehabilitation of the prisoners so that they do not go back to
the world of crime. Today there is
very little being done on rehabilitation and whatever is being done is
It is strange that a
prisoner can contest
election and represent
the people of his
constituency while
being in prison but he
is not able to vote in
elections
being carried out by non-government
organisations. There is greater need
to look at the issue of the health of
prisoners closely. The statistics of the
National Crime Records Bureau
show that there were 1,357 judicial
custody deaths which were reported
across India in the year 2005. The
huge number of custodial deaths in
jails across the country not only
shows that there is violence but also
that the health conditions are
abysmal. In many prisons one of the
major health complaints from prisoners is that of skin diseases. There is
very often a complaint by prisoners
that no matter what ailment they are
facing, they are just given two-three
types of tablets. There is a need for
round the clock medical assistance
through the constant presence of a
duty doctor in jails to ensure medication for the inmates. Many lives can
well be saved by offering the right
treatment on time.
People suffering from HIV/AIDS
face a huge problem as they do not
get proper diet and medicines in
prison and many a times death is fastened on to them. One of the major
reasons for the neglect of prison conditions is that the people inside are
mainly poor, illiterate, and from disadvantaged sections like Dalits and
minorities for whom there is little
concern in the society. This is more so
when they do not have family, or
friends around. Generally they are
looked at by affluent, well to do and
even by ruling or influential sections
as people who have committed
wrong and hence need not be bothered about.
There is a misconception among
many people that the facilities in
prisons are like five-star hotels and
hence many prisoners would prefer
to remain in the prison as they get
food and shelter. In my six-year-long
work with prisoners in Maharashtra,
mostly poor prisoners, I have not
come across a single prisoner who
has stated that he would like to continue to stay in the prison. Whatever
the condition, nobody would like to
give away his liberty.
In Md.
Giasuddin V. State of Andhra Pradesh
Justice Krishna Iyer held that, “If
every saint has a past, every sinner
has a future, and it is the role of law
to remind both of this. The Indian
legal genius of old has made a
healthy contribution to the word
treasury of criminology. The drawback of our criminal process is that
often they are built on the bricks of
impressionist opinions and dated
values, ignoring empirical studies
and deeper researches."
Though prisons have to be places
of deterrence as well as reformation,
they also have to be more humane
and just, lest we fool ourselves that
by keeping people in prison they are
being reformed.
REFERENCES
1. ncrb.nic.in
2. AIR 1997 SUPREME COURT 1739
3. AIR 1977 SUPREME COURT 1926
47
RIGHT TO DEFENCE
Arm poor with legal aid
Supreme Court as well as High Courts have often been appalled by lack of legal
assistance for poor, indigent and other deserving sections of accused and ruled in favour
of such aid to be provided by the State. Yet lack of an institutional mechanism to ensure
this continues to afflict the justice delivery system, writes Rebecca Gonsalvez
egal aid is really nothing
else but equal justice in
action".
Legal aid is vital to a properly
functioning criminal justice system. Its
purpose is to protect the very poorest
members of society by ensuring equality of arms for the accused against
State-funded prosecution. Without
legal aid for the neediest defendants
the entire criminal justice system
would be undermined, offering justice
only to the rich, excluding the poor
from the protection of the law.
"L
Constitution and legal aid
The Constitution of India enshrines a
democratic vision of justice in which
the State will take positive steps to
48
ensure that all individuals have equal
access to the system — "It is the duty
of the State to see that the legal system
promotes justice on the basis of equal
opportunity for all its citizens. It must
therefore arrange to provide free legal aid
to those who cannot access justice due to
economic and other disabilities". The
right to legal aid is also set out in the
Criminal Procedure Code 1973 which
explicitly covers the situation of
poverty stricken defendants: if an
accused does not have sufficient
means to engage a lawyer, the court
must provide one for the defence of
the accused, at the State's expense.
The courts have entrenched the
rights of the accused to legal aid by
reading Article 39A into Article 21
and have rejected arguments by state
governments that financial and budgetary constraints are legitimate reasons not to provide legal aid to its
poorest citizens. Despite the commitment shown by the courts to this
principle, in order to achieve true
equality of arms in the Indian justice
system further practical reforms
should be made. This article will
explore the strengthening of the right
to legal aid provision through the
case law before examining some
practical reforms to ensure a strong
criminal defence system.
The Supreme Court decision in
Maneka Gandhi v. Union of India stated
that when Article 21 provides that no
person shall be deprived of his life or
COMBAT LAW MARCH-APRIL 2008
RIGHT TO DEFENCE
Legal aid may be granted
„ For special cases considered
'deserving' of state funding;
„ For cases of great public importance
liberty except in accordance with the
procedure established by law, it is not
enough that there should be some
semblance of procedure provided by
law, but that the procedure under
which a person may be deprived of
his life or liberty should be 'reasonable, fair and just'. These central concepts of reasonableness, fairness and
justice equipped the Supreme Court
in Madhav Hayawadanrao Hoskot to
state that Article 39A is an interpretative tool for Article 21 and that if a
prisoner is unable to access his right
of appeal for want of legal assistance:
"there is implicit… power (in the
Constitution) to assign counsel for such
imprisoned individual for doing complete
justice". The Supreme Court's commitment to equality of arms for criminal defendants is clear: "This is a necessary incident of the right of appeal...
(and) the inference is inevitable that this
is a State's duty and not government's
charity". As we will see, legal aid provision being a State's duty rather than
charity is a recurrent theme in the
case law.
Having emphasised that legal
assistance for a defendant is a necessity and not a luxury and that the State
is responsible for providing it, the
court stated the seemingly unobtrusive fact that: "while legal services must
be free to the beneficiary, the lawyer himself has to be reasonably remunerated for
his services". This may at first seem
obvious and unimportant. In fact, the
funding of lawyers carrying out legal
aid work is crucial to ensuring true
equality of arms, and therefore a
strong criminal justice system. We
will examine this in more detail later.
The Supreme Court reiterated its
finding that the State is under a constitutional mandate to provide a
lawyer to an eligible accused person
under Articles 21 and 39A in
Hussainara Khatoon and Others v Home
Secretary, State of Bihar. The case
examined the situation of undertrial
prisoners charged with bailable
offences but they either remain in jail
because no bail application has been
made on their behalf or because they
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are too poor to furnish bail. The
Court again emphasised that the
right to free legal services is an essential ingredient of reasonable, fair and
just procedure for an accused. The
Court directed that when an undertrial prisoner is produced before a
magistrate and he has been in detention for 90 days or 60 days, the magistrate must, before making an order
of further remand to judicial custody;
point out to the undertrial prisoner
that he is entitled to be released on
bail. Here we see the Supreme Court
enunciating that the responsibility
and duty of the legal assistance lies
with the authorities, be they governmental or judicial, to furnish the pris-
The State is under a
constitutional
mandate to provide
free legal aid to the
accused, who is
entitled to secure
legal services on
account of indigence
and whatever is
necessary for this
purpose has...
oners with their constitutional right
to representation.
In Khatri and Others v State of Bihar
and Others the Supreme Court dealt
with a situation in which prisoners
appearing before the judicial magistrate had not been afforded legal aid.
The judicial magistrate had not asked
the prisoners if they wanted legal aid
representation and nor had the prisoners requested it. The court
expressed regret that despite their
previous orders that an accused person is entitled to legal assistance as a
constitutional right, most of the state
governments had failed to comply.
The respondents argued that the
State might find it difficult to provide
legal aid to prisoners due to financial
constraints. The Supreme Court
Legal aid is not available for
„ Cases where the fine imposed is
no more than Rs 50;
„ Economic offences;
„ Defamation;
„ Contempt of court and perjury;
„ Malicious prosecution;
„ Cases
involving
electoral
disputes;
„ Individuals who are not directly
concerned with the proceedings
rejected this argument, pointing out
that a state cannot avoid its constitutional obligations by pleading poverty. The court also held that this right
applied to the first appearance before
a magistrate and was not limited to
the trial stages. "It is elementary that
the jeopardy to his personal liberty arises
as soon as a person is arrested and produced before a magistrate, for it is at that
stage that he gets the first opportunity to
apply for bail and obtain his release as
also to resist remand to police or jail custody. That is the stage at which an
accused person needs competent legal
advice and representation and no procedure can be said to be reasonable, fair and
just which denies legal advice and representation to him at this stage".
The court stated that the right to
free legal representation would be
illusory unless the prisoner was
informed of that right. The court
directed that magistrates and session
judges should inform every accused
who appears before them and who is
not represented by a lawyer on
account of his poverty or indigence
that he is entitled to free legal services at the cost of the State. The State
is under a constitutional mandate to
provide free legal aid to the accused,
who is entitled to secure legal services on account of indigence and
whatever is necessary for this purpose has to be done by the State.
Effects of lack of legal aid
Cementing the right of the poor to
legal representation funded by the
State, the courts have taken a strong
stance in cases where the right has
been violated. The duty of the courts
to inquire whether a defendant
would like legal aid is a continuous
one. In the majority of cases where
the defendant was not afforded legal
representation at trial or on appeal
the courts order a re-trial. There have
49
RIGHT TO DEFENCE
also been instances where the courts
have set aside convictions on the
grounds that Article 21 has been violated. These cases are, however, distinguishable on the basis that they
involve minor offences. One such
case is Suk Das v Union Territory of
Arunachal Pradesh where the accused
were charged with a minor warrant
offence. They were not represented
by a lawyer since they were unable to
afford the fees. As a result, the
accused represented themselves at
trial and cross-examined the witnesses without legal assistance. The
Supreme Court emphasised that the
magistrate or sessions judge is under
an obligation to inform the accused
that if he is unable to employ a
lawyer he is entitled to legal aid paid
for by the State. If the accused is not
informed of his right to legal aid by
the magistrate or sessions judge this
is a violation of Article21 of the
Constitution and the trial must be
held to be vitiated on account of a
fatal constitutional infirmity. The
conviction and sentence recorded
against the appellant were set aside.
In Hiraman Sakharam Borkar v State
of Maharashtra the accused was convicted of raping his 12-year-old
granddaughter. He appealed to the
High Court that he had although
been granted legal aid at the beginning of the trial, his lawyer had withdrawn in the early stages and he was
unrepresented during the whole
trial. The accused argued that Suk
Das should be followed; that his conviction should be set aside and no retrial ordered. The court rejected this
argument and distinguished Suk Das
on the ground that the offence in that
case was a minor one whilst the
50
Who is entitled to legal aid?
A person who is:
„ facing a charge which might
result in imprisonment;
„ a member of a Scheduled Caste
or Scheduled Tribe;
„ a victim of trafficking in human
beings or beggar as referred to in
article 23 of the Constitution;
„ a woman or a child;
„ a mentally ill or otherwise disabled person;
„ a person under circumstances of
undeserved want such as being a
victim of a mass disaster, ethnic
violence, caste atrocity, flood,
drought, earthquake or industrial
disaster;
„ an industrial workman;
„ in custody, including protective
custody;
„ in receipt of an annual income
less than Rs. 50,000 for cases in
the
Supreme
Court
and
Rs. 25,000 in other courts.
offence involved in the present case
was a grave crime. The court trod a
fine line between ensuring that the
defendant should not escape his conviction whilst also acknowledging
the serious error of the sessions judge
in allowing the accused to go unrepresented. The accused had already
served eight years, eight months and
eight days in prison of his 10 year
sentence. The court took the view
that since he had just over a year left
of his sentence, combined with the
grave mistake made by the sessions
court, that he should be released
from prison early.
It is clear that the courts are con-
cerned to ensure that justice is done,
whilst at the same time safeguarding
the rights of the accused to legal aid.
The same is evident in Roshan @
Loshan @ Narayan s/o Tulshiram Gedum
v State of Maharashtra. The appellant
had been tried for murder in the
Sessions Court. On one day of his
hearing the appellant had been in
custody and his lawyer had failed to
turn up to court. The prosecution
witnesses present on that day were
therefore not cross-examined. The
Sessions Judge did not provide any
legal assistance to the accused on this
occasion even though he was aware
that no defence was present. As a
result of this the appellant submitted
that he had suffered grave injustice
and that he had not received a fair
trial and the trial should be held vitiated for lack of legal assistance. The
court stated that denial of the opportunity to cross examine the prosecution witnesses had "no doubt resulted
in a miscarriage of justice". The court
held that the case be remitted to the
trial court to recall only the witnesses
who gave testimony on the day that
the accused and his lawyer were
absent, in order that they be crossexamined with the assistance of a
lawyer. The intentions of the court to
find a balance between protecting the
defendant's right to legal assistance
and ensuring that justice is done
were clear: "The trial court should also
see that the no unfair advantage is gained
by the accused in protracting the matter
on the pretext of absence of his advocate".
Money matters
From the case law on the provision
of legal aid and the possible outcomes of a failure to do so, it is clear
that the High Courts and Supreme
Court are committed to upholding
the constitutional right of poor
defendants to legal assistance.
Despite this, the system of legal aid
needs practical reform to ensure that
defendants really do achieve equality of arms in the courtroom.
Advocates taking on legally aided
cases are paid very badly. The current fee structure for legal aid cases
dates back to 1997. Advocates are
paid Rs. 50 per hearing in the magistrates court and Rs. 150 per hearing
in the sessions court. If we are to
recognise, as the courts have, that
legal aid is a fundamental corner-
COMBAT LAW MARCH-APRIL 2008
RIGHT TO DEFENCE
stone of a fair criminal justice system, the fees paid to advocates taking on legal aid cases must be
increased from these measly sums to
encourage experienced lawyers to
represent the poorest defendants.
Legal aid really can mean the difference between life and death. For
the poorest defendants to have truly
equal standing before the law, incentives must be given to encourage
experienced and capable lawyers to
represent the most needy. The
Madhya Pradesh High Court recognised this predicament in Sagri v
State of Madhya Pradesh. The appellant was appointed a legal aid lawyer
to represent him but the advocate
failed to turn up to court. The court
noted that the lawyer would be paid
just Rs. 50 for representing the appellant and that, "because of this paltry
sum, no lawyer is interested in working
for such unfortunate appellants".
The Court went on to set out
detailed guidelines for the remuneration of lawyers conducting legally
aided appeals, stating that Rs 250 per
appeal per day should be the proper
sum for such work plus a further Rs
100 if the hearing continues into the
following day. For capital cases the
sums should be Rs 400 and Rs 150.
The court ordered that the state government make the necessary funds
available for the High Court to
implement these practices.
In addition to raising the fees that
advocates are paid for their legal aid
work, advocates should also be able
to recoup a reasonable amount of
expenditure for photocopying, printing, phone calls and internet access
and other associated expenses
incurred. Furthermore, the system of
payment to advocates who have
undertaken legally aided work must
be reformed. There is often delay in
paying the lawyers for their work.
This further dissuades advocates
from taking on legal aid cases. It is
proposed that the system should be
reformed to ensure that payments
are made within one calendar month
of the case closing.
The Court in Sagri v State of
Madhya Pradesh also emphasised the
important fact that to ensure that
poor defendants get the best legal
assistance possible the lawyer
assigned must be knowledgeable and
experienced. The court directed that
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the court registrar appoint advocates
of at least five years practice at the Bar
to represent appellants in prison. In
There should be a
system of
accountability in the
legal aid system to
ensure that advocates
who volunteer to take
on legal aid work do
actually carry out the
work they have been
assigned. One
possible way of doing
this would be to ask
all advocates to make
an undertaking to
represent their clients
to the best of their
ability
cases of capital punishment the court
ordered that the lawyer should have
at least 10 years of experience and
more than one lawyer may be
appointed if necessary.
There should be a system of
accountability in the legal aid system
to ensure that advocates who volunteer to take on legal aid work do
actually carry out the work they
have been assigned. One possible
way of doing this would be to ask all
advocates to make an undertaking to
represent their clients to the best of
their ability. If they fail or neglect to
carry out their duties there should be
recourse to a disciplinary committee.
Another practical way to improve
the provision of legal aid would be
to set up a system of annual review
whereby the legal aid committee
would assess the performance of
advocates who have undertaken
legal aid work.
Conclusion
To match the courts' recognition, in
theory, of the importance of real and
effective legal aid these practical
solutions should be implemented.
Only then will the poorest defendants have truly equal standing
before the law.
—The writer is a lawyer with India
Centre for Human rights and Law,
Mumbai
51
WOMEN & PRISONS
Of all sorts of prisoners —
whether undertrial or
convicts — women become
the worst sufferers once
they land up in prison. Not
just this, children below six
are often separated from
their mothers in clear
violation of law, writes
Sheela Ramanathan on
the basis of findings of
teams that visited prisons
in Orissa, Karnataka and
Jharkhand. The writer too
was on the teams
mong all sorts of prisoners
and undertrials, women are
the worst sufferers. They figure at the lowest rung of jail staff and
administration's priorities. Women in
our society are otherwise also in a
vulnerable and disadvantageous
position because of their social status,
economic condition, illiteracy, etc.,
and, thus, once they land up in
prison they are completely abandoned. Many times women are
imprisoned inside families and
trapped at home. Yet they still miss
the family and children the most,
when they are inside the State prisons. Women do not know that they
can keep their children with them till
they are six-year-old. The children of
women prisoners suffer the most for
no fault of their own. Women are
incarcerated, as undertrials for longer
period than if they are found guilty.
State legal aid is a complete failure.
A
Malkangiri prison, Orissa
Worst jail jitters
trap women
52
The team was shocked to see the
extreme conditions in which the
female inmates were confined. A tiny
space of 8x10 feet, whose capacity is
only for four persons, was housing 21
women. They were locked in, not
only all night but also some part of
the day since there was no regular
female warden appointed. The only
latrine and bathing place has neither
a door nor a roof, and the women
COMBAT LAW MARCH-APRIL 2008
WOMEN & PRISONS
were exposed to the stares of the sentries who pace on the high walls of
the jail. The lack of hygienic conditions, particularly the non-supply
even of sanitary napkins and adequate bathing and washing soap, has
led to severe pelvic region infections
in the case of at least three inmates.
Eight of the undertrial females,
all of them under 25 years of age,
were languishing in the jail for the
past two years, having been arrested
while returning from giving a cultural programme at a public meeting in
Bhubaneswar, which had been
granted permission by the district
authorities. Only musical instruments have been seized from them
but they have been implicated in
"Naxalite cases". One of the girls,
Sariami Dora, was obviously a minor
even after two years of jail but had
been put down as 21 years of age at
the time of arrest possibly to avoid
the applicability of the Juvenile
Justice Act. The case of two other
women was also tragic in that they
had obtained bail two months earlier
but were forced to continue only
because their families were too poor
and too far away to produce sureties.
Only a day earlier an elderly tribal
lady had been shifted to the district
hospital with acute dysentery and it
was found that she also had malaria.
When she was passing motions all
night continuously in the small
space, the women had been shouting
and banging on their locked gates for
help but could not even be heard
because of the separate double
locked enclosure.
Our discussion with the superintendent and other staff revealed that
many bureaucratic hitches and lack
of funds under the required heads
seriously hamper any possibility of
improving the prison conditions. In
the Malkangiri sub jail, there is no
doctor, but only a pharmacist for the
past few years. The limit of expenditure on medical treatment is a ridiculously low amount of Rs 100 per day
whereas there are more than 200
inmates. The procedure for sanction
for emergency treatment is also very
cumbersome.
The trials of some of the tribal
persons were delayed for more than
two years only because of the unavailability of interpreters knowing the
Koya language, and many times the
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Punishing surrogates
Despite mistaken identity two brothers languish in jail
The most shocking case was that of convicts Chitinga Majhi and Manija
Majhi - poor tribals of Village Mandrabaju under police station Adwa. They
have been identified wrongly as Batila Majhi and Sanija Majhi respectively and
have been awarded life sentences in spite of their repeated insistence that they
were being identified wrongly. The team subsequently confirmed this at their
village while meeting their wives, both having very small children. They have
been convicted in a case involving a clash between tribal villagers and the
police arising out of a land dispute at Majhiguda. The visibly poor villagers
reported that the OSAF (a para-military armed force of the state) people come
every now and then to interrogate them and raid their houses, and also misbehave with women. They related an incident at the Orissa State Armed Forces
camp, Majhiguda, in December 1999, when once the adivasi villagers had gone
to protest against the raiding of their chicken and cattle, they were asked to
come to the camp the next day to be compensated, and when they went they
were indiscriminately beaten up and arrested. — SR
witnesses, had to be turned back
from the court despite the orders of
the High Court to provide interpreter
immediately.
Sambhalpur prison, Orissa
We visited both the Nary Bandi
Niketan as well as the Circle Jail at
Sambhalpur. We were surprised to
know that the Nari Bandi Niketan
despite having relatively more facilities and staff is underutilised since it
houses only 10 undertrials and 11
convicts as opposed to its capacity of
55 persons. The reason for this is that
Women in our society
are otherwise also in
a vulnerable and
disadvantageous
position because of
their social status,
economic condition,
illiteracy, etc., and,
thus, once they land
up in prison they are
completely
abandoned
convicted women prisoners do not
wish to avail the option of transfer to
this jail because they naturally wish
to be at a place where their families
can visit them easily. It should be
mentioned here that the families of
the prisoners in all the jails we visited
reported that they have to pay Rs 10
to 50 to have an interview with the
inmates. This is in addition to the fact
that these very poor and mostly tribal persons have to spend at least a
day' time and Rs 200 to 300 per person in traveling from their village to
the jail. Most of the women convicts
had killed their "Swami", their husbands.
One young girl undertrial was
evidently a psychiatric patient under
treatment and has been more or less
abandoned by her family. One visibly
pregnant young woman and her sister and mother have been implicated
in the murder of her husband. These
women have been forced to leave
behind infant children of two years
and four years of age even though
women are allowed to keep children
below six years with them. The team
was informed that sanitary napkins
were being supplied to women
inmates in the Nari Bandi Niketan but
the number—three per woman per
month—was very inadequate. The
lady superintendent also told us that
she has suggested that the training
facilities for convict women could
also be shifted to Bhubaneswar,
which is a better connected place.
The Circle Jail houses 582 persons including 55 psychiatric patients
53
WOMEN & PRISONS
as opposed to its capacity of 351 persons. One serious problem that these
prisoners face is that in the name of
security they have been brought very
far away from their native village as
also the court of trial. This makes
them cut off from their families,
advocates and also delays their trial.
Even during our visit to the jail, more
psychiatric patients were being
brought in from distant jails. The
team also learned that only limited
escort was available when prisoners
had to be admitted for medical treatment, this also hampered prompt
medical attention.
Behrampur prison, Orissa
The team was not permitted to visit
the jail premises at Behrampur, findings are based on extensive interviews of some of the inmates in the
visitors enclosure.
The team met Surita Majhi and
Bormoi Majhi — both minor Kui
tribal girls who were arrested along
with four other Kui Sanskrit Sangha
members on September 23, 2006 on
the charge that they were showing
the films "Kranti" and "Lal Salaam"
in village Gilakuta. The girls, who
are made out to be so "dangerous",
turned out to be hardly 14 or 15 years
old, in fact Bormoi is even handicapped. The team found a large
number of instances where innocent
tribal people have been picked up
and branded as "Naxalites", thus
being victim of serious prejudice on
the part of state. Also there is a practice to suppress even democratic dissent under the guise of "Naxalite"
cases. Such practices should be
stopped immediately and wherever
there is a complaint against such
practices, an inquiry should be conducted into the same.
Karnataka
We found that in some cases even
breast-fed child was separated from
her mother, while she was arrested
and taken away by the police. Some
of the women prisoners have left
behind school going children whose
whereabouts and welfare they are
unaware of nor can they have any
means of obtaining information.
If a man is arrested whether he is
a breadwinner of the family or not,
his immediate family and friends do
invariably visit him in the prison till
54
Breach between jail
and court
Years pass by yet prisoners are
not allowed to see the face of magistrate because of the lack of police
force to accompany undertrials to
court.
While the team was present at
the Behrampur jail gate it witnessed
three vans of undertrials being taken
to attend their court cases. But in
the interviews we were shocked to
find that all those persons booked
under so-called "Naxalite" cases had
not been produced in the court even
once in the two to three years of
incarceration they had already suffered, each time on pretext of "lack
of escort". Needless to say that once
booked in such a case, bail is almost
inevitably refused without taking
into consideration the particular
facts of the case. One Kapila Majhi
who has been taken into custody in
2004, ostensibly in connection with
a violent incident at R. Udaygiri,
revealed that he has never been produced before a magistrate. He vociferously insisted that he had been
falsely implicated but never had any
opportunity to establish his innocence. —SR
he obtains bail. However in the case
of women, even if they are the breadwinners of the family, the family
abandons them soon after their
arrest. Needless to say this will have
negative repercussions on the society
at large. The prisons for example, the
one in Bangalore called Parappana
Agrahara Prison is at the outskirts of
the city making it impossible for poor
relatives of women prisoners and
undertrial to visit them. These
women are languishing in prison
without any hope of coming back to
the mainstream.
In many cases where the young
women are arrested under the
Immoral Trafficking (Prevention)
Act (ITPA), the family does not even
know about the arrest. These
women have migrated from rural
areas of different states such as
Maharashtra, West Bengal, Andhra
Pradesh, Punjab, Rajasthan, etc,
including Karnataka for earning a
living or due to being duped by
their boyfriend, or relatives or due
to trafficking. They have no educational background. The women who
are arrested under the ITP Act are
required to produce huge sums in
surety, which they can never earn in
their lifetime unless they sell their
body and soul to the person who
provides it. There is a nexus
between the police and the lawyers
and those providing surety. The
women are shorn of all their jewelry,
cell phone, whatever money they
have in their possession. Thus they
are at the mercy of the traffickers.
The ITPA does not seek to punish
prostitution at all. It seeks to punish
the trafficking of women for the purposes of prostitution under sections
3,4, and 5 which primarily apply to
traffickers and hence the arresting
and keeping of these women in
prison is unjustified and against the
objects of the ITP Act. Some of the
young women are arrested under
section 294 of the Indian Penal Code.
These women even if convicted may
not serve so many days of imprisonment as they do, as undertrials.
The reason why a person arrested
is kept in custody before she is convicted is obviously to produce her in
court during trial. However the
excuse given by the prosecution for
the non-production of undertrials on
the dates of their cases in respective
COMBAT LAW MARCH-APRIL 2008
WOMEN & PRISONS
Is political dissent criminal?
Naxalites are openly being branded as criminals and are being tried as such. Will other activists be
safe for this is setting a precedent of sorts for political prisoners. Moreover, can dissent survive at
this rate
The jail authorities in Jharkhand have extremely problematic notions about political prisoners. This concept officially does not exist in the Jharkhand jail parlance. The
Maoists/Naxalite activists for example are all booked under
'17 Criminal Law Act' and are not seen as 'political activists'.
We apprehend that this soon might be used against any
other activists seen with other political affiliations too, who
seek to rebel against or criticise the existing exploitations
executed by the state, the society or the powers-that-be.
This exposes the blindfolded functioning of the repressive state machinery and its complete indignation towards
rightful political activities. As per the superintendent of the
Chaibasa Jail, the Maoists are no political party as they function on their own ideology! This shows her ignorance
towards the concepts of both politics and ideology!
However, we felt in that case the Maoists should be treated
as any other 'criminal', but the jailor of the Chaibasa jail
courts is that there are no sufficient
police forces to escort them from the
prison to the court of relevant jurisdictions. This is true not only in
respect of undertrials lodged in
Parappana
Agrahara
Prison,
Bangalore, but also in respect of all
rural and district central prisons such
as Belguam, Bellary, etc. That due to
non-availability of separate prisons
for women in some districts, women
are shifted and placed in far away
prisons, which are in rural and distant districts, even those whose trials
have not begun, so that it becomes
impossible for the families to visit
them. This is so especially in cases of
women undertrials and prisoners
from Davangere, Koppal Hospet,
Papanayakanahalli, etc. Since these
people are from economically poorer
sections, their respective families will
not be able to meet the expenses of
transport to visit them.
Thus the mental and physical
healths of these women are greatly
affected because of the constant
worry about the welfare of the family
and complete isolation from their
families. Here we are speaking about
undertrials including those who may
not even have committed any crime.
The undertrials are unable to meet
family at the court premises or ask
for legal aid, contact lawyers, make
www.combatlaw.org
refused to allow us meet the ones who are booked under 17
CLA, while we did meet the other inmates, who were
booked under other charges. The jail authorities of Ranchi
denied the presence of any one booked for being a Maoist
in the jail.
In Ranchi Jail however there is special ward for some
prisoners called upper male wards and upper female wards.
These wards from outside looked extremely well kept like
mini-bungalows. According to the jailor of Ranchi, only 'economically well off and people with high social status' can
avail those wards. This discrimination and the mindset were
shocking too.
Prisons are nowadays said to be a place for so-called
reforms — but even to do this 'reform' the jail custodians
should have the proper perspective and sensitivity themselves. In these jails however, there is no scope for even the
so-called reform to take place. — SR
Most of the women in
prison are unaware of
their rights and are
unable to exercise
these. Due to the lack
of sufficient space,
the undertrials are
lodged along with
the convicts
arrangements for bail, submit to the
court their problems and traumas, or
ask to be released on personal bonds
etc.
Prolonged confinement in the jail
has a negative, grave and irreparable
psychological effect on the person so
confined. Most of the women in
prison are unaware of their rights
and are unable to exercise their
rights. Due to the lack of sufficient
space, the undertrials are lodged
along with the convicts which is
against many of the direction and
guidelines issued by the Supreme
Court. The Central Prison in
Bangalore, for example, has authorised accommodation of 72 female
prisoners but on the date of visit it
was housing 175 prisoners.
Of course, it is not that all the
undertrial prisoners are not produced before the court. Sometimes
when they are produced and specially if they are arrested under the
Immoral traffic Prevention Act they
are sexually harassed, asked sexual
favours, etc. by the male police in the
police van which take to them to the
prison. The women are sometimes
taken to lodges before getting them
back to the prison.
Jailed women suffer doubly
Any abuse, violence, etc., suffered
inside the women's jail does not come
out as it does in cases of men prisoners. They are not articulate and also
many times they are conditioned to
be silent and to bear any kind of discrimination and undue hardship. For
55
WOMEN & PRISONS
example the women undertrials in
prisons such as Raichur, Gulbarga
etc, are made to clean the ration of
rice, cereals etc allotted to the whole
prison but no wages are paid to them.
In many of the prisons the men
cook their own food. However the
women are not allowed to use fire
inside the prison, due to which they
have no chance to cook their own
food at any cost. They are thus
denied the means of earning some
money and also the pleasure of
cooking.
In some of the jails children of the
undertrials suffer abuse but the
mothers do not have the courage to
protest. Women suffer more than
men due to lack of self-confidence
and fear of loss of esteem.
Many times lady police who come
from outstations to escort women to
district courts such as Bellary and
Belgaum are not provided proper
lodging facilities and therefore are
hesitant to take up escort duty.
Women prisioners have no opportunity to upgrade their skills. Even if
there are schemes for unemployed or
destitute women the same is
unknown to them and thus they are
unable to benefit out of such schemes.
In Pomal Kanji Govindji Vs
Vrajilal Karsandas Purohit AIR. 1989
Sc 436 1989 (1) SCC
"it was held that, where a law of
the past does not fit the present context, court should evolve a new law.
However in the case of women prisoners even the existing laws have not
been used to produce them before the
courts.
„
Jharkhand
CHAIBASA, HAZARIBAGH and RANCHI prisons
„ Firstly, both Chaibasa and Hazaribagh jails are
extremely crowded. They are housing almost three
times more than their capacity to hold prisoners.
Although we were not allowed to go inside, the
superintendent herself confessed the infrastructural lacuna which makes life extremely difficult
for the prisoners inside it.
„ One reality with which the women prisoners have to
live is an obvious disassociation from her family
once she is imprisoned, even if they are undertrial
especially when the women are removed from their
native district to the central jail, the family members refrain from meeting them any more, mostly
due to the distance, financial constraints to travel
and also because of the social stigma that is associated with prisoners.
„ Children are allowed to stay with their mothers till
the age of six. After that they are removed from the
jail and the children above six years are not allowed
to stay with the mothers. Both the mother and child
in most cases are separated completely without
meeting each other ever. Almost all the women
who had children over the age of six are completely clueless about the whereabouts of their children.
In some cases mothers who had children below six
years yet they had no idea about the provisions to
keep along with them in the jail.
„ There is complete failure of legal aid from the government. Most cases where the accused cannot
afford to have a lawyer of her own (and most people cannot), is left alone without any proper legal
aid from the government. The accused have no idea
of their lawyers, have rarely met them and hardly
receive any concrete help from them. Many people
have been granted bail, but cannot proceed further
due to lack of proper legal aid. Moreover, many
women remain undertrial for unbelievably long
period even for petty crimes, due to the lack of legal
aid. The legal aid system that exists within High
Court, is also in terrible state. The advocates rarely
56
visit jail and therefore the accused can hardly meet
their lawyer before they are produced in the court.
„ The production of inmates before the magistrate has
been dispensed with due to the provision of videoconference. This takes away the rights granted to
the prisoners to complain to the magistrate if there
is any violence committed against them when in
confinement. Also they loose an opportunity to
meet their family/children or advocate. Rather she
is forced to do it in the intimidating supervision of
the jailors and the police in the jail itself in a secluded manner.
„ The Ranchi jail was comparatively cleaner and
better kept. We however did not witness ourselves
any trace of the 'vocational training' that superintendents of both the Ranchi and Chaibasa jails
claimed to provide to the inmates. In Hazaribagh
jail however, there is no provision at all for the
women to work and earn during their period of
confinement. The door of the toilets in Ranchi jail
was shockingly half exposed while there were no
doors at all in the toilets of Hazaribagh, which
reflects the insensitivity of the jailors about the privacy of the women inmates.
„ In Hazaribagh jail, there are no regular classes for
the inmates for literacy or other skill building
exercise. Most of the inmates within are illiterates.
Although the jail authority claimed the presence
of a library for the inmates, books are not made
available to them despite repeated demands.
There was also no provision for recreation, outdoor, indoor games at all for the inmates. The visit
of the doctor is also shockingly irregular. The jail
also does not provide the prisoners with sanitary
napkins. Moreover the doctor of the female ward
is clueless about that! There is a serious problem
of safe water within this prison. Women prisoners
are devoid of earning any money unlike their male
counterparts who are given opportunities to
weave and stitch clothes.
—SR
COMBAT LAW MARCH-APRIL 2008
LAWS & JUDGMENTS
Landmark orders on
prisoners' plea
Faced with apathy, neglect and prejudice, prisoners often
take plea for a reasonable treatment. Combat Law team
compiles some of the important prison related case laws
emanating both from Supreme Court and High Courts
adhukar
Bhagwan
Jambhale v State of
Maharasthra and others
(Bombay High Court) 1987 Mah. LJ
68.
The Petitioner complained of torture and ill treatment in prison and
challenged a number of various rules
and practices of the prison as violative of Articles 14, 19(1)(a) and 21 of
the Constitution.
The petitioner challenged rules
20, 17(ix) and 23 of the Maharashtra
Prisons (Facilities to Prisoners) Rules,
1962, which put restrictions on the
rights of the prisoners to correspond
with people outside the prison and to
censor their letters on the ground that
they violate their rights guaranteed
under Articles 14, 19(1)(a) and 21 of
the Constitution.
The court held that rule 17(ix)
which permitted a prisoner to send
welfare letters to his near relatives in
other prisons, but not permitted to
send welfare letters to prisoners in
other prisons who, are not related to
him was discriminatory and violative
of Article 14 of the Constitution. The
court stated that a prisoner is entitled
to send welfare letters to prisoners in
the other prisons whether such prisoners are his relatives or not.
Rule 20 prohibited prisoners from
writing letters which may contain
subjects of political propaganda,
strictures on the administration of
prisons and any reference to other
prisoners confined in the prison. Rule
23 gave wide powers to the prison
authorities to withhold the letters
containing objectionable matter and
are entitled to erase such passages in
the letter. The court found that the
blanket restrictions contained in rule
M
www.combatlaw.org
20 were contrary to Articles 14 and
19(1)(a) of the Constitution but that
rule 23 was not unconstitutional.
In the case of punishment, the
petitioner submitted, some appeal
for challenging the order of punishment must be provided for. The
court, however, accepted the respondent's case that an order issued by
the Inspector General of Prisons,
allowed for the Inspector of Prisons,
or the state government, to vary or
reduce a punishment imposed on a
prisoner.
The petitioner also contended that
the grievance procedure prescribed
under the various rules is grossly
inadequate and does not conform to
the guidelines in the matter of
grievance procedure laid down by the
Supreme Court in Sunil Batra v Delhi
Administration, AIR 1980 SC 1579. The
court ordered the state government to
take steps to implement the guidelines. These included: the installation
of a grievance deposit box under the
control of a Sessions judge who is
responsible for recording and investigation the complaints, a complaint
register in the prison office, maintained by a judge, visits to prisons by
judges and lawyers to enable inmates
to voice their grievances and the right
of petition to judicial and governmental departments.
Ranchod v State of Madhya
Pradesh and others (Madhya
Pradesh High Court)
The petitioners in this case were
the father and brother of a prison
inmate (Vengariya) who was given a
lethal injection by the prison doctor,
allegedly as punishment for refusing
to wash the clothes of the doctor,
nurse and compounder in the prison.
A magisterial enquiry had been
ordered but there was no evidence of
any progress having being made. The
court got despaired at the way in
which the prisoner had been treated
by the prison staff, the lengths they
had gone to cover up his death and
the lack of any meaningful recourse
open to the petitioners.
The court held that the suspicious
circumstances in which Vengariya
died necessitated a thorough probe
into the whole episode and criminal
prosecutions of those found to be
responsible. The court ordered the
probe to be completed within 45 days
from the date of this order and those
found guilty must be criminally
charged.
Inacio Manuel Miranda v The
State (Bombay High Court)
This case deals with complaints
made by prisoners about the conditions in their prison.
The court noted the Supreme
Court's view, expressed in the case of
Sheela Barse v State of Maharashtra,
1988 that citizens who are detained in
prisons either as undertrials or as
convicts are also entitled to the benefits guaranteed by the Constitution,
subject to reasonable restrictions.
The prisoners complained that
one single shaving blade was used to
shave several prisoners. This was
defended on account of security reasons. The court held that the prison
should use some sort of disinfectant
to avoid any infection and also to prevent transmission of disease from one
prisoner to another. The court further
stated that this direction should apply
equally to another grievance made
about the use of a common needle for
extraction of blood.
Another complaint related to the
practice of the jail authorities to supply paper to the prisoners free of cost
from the office of the prison for the
purpose of preferring appeals, applications, etc. but where they require
paper for private use, it is sold at 0.08
paise a sheet. Rule 19 of the Prison
Rules stated that writing material
should be supplied by the government without any cost. However,
Rule 17 contemplates that Class I
prisoners can write four letters, two
at the government cost and two at the
prisoner's cost and Class II prisoners
57
LAWS & JUDGMENTS
can write two letters per calendar
month. The court held that the classification in the present Rules was discriminatory and therefore, unreasonable. All convicts should be treated
equally in the matter of writing letters and should be allowed to write at
least four letters per month, two with
the paper supplied by the government, at government cost and two, at
the cost of the prisoner, on the paper
supplied by the government at 0.08
paise per sheet which is stated to be
the cost price.
A further grievance by the prison
inmates was regarding the non-availability of the Jail Rules. Rule 28 of the
Facilities Rule provides that there
should be a library in the prison. The
court noted that the government
appeared to have directed the jailer
that the Rules should not be made
available to the prisoners. The court
found this direction to be wholly
arbitrary and unreasonable. "It would
be against the principles of natural justice to permit the prisoners to be punished or penalised by laws of which they
had no knowledge and of which they
could not even with exercise of due and
reasonable diligence, acquire any knowledge". The court directed the state
government to prepare copies of the
Rules and make them available in the
libraries of the jail and sub-jails.
Prisoners also complained about
the ventilation conditions in the
police lock-up. The court directed the
government to improve the ventilation in the lock-up and to make
arrangements to provide a lavatory.
A grievance was made about the
composition of the Board of Visitors
which should consist of cross-sections of society and the visits should
not be routine ones. The court
ordered the state government to
reconstitute the Visitor's Board and
to implement an effective procedure
for redressing grievances of the prisoners in accordance with the directions given by the Supreme Court in
Sunil Batra v Delhi Administration.
The court ordered the Inspector
General of Prisons to report compliance on these matters within six
months.
In the matter of Prison Reform,
Enhancement of Wages of Prisoners
etc.., Kerala High Court
The two petitioners in this case
58
sought an order that the wages of the
prisoners be enhanced. The court
noted that although the matter had
been brought to the notice of the government three years ago and a specific recommendation on the matter by
the High Court was sent two years
ago no decision was attempted. The
court stated that "We are not going to
decide this case on the basis of ethics
of giving more humane treatment to
a prisoner in jail. That is for the executive and Legislature to concern
themselves with on the basis of a policy approach they may choose to
adopt. We confine our attention in
these cases to the question of the
legality and constitutionality of
denying reasonable wages to a prisoner when, against his will, he has
been compelled to work". Finding
that the prisoners undergoing sentence of imprisonment in the jails of
the State are entitled to the enjoyment of their fundamental rights
except insofar as they may to be curtailed due to the fact of imprisonment, the court examined Article
23(1) of the Constitution which prohibits forced labour and Article 39(a)
which refers to the principle that citizens should have the right to an adequate means of livelihood as well as
Articles 41 and 43.
Relying on Article 23(1) and on
People's Union for Democratic Rights
v Union of India (AIR 1982 SC 1947)
the court took the view that prisoners
are entitled to payment of a fair or
living wage which would be 'reasonable'. The court noted that minimum
wages are at a much lower level than
living wages and that reasonable
wages would therefore always
exceed minimum wages. The court
ordered the government to pay its
working prisoners a sum of Rs 8/- per
day as being a reasonable wage.
Gurdev Singh and others v State
of Himachal Pradesh and others
Both petitioners were prisoners in
jails in Himachal Pradesh. They were
both employed for work but were
being paid Rs 1.5 per day for their
labour. They also complained that no
wages were paid for the first three
months of their work. Furthermore,
they stated that they are forced to
work with contractors either at a lesser wage or for no wages at all. The
court examined the details of the
cases and the relevant constitutional
and international standards on the
subject. The court concluded that, in
its view, subjecting prisoners, sentenced to rigorous imprisonment, to
hard work and providing work to
others is not at all bad. However, this
must be done keeping in view their
will, physical strength and the uppermost obligation to make payment for
the work done by them. There must
be no distinction between work carried out inside the prison and outside
it. On the question of pay, the court
was of the opinion that all the prisoners of various categories in all the jails
in the State are entitled to be paid
reasonable wages for the work they
are called upon to do in the jails and
outside the jails. The wages were left
to be decided by the state government within one year of the date of
decision of these cases. Until then the
court ordered that the prisoners be
paid the minimum wages as notified
by the state government from time to
time under the Minimum Wages Act,
1948, from the date of filing of the
petitions in the Court.
The Court also requested the state
government to undertake comprehensive jail reforms within a year by
appointing a High Power Committee
to advise the state government. In
addition to various other important
aspects, the Committee would also
look into matters like:
(i)
opening of more open air institutions with sufficient agricultural land attached to it so that
prisoners hailing from rural
areas with agricultural background may continue to work
in the same atmosphere and
rehabilitate suitably in their
villages;
(ii) provision for adequate work
inside and outside jails;
(iii) provision
for
different
jails/correctional institutes for
young prisoners, juvenile
offenders, hardened criminals
and other prisoners who suffer
from mental aberrations;
(iv) opening of more open air jails
in the state and one exclusively
for women;
(v) provisions for education and
vocational training;
(vi) liberal remissions and regular
paroles;
(vii) greater opportunities to meet
COMBAT LAW MARCH-APRIL 2008
LAWS & JUDGMENTS
friends and near relatives and
facilities to allow them to discuss their problems away from
the policemen's gaze.
(viii) proper attention for health and
entertainment facilities for
prisoners;
(ix) comprehensive scheme for
procurement of work for them
and payment of reasonable/living wages;
(x)
provision for better dieting
facilities;
(xi) comprehensive management
of their wage funds; and
(xii) provision for after-release for
guidance and help.
The State of Maharashtra v
Prabhakar Pandurang Sanzgiri and
another (Supreme Court)
Prabhakar Pandurang Sanzgiri
was detained by the Government of
Maharashtra under Rule 30(1) (b) of
the Defence of India Rules, 1962, in
the Bombay District Prison in order
to prevent him from acting in manner prejudicial to the defence of
India, public safety and maintenance
of public order. He had written a
book on quantum theory with the
permission of the state government.
He twice applied to the Government
of Maharashtra seeking permission
to send the manuscript out of the jail
for publication. His request was
refused on both occasions. He then
filed a petition under Article 226 of
the Constitution in the High Court
directing the state to permit him to
send out the manuscript of the book
written by him for its eventual publication.
The court held that since there
was no condition in the Bombay
Conditions of Detention Order, 1951,
prohibiting a detenu from writing a
book or sending it for publication,
the State of Maharashtra infringed
the personal liberty of the first
respondent and acted contrary to law
in refusing to send the manuscript
book of the detenu out of the jail.
Kunnikkal Narayanan v The
State of Kerala and another (Kerala
High Court)
The petitioner had been detained
under the Maintenance of Internal
Security Act, 1971. He requested a
direction that three books: Four
Essays on Philosophy by Mao Tsewww.combatlaw.org
Tung, Mao Papers by Jerome Ch'en
and Mao-Tse-Tung by Stuart Sehram,
be delivered to the petitioners. The
three books were sent to the petitioner but he was not permitted to
receive them on the ground that the
books fell within the term 'Mao literature' under Clause 19 (1) (b) of the
Kerala Security Prisoners' Order,
1971 which stated that it will not be
permissible for Security Prisoners to
The prisoners
complained that one
single shaving blade
was used to shave
several prisoners. This
was defended on
account of security
reasons. The court
held that the prison
should use some sort
of disinfectant to
avoid any infection
and also to prevent
transmission of
disease from one
prisoner to another
receive or purchase Mao literature.
The petitioner sought an order
that this provision was illegal. He
also argued that that Clause 19(1)
infringed the fundamental rights
guaranteed to the petitioner under
Article 19(1) (a) includes the freedom
to acquire knowledge, to peruse
books and periodicals and read any
type of literature and restrictions
relating to such a right which can be
said to be reasonable restriction. It
was urged that the refusal of permission to receive the three books mentioned above is an unreasonable
restriction.
The court noted that the words
'Mao literature' covered both inflammatory and non-inflammatory materials. The court stated that wide and
ambiguous words 'Mao literature'
did not achieve the desired result
and so the order should be set aside.
M A Khan v State and another
(Bombay High Court)
The petitioner was detained in
prison. He had been trying to get
hold of certain journals and periodical at his own cost but he was denied
permission to receive them. The jail
authorities did not allow him to purchase or receive the journals and
periodicals on the ground that they
were not included in the official list
of newspapers allowable to security
prisoners of Class 1. The petitioner
applied to the court for an order or
direction stating that he was entitled
to the literature he had chosen.
The court took the view that the
liberties of a detainee cannot be curtailed by imposing such stringent
conditions on which publications he
can and cannot read. The court noted
that the state government may prevent a detainee from receiving periodicals and books which cannot be
lawfully obtained by people, who are
not under detention. Books and periodicals which are proscribed, or
which are obscene, may be disallowed on those grounds, but not
books and periodicals which can be
freely had by the general public.
The State of Maharashtra and the
Superintendent of the Bombay
District Prison were not entitled to
disallow the petitioner from receiving the newspapers and periodicals
he had requested and were directed
to remove the said restriction and
allow the petitioner to receive the
newspapers and periodicals, at his
cost.
George Fernandes v State
(Bombay High Court)
The petitioners were both prisoners. He challenged the practice of the
prison superintendents to restrict the
number of books to be made available to each petitioner. In one prison
the number was restricted to 12, 10
non-religious books and two religious books. The petitioners' contention is that there is no justification
for so restricting the number of the
59
LAWS & JUDGMENTS
books to be made available to either
of them and that the Conditions of
Detention Order 1951 does not contain restrictions on the number of
books available to detainees.
The first petitioner was a prominent trade union worker and member of the Socialist Party of India and
a
member
of
its
National
Committee. As a full time social,
political and trade union worker he
required a number of books on a
wide range of subjects. For this purpose he has received from his personal source number of books on
these topics some of which had been
confiscated being deemed 'unsuitable'. The second petitioner was an
active trade unionist and a member
of the State Secretariat of the
Maharashtra Committee of the
Communist Party. He complained
that the prison superintendent has
refused to hand over all books
required by him on the ground that
he could have only six books at a
time and no more.
The court stated that the
Superintendent did not have an
unrestricted power to curtail any of
the privileges set out in the
Conditions of Detention Order 1951
but that he did have discretion to
decide whether a book was suitable
or not. The court stated that this discretion must be exercised within "a
well-defined field". The court stated that a book may be considered
unsuitable because it preaches violence, it may be vulgar or obscene, it
may be pornographic, or it may
have been proscribed. Beyond this,
the court did not find any power in
the Superintendent to withhold a
book from a detainee on any other
ground. The court also stated that it
failed to see any rational justification for restricting the number of
books that a prisoner could have at
any one time.
The court directed the prison
superintendent not to put any restriction on the number of books that
were supplied to each of the petitioners unless a particular book is determined to be unsuitable by the authority for reasons set out above.
Frances Mullin v Union Territory
of Delhi and others (Supreme
Court)
The petitioner, a British national,
60
was arrested and detained under the
Conversation of Foreign and
Prevention of Smuggling Activities
Act (COFEPOSA Act). Under the provisions of this Act the petitioner was
permitted to have an interview with
her five-year-old daughter no more
than once a month. The petitioner's
lawyer also experienced significant
difficulties in arranging meetings
with her. The restrictions on her
meeting were imposed by powers
conferred under Section 5 of the
COFEPOSA.
The petitioner therefore challenged the constitutional validity of
the restrictions under Article 32. The
principal ground on which the constitutional validity of the provisions
was challenged was that they were
violative of Article 14 and 21 of the
Constitution inasmuch as they were
arbitrary and unreasonable. It was
contended on behalf of petitioner
that allowing interview with the
members of the family only once in a
month was discriminatory and
unreasonable, particularly when
undertrial prisoners were granted the
facility of interview with relatives
and friends twice in a week under
Rule 559A and convicted prisoners
were permitted to have interviews
with their relatives and friends once
in a week.
The petitioner also argued that a
detainee was entitled under Article
22 of the Constitution to consult and
be defended by a legal practitioner of
her choice and she was, therefore
entitled to the facility of interview
with a lawyer whom she wanted to
consult or appear for her in a legal
proceeding. She argued that the
requirement of prior appointment
for interview and of the presence of
customs or excise officer at the interview was arbitrary and unreasonable
and therefore violative of Articles 14
and 21.
The court found that as part of the
right to live with human dignity and
therefore as a necessary component
of the right to life, the petitioner
should be entitled to have interviews
with the members of her family and
friends and no prison regulation or
procedure laid down by prison regulation regulating the right to have
interviews with the members of the
family and friends can be upheld as
constitutionally valid under Article
14 and 21, unless it is reasonable, fair
and just. The court found the restrictions on visiting to be unreasonable
and arbitrary and violative of Articles
14 and 21.
The court also found that the rule
restricting the right of detainees to
have interviews with a legal adviser
of his choice was violative of Article
14 and 21 and must be held to be
unconstitutional and void.
Danial
H
Walcott
v
Superintendent, Nagpur Central
Prison (Bombay High Court)
The petitioner challenged the
legality of the punishment of 30 days
separate confinement awarded to
him by the Superintendent of
Nagpur Central Jail under the Prison
Act. He had found with a fellow prisoner, the superintendent of the
prison had demanded an explanation
and the incident was over. Three
weeks later the Superintendent
informed him that he was being punished for the incident through separate confinement.
Section 46 of the Prisons provides that the Superintendent may
examine any person touching any
such offence and determine thereupon and punish such offence by
awarding the punishments which
are specified in that Section. The
question for the court was whether
the petitioner's contention that he
has been found guilty of a prison
offence without complying with the
provisions of Section 46 of the
Prisons Act, and therefore, the punishment awarded to him is justified
or not. The inquiry was made without questioning the petitioner. The
court held that the process of determination under Section 46 implies
the application of mind by the
Superintendent to the material
before him and he has to determine
objectively whether the person
charged with a prison offence has
been proved to have committed that
offence. The court found the enquiry
claimed to have been made by the
Superintendent to be in clear violation of the provisions of Section 46
of the Prisons Act because being of
quasi-judicial nature the decision
must be made according to the principle of natural justice of which the
right to be heard is an essential characteristic.
„
COMBAT LAW MARCH-APRIL 2008
RIGHT TO DIET
he present structure of prison
as an institution has evolved
over a period of more than oneand-a-half century. The basic structure of prison was built by the 19th
century state in an atmosphere of
strong punitive ideology and resentment and prejudice against native
population. Now the same structure
is expected to serve the purpose of
reformation as well. In the context of
failure of prison to reform prisoners,
we have been witnessing attacks
against the antiquated prison laws
and manuals but we rarely find a critique about the structural nature of
prison as an institution. Exploring
genealogy of the institution is important to understand the historically
evolved structural nature of prison.
This is necessary in order to make
explicit the contradictions between
the structural nature of prison and its
ability to realise the expectations of
modern reformative prison ideology.
That would also give us a clue to the
basic functions the prison continues
to serve.
There are some important components in the present prison structure.
They appear to be natural and essential parts of the system of imprisonment. Since the rules related to various components of prison are very
elaborate, they can be systems by
themselves. An exploration historically into nature of these subsystems
gives us an insight into the factors
that led to the formation of the institution in the present form and thereby, we will be able to raise certain relevant questions about the gap
between present prison ideology and
its relevance to the present structure
of prison. Therefore an attempt is
made to trace principles and objectives followed by governments to
evolve one of the components of
penal institution: Prison Diet. Here it
is argued that the construction of
prison diet reflects role of prison as
an institution to maintain the social
status quo.
T
Mess system
At present diet is commonly cooked
and supplied to all prisoners according to certain measure, purported to
be necessary to keep them in a good
condition of health. But the system of
diet evolved only after committee on
prison discipline of 1838 recomwww.combatlaw.org
mended it as a part of over all disciplinary measure. Prior to 1838 in
India, with little variations, all the
prisoners were supplied with a daily
money allowance with which they
were permitted to purchase their
own food from one or more shopkeepers who were allowed access to
prison. Prisoners used to save some
money from their allowance to bribe
the prison personnel and escape the
custody. Therefore the government
had to confront the problem of secu-
rity. It proposed to replace this system with that of ration to prisoners.
Though the government was aware
of the fact that the system of money
allowance to the prisoners is better
since it allows variety of food than in
a system of unvarying daily ration, it
strongly recommended ration system
because marketing and cooking by
the
prisoners
under
money
allowance system was luxury and
great source of enjoyment, privation
of them was expected to serve as a
Prison is an institution of social status quo. A study
into designing of prison diet that has served as a tool
of punishment, besides being discriminatory against
poor masses since the days of British Raj, still
continues robustly, writes Murali Karnam
Lashes
of hunger
61
RIGHT TO DIET
"legitimate means" of enhancing the
effect of imprisonment. This would
increase the severity of the punishment during imprisonment and
thereby term of imprisonment can be
proportionally (proportional to
increased severity) reduced without
affecting the efficacy of punishment.
The system of supplying ration preempted the possibility of saving the
smallest surplus of money by the
prisoners that was possible under the
system of money allowance.
Under the system of ration, as it
exists now, a common kitchen was
provided for all the prisoners. This
arrangement removed the individual
cooking by the prisoners. Though
there was some hesitation on the part
of the colonial government to implement common kitchen system on
account of high and low caste and
Hindu and Muslim differences
among the prisoners. It came into
existence as it saves all the time spent
by each individual prisoner in cooking. The time of prisoners thus saved
can be used for the extraction of more
labour from them. Nay, with the
introduction of ration system, one of
the important aspects of the prisoners' life had been brought under the
control of prison. The system's potential to become a major source of control over prisoners was immediately
realised. With the result, privation of
food to prisoner became one of the
common forms of punishment for
breach of prison-discipline (Para
286). By and large, the new system
was expected to save money to the
government, extract more labour
from prisoners by tapping their time
and increase the efficacy of punishment.
In 1860 Dr Mount submitted a
special report to the Supreme Court
of government of Bengal on dietary
for adoption in Indian jails. It recommended varied scales of diets to prisoners on the basis of their labouring
capacity, length of sentence, conviction and undertrials, male and juveniles, sex, and prisoners from plain
areas and hilly areas, besides tribals.
On the basis of these recommendations different provincial governments designed their dietary scales
to suit their geographical areas, but
without loosing sight of the economy.
The scale of diet was so extremely
regulated that the results proved to
62
Prior to 1838 in
India, with little
variations, all the
prisoners were
supplied with a daily
money allowance
with which they were
permitted to
purchase their own
food from one or
more shopkeepers
who were allowed
access to prison
be fatal for short-term prisoners and
undertrial prisoners. This does not
mean that the prisoners of all races
were treated with an eye on the economy. The cost of the dietary charges
for European and East Indian prisoners were always three times more
than what was spent on the 'native'
prisoners.
Throughout the last half of 19th
century, economical management of
the prisons was the fundamental
focus of the colonial state. Prison officials were vying with one another to
show the lowest possible dietary
charges spent on prisoners. The regular test of weight of prisoner and
organising dietary under the supervision of medical officers are certain
safeguards provided to prevent the
malpractices in distribution of food.
The vast majority of prisoners who
came from the lower classes of society would have no spare flesh on
which to fall back. With this the
result is that the prisoners loose their
health even if they lose two or three
lb in weight. The prison officials used
to manipulate the records of weight
test. On the whole tampering with
diet scale was resulting in extremely
hazardous health consequences to
prisoners.
The most important aspect that
guided the designing of diet to the
prisoners was its adjustment to the
work to be extracted. The minimum
ration provided to the prisoner to
maintain the energy to labour for
nine hours a day, hardly leaves any
spare energy to the prisoner after his
work. Even when special diet such
as animal food was provided to certain sections such as prisoners from
tribal communities, the consideration
was their labouring capacity. The
practice of reducing the prisoner's
diet in accordance with the length of
his term was followed but supposed
to be under medical supervision.
Under this system, scale of diet is
gradually reduced with the nearing
of end of prisoner's sentence. Any
COMBAT LAW MARCH-APRIL 2008
RIGHT TO DIET
tampering with the diet scale results
in the loss of weight to the prisoner.
The diminution of food as a punitive
measure and on account of Sunday,
corruption and pilfering of ration by
the prison staff used to result in
increase in the prison mortality rate.
Further the distribution of diet was
so regulated as to keep the prisoner
energetic only during the time of
work. The general practice was to
give only two meals in the 24 hours
with an interval of six hours between
them evening meal being the principal one; that is to say, for 18 hours
from 5 p.m. to 11 a.m, the prisoners
were without food and for the last
five or six hours they are expected to
do hard work. One reason for following this system of providing diet was
the colonial state's belief that this is
the habit of the free population of the
country. However, since the prisoners were placed at work from early
morning at 5.30 to 10.30, and again
from 1.30 to 5.30 in the afternoon, the
gap between evening meal and first
meal of the next day was proposed to
be reduced with the introduction of
one more meal in the early morning.
But this doesn't mean that additional
ration would be provided to prisoners. The early morning meal was
obtained by a deduction from the full
sanctioned scale for the two daily
meals. This method of adjustment of
ration into three meals was hardly
surprising since the diet scale was
designed primarily to reduce the cost
www.combatlaw.org
The system of dietary
established on lines
of economy and in
tune with labour of
the prisoner has
been continuing
throughout the 20th
century, but with
gradual refinement
of safeguards
against the
malpractice in the
quality and quantity
of food by the prison
personnel
of jail ration.
The diet scales fixed in Indian
Jails at the end of 19th century were
not altered fundamentally by the
Indian jails committee, 1919-20 and
were continued with small refinements, which further intricately
linked the diet with the labour of
prisoners. Following the researches
by Major. D. McCay, IMS into jail
dietaries, which proved that a diet,
which includes more than 29 ozs of
rice, is in excess of physical requirements, the Indian jails committee recommended the government to consider the research. By then the grain
ration of a labouring male convict
was reduced from 24 ozs to 20 ozs in
Madras Presidency. It was claimed
that this reduction improved the
health of the prisoners. In the light of
the experiments made in the past, it
was suggested to reserve the maximum ration for prisoners on those
forms of labour, which are classed as
'hard' and a smaller ration for the
forms of labour which are classed as
'medium' and 'light'. This practice
was already being followed in
Bombay Presidency.
Once the dietary scales were
decided to be at these levels, which
were minimum necessary for various
kinds of body constitutions of prisoners, the power vested in the medical
officer to alter the dietary scale was
conceived to be dangerous, since
economising at the cost of lives of
prisoners and corruption were
known practices in the prisons. But
this power of medical officer cannot
be taken away altogether. The prior
permission of IG prisons and the
government were made compulsory
to alter the dietary scales. This was
expected to be a safeguard against
the reduction of diet to the prisoners.
Thus the efficiency and economy of
the prison management had been
contingent upon maintenance of
close linkage between diet and
prison labour.
The system of dietary established
on lines of economy and in tune with
labour of the prisoner has been continuing throughout the 20th century,
but with gradual refinement of safeguards against the malpractice in the
quality and quantity of food by the
prison personnel. The continuation
of link between the labour and diet
can be seen in the present system of
labouring and non-labouring diet.
The invention of minute ways of
economising in diet by colonial state
began to be a great source of corruption by the prison personnel in the
post-colonial state also. This does not
mean that there was no corruption or
63
RIGHT TO DIET
malpractice in the colonial prison
personnel. But it was checked effectively by the colonial state, since it
was interested in efficient management of system for its avowed policy
of earning more profit or revenue.
But in the post-colonial India, the
prison personnel used the techniques
of substituting the cheap cereals,
pulses, foodgrains or vegetables for
qualitative food grains for the purpose of corruption. This technique
was used by the colonial state to
cheapen the cost of diet. Though the
Mulla committee recommended that
the diet should be designed with as
much variety as possible, the system
of purchasing food articles through
contract system and other institutionalised forms of organising food
(for instance, cooking food for thousand prisoners in the same kitchen)
made the prison diet monotonous.
The committee clearly recognised
that monotony of prison diet has
been an additional ingredient of punishment. It is the most visible form of
punishment in the present prison
system, but as it was pointed out that
the present form of dietary system
has its genesis in the punitive nature
of it, designed in the early 19th century. The present form of dietary is
direct vestige of otherwise a dominant form of punishment. The role of
diet as a punitive measure will be
discussed in the offences and punishment section.
We have to keep in mind that the
colonial state constructed the prison
diet in quantitative terms but not in
qualitative terms. In the post-colonial
period it seems the All India prison
manual committee did not pay attention to this vital aspect of prisoner.
The first report of central bureau of
correctional services brought out in
1971 after 10 years of its formation
did not discuss anything about this
issue. First time the All India committee on jail reforms in 1983 proposed that the norms of prison diet in
terms of calorific and nutritional
value, quality and quantity should be
established. Of course it also gave
vent to defencive expression in the
following words: “the food should be
of good medium quality.”
What is the attitude of policy
makers, colonial and post-colonial,
apart from economising that guided
construction of the prison dietary in
64
the present scale? The fact that 90
percent of prisoners come from
labouring classes was basically taken
into account while constructing the
scale of dietary. The fact that labour
population lives upon an inferior
quality of food, which is sufficient or
insufficient to sustain strength and
health was also considered. The
Macaulay committee felt that "the
prisoners fare better and more fully,
than the agriculture labour". It was
therefore felt that "to make honest
labourers on hard fare pay for supplying a dishonest labourers with
luxurious fare, ... a direct injustice,
attended with indirect evils still more
injurious than its direct injustice".
Therefore it was decided that the
prisoner should live like the mass of
his class out of prison. In accordance
with this line of thinking, the prison
diet was constructed with coarsest
grain on which the mass of people of
that district lives. This principle was
followed throughout the 19th century and at the end of the century, diet
was reaffirmed as the axiom of jail
management by the committee on
jail administration in India, 1889. The
report said that "prison diet scale
should be composed entirely of those
staples of food to which the poorer
classes of locality are accustomed
and it is a serious mistake to introduce into a jail diet such articles as
honest poverty cannot obtain (save
as occasional luxuries) during a life
of labourer". The experiments conducted in dietary on these lines of
thinking was claimed to be serving
its intended purpose and therefore
was reaffirmed the policy by the
most important Indian jails committee of 1919-20. This policy has not so
far been explicitly revised or
denounced by the post-colonial state.
The dietary scale constructed on the
basis of equation of prisoner with the
poor labourer of the low class masses
is still continuing. The government
report of 1971 says, "Jails should not
be made more comfortable than outside". The Mulla committee 1983
does not equate the prisoners explicitly with the poorer sections of society, but suggests, "Prisoner should be
given food which is normally eaten
by people in that area". The prison
discourse in the post-colonial times
did not explicitly recognise the social
class identity of the prisoner but subsumed it under geographical location. Is this attitude justifiable in the
post-colonial environ?
One of the important promises
the post-colonial state made to the
people has been to raise their standard of living to a higher level that is
compatible with the human dignity
and rights envisioned in the
Constitution. This promise also gave
the impression that people have the
right to expect better conditions of
living from the state. This right to
expectation transforms people to citizens. The Constitution has conferred
this new status on the people. But it
is known fact that in practice only
economically and socially privileged
sections of society gained this status
and a large majority is denied of it.
This basic trend can be seen as an
underlying thread in the understanding of pre and post-colonial states on
the question of standard of lives of
prisoners. Therefore an element of
social status quo can be seen in the
treatment of prisoners on par with
the lower classes of society. Thus
linkage between fixation of dietary
scale and class of the prisoner has
been one of the sites of organising
status quo by the state.
—The writer holds a doctorate on
history of prisons and prison reforms in
India. He is a human rights activist and
is working with Programme Prison
Reforms of CHRI, New Delhi
COMBAT LAW MARCH-APRIL 2008
P R I S O N AT R O C I T I E S
Hunger Strike in AP
Jail
Kadapa Central Jail's only claim to fame is an en masse hunger strike by its inmates. This
was resorted to about two years ago in the wake of removal of the prison doctor after he
found food given to prisoners unfit for human consumption. A report by the
Commonwealth Human Rights Initiative team that visited the jail
he absence of functional and
effective institutional mechanism to address the grievances
of prisoners and unaccountability of
penal institutions in Andhra Pradesh
led to a fierce agitation by the prisoners in the Kadapa Central Prison.
This was a little over two years ago.
The developments were such as to
make (Commonwealth Human
Rights Initiative) CHRI to intervene.
All the 800 odd prisoners, convicts as well as undertrial prisoners
of the Central Prison of Kadapa district went on hunger strike en masse
on 23 and 24 of December 2005. The
immediate reason for the hunger
strike was to protest against the arbitrary transfer of prison physician, Dr
Prathap Reddy to his parent department. The protest was the culmination of the attempts by the prisoners
to improve their horrible conditions
of living, especially the prison diet.
Kadapa is one of the important
districts in the Rayalaseema region of
south Andhra, from which the present chief minister of the state hails.
Kadapa central prison is also the first
prison, originally meant to be a district jail but later converted into a central prison in the region. The inordinate delay in the construction of the
prison, began in 1975 and completed
in 1992, tells a story of its own. Since
it was meant to be a district jail, its
authorised capacity to accommodate
prisoners is only 500, including 12
women prisoners. But the prison has
been accommodating more than 900
prisoners at any time and overcrowding has been a problem for the past
six years. Moreover, the location of
the prison at the rocky foothill in the
outskirts of the town in a completely
a dry and hot atmosphere makes the
life inside the prison below the subhuman level throughout the year.
It was in the month of October
2005 that 16 prisoners fell sick and
T
www.combatlaw.org
started vomiting. The prison doctor
took serious note of the incident and
inspected the food items supplied to
the prisoners next day and found
that vegetables and mutton supplied
by the prison contractor are putrefied. He also found that rice supplied is rotten, that is from Punjab
state, which is of completely different sort and unpalatable to the
In spite of the
National Human
Rights
Commission's
strong advocacy for
preservation of
human rights, verbal
abuse and
humiliation, denial
of basic rights,
inaccessibility to
ordinary jail facilities
are examples of
several inhuman
atrocities rampant
in jails
inhabitants of this region. Therefore
he reported the same to the superintendent and suggested for change in
the quality of diet and discharged
his duty. The superintendent however accused the doctor of supporting
the prisoners and reprimanded him.
While the recommendation of the
doctor won the hearts of the prisoners, it created rift between the doctor
and superintendent. This situation
was neither communicated to other
personnel in the district nor it
appeared in the press. According to
the information available, it seems
that the range deputy inspector general of prisons, whose office is also in
the town did not intervene to correct
the situation.
While the situation was like this,
the district judge and superintendent
of police made a formal visit to the
prison in the first week of November
2005. The two were accompanied by
the prison staff and taken to a particular barrack to interact with prisoners.
At the same time the prisoners from
different barrack raised their voice
and demanded that the visiting officials should also speak to them. As the
visitors accepted the same, the prisoners demanded that prison superintendent should be away, while they
speak to them. In his absence the prisoners poured out their problems to
the visiting officials. First of all they
complained that they are given
spoiled vegetable, mutton and
unpalatable quality of rice. They also
complained that whenever they raise
their voice for better facilities, they are
punished and denied medical treatment from outside hospitals. They are
also transferred to other prisons far
away, which deprives them of visits
by their relatives. This involves economic burden on their poor family
member. As per the prison rules, prisoners cannot be transferred on administrative grounds without the prior
permission of the inspector general of
police (prisons), but it appears it is
carried out as a matter of routine at all
levels. On the whole they expressed
their lack of confidence in the superintendent of the prison.
65
P R I S O N AT R O C I T I E S
In response to the complaints
made, the visiting personnel proposed that committee of three prisoners should be constituted to
receive the rations from the stores
every day and supervise the cooking themselves. The prisoners insisted that the visiting judge constitute
a committee then and there. The
Judge Ms Vijaya Laxmi selected
three prisoners randomly and constituted the committee. She also
requested the deputy superintendent of the prison, a young and
dynamic officer, to take charge of
the prison for time being and directed the prison doctor to ensure the
quality and quantity of the diet
everyday. She also directed the
prison officials to change the rice of
Punjab variety immediately. The
superintendent of the police also
assured the prisoners the adequate
number of police escort required for
special medical treatment in hospitals outside the prison and to attend
the courts regularly .
In fact the prison regulations
provide for a mechanism to redress
prisoners' grievances related to their
welfare by themselves. AP Prison
Rule 303 provides for constitution of
Prisoners Panchayat Board with the
democratically elected prisoners for
the purpose for a period of six
months. Depending on the total
number of prisoners, adequate
number of representatives called
Panchas is to be elected. According
to rules, the superintendent presides
over the board that meets once in 15
days to discuss all the issues related
to welfare of prisoners. The board
has the special rights to supervise
the rations and kitchen. The board is
provided in the regulations with the
aim of creating a sense of responsibility and self-reliance among the
prisoners. If this mechanism functions in true spirit, most of the discontentment among the prisoners
can be removed as and when they
appear.
But as per the information we
collected during our research last
year, what happens with regard to
these Panchas is completely different in most of the prisons in the
state. Except the long-term prisoners, most of the inmates are not
aware of the panchayat system provided in the manual. In most of the
66
prisons, elections are not conducted
for the board. Wherever the
Panchas exist, they are nominated
by the officials, who never raise any
issues with the officials. In Kadapa
Central Prison, there has been no
prisoners panchayat board since its
inception in 1995. The result is the
eruption of discontentment we are
discussing.
The directions and changes proposed in the prison by the district
sessions judge had in effect divested
the prison superintendent of his
powers so far as the diet and its supply are concerned. The deputy superintendent and prison doctor scrupulously followed the directions and
allowed the prisoners to have a say in
the quality and quantity of the diet
supplied. The changes had resulted
in the heartburning in the superintendent of the prison.
On 22nd December the medical
and health department informed the
prison doctor to report to it as he was
repatriated by the prisons department. On that day he visited the
prison last and informed the prisoners that he was getting relieved from
the prison service. As an immediate
response to this, all the 800 odd prisoners went on hunger strike from
next day.
Dr Prathap Reddy chose to join
the Kadapa Central Prison service in
the year 2002. He is committed to his
profession and says that he professionally gained a lot in the prison
medical service as it gave him
opportunity to exclusive medical
practice with focus and close observation of patients, whereas he is
expected to handle the administrative responsibilities in the mainstream medical practice as a deputy
civil surgeon. He was to retire in
June 2006.
The Department of medical and
health services was informed by the
director and inspector general of
prisons and correctional service that
the prison doctor is repatriated to his
parent department on the administrative grounds. He was never served
any show-cause notice nor was
informed of any allegations against
him. The doctor who wanted to retire
from prison service was surprised
with the developments.
Next to the day of transfer of
prison doctor, prisoners including
the sick went on hunger strike en
masse. By the end of the day, the sick
prisoners fell seriously sick and were
taken to hospital outside the prison.
And next day 16 more prisoners
were shifted to the outside hospital.
With the precipitation of the situation, joint collector visited the prison
and pursued the prisoners to give the
fasting by assuring them that he
bring all the issues to the notice of
district collector.
Few days after the hunger strike,
the deputy inspector general of prisons visited the prison and removed
the prisoners committee appointed
by the judge and appointed three
Panchas claiming that it is his prerogative and power but not of district
sessions judge. With this the living
conditions in the prisons is back to
square one and suffering of prisoners
continues.
The response of the prison superintendent through out the agitation
has been that the prison doctor was
inciting the prisoner against the
administration; prisoners never
brought these issues to the notice of
DIG of prisons; and some prisoners
belonging to opposition political
party tried to create disaffection
among the prisoners.
The nature of the response of the
prison personnel from director general to prison superintendent at least
in the present context appears to be
that they do not need to care about
the directions and recommendations
of district judiciary and other departments in the maintenance of the
prison. From his statements the
superintendent appears to believe
that he is accountable to his own
superiors in the department but not
to others. It appears that prison personnel respect only the principle of
vertical accountability but not horizontal accountability at the district
administration level.
The response of the district
administration to the problem of the
prison and prisoners are usually in
the manner of fire fighting and the
issues around the penal institution
have never generally been an area of
priority. The functioning of Board of
Visitors regularly can be an effective
linkage in bringing together prison
and district administration, otherwise which are functioning completely independent of each other. „
COMBAT LAW MARCH-APRIL 2008
PRISONERS’ RIGHTS
he degree of civilisation in a
society can be judged by entering its prisons. A society cannot
be deemed to be civilised unless it
treats its prisoners with sympathy
and affection. This treatment is not
possible till the society recognises
and accepts their basic human and
fundamental rights. "No one shall be
subjected to torture or to cruel, inhuman
or degrading treatment or punishment".
Article 21 of the Constitution of India
recognises the right to life. It includes
a right to live with dignity. This
strengthens the mandate for the
humane treatment of prisoners. A
prison atmosphere can be accepted
as civilised only if it recognises the
basic human and the constitutional
rights of prisoners and makes efforts
for the effective and meaningful
enjoyment of these rights by means
of prison reforms.
The Indian Prisons Act, 1894 and
the Indian Prisoners Act, 1905 form
the bedrock of prison administration
in India. The Indian judiciary, acting
as the guardian of the rights and liberty of the citizens has time and again
laid stress on the behaviour meted
out to prisoners. The Supreme Court
in many cases has spelled out the
rights of convicts in clear terms.
T
Discipline
and Punish
Respect for prisoners' rights is not called for on charitable
basis but is a requirement of the Constitution and numerous
orders passed by the Supreme Court, writes Yogendra Aldak
Prison reform
Prison reform is the attempt to
improve conditions inside prisons,
aiming at a more effective penal system. Modern prison reform in the
country can be said to emanate for
the first time from the Indian jails
committee of 1919-20, which identified reformation and rehabilitation as
the true objective of prison administration. Subsequently the Mulla committee on jail reforms, which was
convened on 25 July, 1980, had recommended that the protection of
society as an objective of punishment
had been universally accepted and
this can be achieved through reformation and the rehabilitation of
offenders. The committee came to the
conclusion that a progressive prison
system has to operate keeping in
view the protection aspect as much
as correctional and rehabilitation
aspects. The constitutional rights of
the prisoners shall have to be interpreted in such a way that larger public interest does not suffer while trying to be soft and considerate
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towards prisoners. Efforts have to be
made to reform them so that when
they come out of prison they are better citizens and not hardened criminals. It would be useful to note the
general position of prisons in the
country as mentioned in the 1994-95
Annual Report of the National
Human Rights Commission.
Prisoners and human rights
If a person is incarcerated, it does not
mean that inhuman treatment may
be meted out to him and he be
deprived of his fundamental rights.
He cannot be segregated in 'quarantine' as if he is an inmate of a 'fascist
concentration camp'. Prison officials
cannot resort to oppressive measures
to curb the political beliefs of their
opponents. The government cannot
prevent a detainee from publishing a
book. A prisoner also has a right to
acquire, hold and dispose of property. Incarceration cannot be an impediment to it. The term 'life' means
something more than mere animal
existence and the inhibition against
its deprivation extends to all those
limits and faculties by which life is
enjoyed.
In spite of the National Human
Rights Commission's strong advocacy for preservation of human rights,
verbal abuse and humiliation, denial
of basic rights, inaccessibility to ordinary jail facilities are examples of
several inhuman atrocities rampant
in jails. Section 12(c) of the Protection
of Human Rights Act, 1993, authorises the Commission to visit, under
intimation to the state government,
any jail or any other institution under
the control of the state government,
where persons are detained or
lodged for purposes of treatment,
reformation or protection to study
the living conditions of the inmates
and make recommendations thereon.
Formation of a permanent committee, which shall consist of members
of the state human rights commission
as well as members of the prison
administration, in permanent liaison
with each other, could effectively
curb the problem of violation of
human rights in prisons. One more
effective alternative is regular feedback from prisoners by keeping complaint boxes in every prison cell,
which shall not be under the scrutiny
of the prison authorities but under
the direct scrutiny of the state human
rights commission.
The literature on prison justice
and prison reform shows that there
are nine major problems which afflict
the system and which need immediate attention. These are: (1) overcrowding; (2) delay in trial; (3) torture and ill- treatment; (4) neglect of
health and hygiene; (5) inadequate
food and inadequate clothing ;(6)
67
PRISONERS’ RIGHTS
prison vices; (7) deficiency in communication; (8) streamlining of jail
visits; and (9) management of openair prisons.
Overcrowding may be taken care
of by taking recourse to alternatives
to incarceration. These are: (1) fine;
(2) civil commitment; and (3) probation. The Report of All India committee on jail reforms (1980-83) has mentioned various types of remission
and has made some recommendations to streamline the remission system. On premature release, which is
effectively parole, the committee has
stated that this is an accepted mode
of incentive to prisoners, as it saves
them from the extra period of incarceration; it also helps in reformation
and rehabilitation. In appropriate
cases the High Courts have exercised
their jurisdiction under Sec.482 CrPC
for quashing of FIR investigation,
and terminating criminal proceedings if the case of abuse of the process
of law was clearly made out. Efforts
have also been made to streamline
jail visits. Prison visits fall into three
categories: (1) relatives and friends;
(2) professionals; and (3) lay persons.
In the first category comes the
spouse. Denial of conjugal life during
the entire period of incarceration creates emotional problems. Visits by
professionals, i.e. the lawyer, has to
be guaranteed to the required extent,
if the prisoner be a pre-trial detainee,
in view of the right conferred by
Article 22(1) of the Constitution.
The judicial view
Sunil Batra v. Delhi Administration and
Others dealt with the question of
whether prisoners are entitled to all
constitutional rights, apart from fundamental rights. In that case the
court was called upon to decide as to
when solitary confinement could be
imposed on a prisoner. The court was
also called upon to deal with prison
vices and the judgment protected the
prisoners from these vices with the
shield of Article 21.
Justice Krishna Iyer has stated,
"Prisons are built with the stones of
law".
Are the prisoners persons? Justice
Krishna Iyer replied yes—to answer
negatively is to convict the nation
and constitution of dehumanisation
and to repudiate world legal order.
In Charles Sobhraj v. Superintendent
68
of Tihar Jail, it was stated that the
court would intervene even in prison
administration when constitutional
rights or statutory prescriptions are
transgressed to the injury of a prisoner. In that case the complaint was
against incarcerator torture, bar fetters, solitary confinement.
In Hussainara Khatoon v. Home secretary, State of Bihar, the first PIL by
way of habeas corpus petition was
filed in January 1979 and sought the
release of prisoners who had been
languishing in prison without trial
for long periods ranging up to 10
years or more. The period of imprisonment already undergone by many
of them was more than the maximum
punishment that could have been
awarded if they had been tried and
convicted. The SC held:
(1) Speedy trial is an essential
ingredient of "reasonable fair and
just" procedure guaranteed under
Article 21 of Constitution and state
cannot deny the newly declared constitutional right of speedy trial to the
accused on the grounds of its financial constraint or administrative
inability.
(2) It is the responsibility of the
state to provide free legal services for
poor accused and if it is not provided
the trial may run the risk of being vitiated and contravening article 21.
In Rahul Sah v. State of Bihar, an
offshoot of Hussainara Khatoon case,
where the prisoner was found to be
in detention in prison for over 14
years after his acquittal, monetary
compensation was awarded for the
first time under writ jurisdiction of
the court.
In Kishore Singh v. State of Rajasthan
the court vehemently condemned
solitary confinement and putting
cross-bar fetters and declared that
flimsy grounds, such as behaving
insolently and in an uncivilised manner, tearing off the history ticket, etc
cannot be the foundation for solitary
confinement and cross bar fetters.
In Lingala v Public Prosecutor the
Supreme Court observed: "…A hospital setting and a humanitarian ethos
must pervade our prisons if the
retributive theory, which is but
vengeance in disguise, is to disappear
and deterrence as a punitive objective
gains success, not through the hardening practice of inhumanity inflicted
on prisoners but by reformation and
healing whereby the creative potential of the prisoner is unfolded. These
values have their roots in Article 19 of
the Constitution. By cruel treatment
within the cell you injure his psyche
and injury never improves. You make
him recidivist, embittered and ready
to battle with society on emerging
from the jail gates."
In Dharambir v State of U.P the
Supreme Court observed: "One of the
principal purposes of punitive deprivation of liberty, constitutionally
sanctioned, is decriminalisation of
the criminal and restoration of his
dignity, self-esteem and good citizenship; so that when the man emerges
from the forbidden gates he becomes
a socially useful individual. The long
prison terms do not humanise or
habilitate but debase and promote
recidivism". Therefore, the court
issued the following directions:
(a) Dispatching the two prisoners to
one of the open prisons in UP, if
they substantially fulfil the
required conditions;
(b) Being agriculturists by profession
they be put to use ;
(c) Keeping the prisoners in contact
with their family
(i) By allowing members of the family to visit them and
(ii) By permitting the prisoners under
guarded conditions at least once
a year, to visit their families and
(d) The prisoners to be released on
parole for two weeks, once a
year, which will be repeated
throughout their period of incarceration, provided their conduct,
while at large, is found to be satisfactory.
In Rama Murthy v State of
Karnataka the Supreme Court also
issued some important guidelines to
various authorities for the streamlining of prison reforms in India.
The Supreme Court has also
given directions from time to time in
various cases for the amelioration of
prison conditions. These are:
(1) Separation of young offenders so
that they are freed from exploitation by adults.
(2) Companionship: Subject to discipline and other security criteria,
the right of the society of fellow
men, parents and other family
members cannot be denied in the
light of Article 19 and its sweep.
(3) Legal consultancy: Lawyers nom-
COMBAT LAW MARCH-APRIL 2008
PRISONERS’ RIGHTS
inated by courts be given all facilities for interview, visits, and confidential communication with
prisoners, subject to discipline
and security considerations.
(4) Judicial surveillance: district magistrates and sessions judges shall
personally or through surrogates,
visit prisons in their jurisdiction
and afford effective opportunities
for ventilating legal grievances of
the prisoners.
(5) Standard minimum rules: The
state shall take steps to keep up to
the standard minimum rules for
treatment of prisoners recommended by the United Nations,
especially those relating to work
and wages, treatment with dignity, community contact and correctional strategy.
(6) Prison Act and Manual: The
Prisons Act needs modification
and the Prison Manual total overhaul. A correctional-cum-orientation course is necessary for the
prison staff for inculcating constitutional
values,
therapeutic
approaches and tension free management.
(7) Legal protection of prisoner's
rights: The court shall protect the
prisoner's right by its writ jurisdiction plus contempt power. To
make this jurisdiction viable, free
legal services to the prisoners
shall be promoted through recognised legal aid.
To make prisons habitable, the
Supreme Court, in the last 30 years,
has given at least a dozen notable
judgments -- all aimed to protect the
prisoners' right to life.
Right to life, during the expansionist development of rights
jurisprudence, has come to encompass a host of subsidiary rights like
children's right to education. The
most recent addition to it is the right
to privacy. The embarrassing episode
of actor Monica Bedi being secretly
filmed in Bhopal jail reflected only
one thing -- the authorities are illiterate on prison reforms, ushered in
through judicial fiats to protect the
right to life of prisoners and undertrials. If the telecast of secretly filmed
photographs has devastated Bedi's
modesty and dignity, tomorrow it
could happen to Sanjay Dutt and
Salman Khan, for there would be
many unscrupulous TV channels
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willing to pay a fortune to get them
filmed in jail to gain points in the
TRP rat race.
If in the process, the right to privacy gets decimated or a series of
apex court judgments get breached,
the TV channels would be the last
ones to let that bother them. The
apex court in Govind v State of MP in
1975, recognised right to privacy as
part of right to life and said that the
right to privacy could be restricted
only in public interest. But, if a law
violates such a right, then the onus is
on the state to show that the public
interest outweighed the person's
right to privacy.
The embarrassing
episode of actor
Monica Bedi being
secretly filmed in
Bhopal jail reflected
only one thing -- the
authorities are
illiterate on prison
reforms, ushered in
through judicial fiats
to protect the right to
life of prisoners and
undertrials
In Shri Rama Murthy v. State of
Karnataka, ruled on a host of rights
and privileges for prisoners and
undertrials. It said, "Constitutional
rights of prisoners shall have to be
interpreted in such a way that larger
public interest does not suffer while
trying to be soft and considerate
towards the prisoners." Outside India
too, judiciaries have held that gender
differences must matter because the
courts imbue women with more of a
sense of modesty than men.
In Torres v. Wisconsin department of
health and social service, the US Federal
Court had ruled that to protect female
prisoners' privacy, jail authorities
could provide them with appropriate
sleepwear and allow them to cover
their windows while dressing or
using the toilet. "Female prisoners are
afforded a higher expectation of privacy because they are after all women,
and therefore, are modest and vulnerable," the US court had said.
Back home, the SC took an
admirable decision to ask the I&B
ministry to issue a direction to TV
channels not to telecast Monica Bedi’s
pictures, taken illegally and exhibited
by a channel without caring to weigh
its potential to damage a woman's
modesty and sensitivity.
There are many more areas in
which the courts could potentially
intervene to secure for prisoners their
right to a dignified existence.
Employment opportunities should
be created for prisoners and specific
steps should be taken to look after
the health of jail inmates to prevent
incidents leading to controversies.
"Bringing the offenders back to the
mainstream of society is one of the
objectives of the prison term".
The talk about treatment and
training in prisons is not rhetoric; it
can prove to be real, if there is
enough zeal and determination. We
cannot afford to fail in this sphere, as
a sound prison system is a crying
need of our time in the backdrop of
the great increase in the numbers of
prisoners and that too of various
types and from different strata of
society. Efforts should be made to
improve our prison system by introducing new techniques of management and by educating the prison
staff with our constitutional obligations towards prisoners.
Though several steps have been
taken to improve the conditions of
prisons, still more needs to be done.
Entrusting the union government
with prison administration should
lead to effective centralisation of prisons and a jail manual could be drafted for uniform enforcement through
the country. The uniformity of standards thus created can be maintained
in all the states, by the creation of a
central statutory body to monitor the
prisons as well as for optimum allocation of resources.
— The writer is a second year student, National Law Institute
University, Bhopal, (MP)
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PRISONERS’ RIGHTS
Video linkage leaves
prisoners in cold
Lack of police escort to take undertrials to courts every fortnight as provided under law
has been replaced by video linkages between jails and courts in Andhra Pradesh
followed by other states. This grossly curtails requirements of law vis-à-vis rights of
undertrial since it robs him of counsel's presence and help, writes Dr Murali Karnam
who specialises in prison reforms
aw casts a duty upon the State
to physically produce the
accused before magistrate. This
is the fundamental first step required
for the accused to negotiate his freedom with judiciary. This negotiation
is already fraught with a number of
problems ranging from biases of judiciary to all dominant influences. We
have a criminal justice system that
criminalises the poverty and underprivileged status of citizen and does
not consider him as central to the
entire process of adjudication. It is in
continuation of this general attitude
towards the large number of underprivileged masses, the criminal justice system adopted a new technology in the form video linkage between
courts and prisons. This new technology with wider acceptance among
elite and middle class in the new millennium perfectly fits the scheme of
dispensing the accused altogether
from the scene of prosecution.
These days in Andhra Pradesh the
wide difference between the presumed innocent and proved offender
might have virtually been erased. The
judicial officer may murmur a date at
undertrial prisoner without raising
his head once in 15 days. Accused
may be able to see only magistrate
and his symbol of authority but not
the prosecutor and defence counsel to
explain the progress of the case
against him. Yet one does not hear the
occasional but sensational scenes in
the courts of throwing slippers on the
judicial magistrates by the enraged
undertrial prisoner. The criminal justice system achieved this magic
through the system of video linkage
between prisons and courts.
L
70
Under the system, the accused in
the prison is electronically produced
before the magistrate in the court.
The linkage widened the already
existing divide between the citizen
and criminal justice system. It was
introduced not with the objective of
delivering justice quickly and efficiently but effortless management of
the system in hibernation. It is not
surprising the technology was introduced first in Andhra Pradesh to
avoid the physical production of the
undertrial prisoners in the courts.
A petition
challenging the
amendment and
usage of video
linkage is before the
same judiciary which
presided over its
establishment. What
can be more ironical
Origin
The proposal to introduce the video
linkage between the prisons and
courts came from the prisons department in 2000. The High Court
expressed willingness to experiment
and extended the cooperation to the
government even before the amendment to section 167 (2b) of CrPC was
carried out. The first video conferenc-
ing between criminal courts of
Hyderabad and central prison of the
city held on October 16, 2000 but the
ordinance amending the section was
passed on December 6, 2000. Later
the linkage was extended to seven
more districts covering all the major
16 prisons with the courts. The system was demonstrated to the then
chief justice of India and chief justice
of Gujarat. It was explained that this
takes one minute to remand one person. Thus the judiciary had taken
active participation in establishing
the system. Judiciary was more than
willing to understand the difficulties
of the authorities to produce the
accused physically before the court,
which are beyond their control. The
'curable illegal' practice of continuous extension of judicial remand of
accused once in 15 day has been
made incurable practice with the
amendment to the section and blessings of the judiciary. A petition challenging the amendment and usage of
video linkage is before the same judiciary which presided over its establishment. What can be more ironical?
The government while introducing the system announced that it was
a pilot project. It was argued that the
system would reduce the overcrowding in the prisons, as undertrial prisoners would be 'produced' before
magistrates and that would give the
prisoners more access to bails. All
those concerned with the plight of
undertrial prisoners welcomed the
change and expected the promised
output. The five years of implementation of the system shows that the
state economises and manages the
system without really giving any
COMBAT LAW MARCH-APRIL 2008
PRISONERS’ RIGHTS
Discharge of undertrial prisoners before introduction of video linkage system
Year
No of UTs
beginning of
the year
No. UTs admitted
during the year
UTs discharged
in the year
No UTs at
the end of year
No UTs
escaped
1998-99
8702
147466
145634
10534
39
1999-00
10534
143807
144984
9357
38
2000-01
9357
140477
141641
8193
84
No. UTs Produced
Beforevideolinkage
After Introduction of the Video Linkage
2001-02
8193
149037
149090
8140
9601
34
2002-03
8124
156810
156995
7834
9887
43
2003-04
7834
154977
153709
9102
29875
43
2004-05
9102
155315
155259
9054
32807
45
2005-06
8978
156391
155360
9899
31778
52
relief to the citizen.
While the number of undertrial
prisoners processed through the
video linkage increased from 9,601 in
2001 to 31,778 in 2006, the number of
undertrials at the end of each year
has gone up. The figure clearly
proves that video conferencing
instead of reducing the overcrowding increases it. This is hardly surprising if one observes the use of the
technology. Every time the prisoner
is produced electronically before the
magistrate, the later is expected to
take into account the changes in the
circumstances of the cases and judiciously decide on granting or rejecting of the bail. But the system is just
used for routinely extending the
remand periods of the prisoners once
in 14 days. No legal counsel is representing the prisoners in the electronic
courtroom and magistrate receives
no briefings from the prosecution.
This repeats itself for years. Many
prisoners express their willingness to
admit guilt before the magistrates in
the video linkage if it would allow
them to quit the jail early. But they
feel denied the opportunity as video
conferencing is now used near exclusively
for
extending
dates.
Appearances sometimes take just a
few seconds. Legal defence seems to
be dispensed with completely. You
do not come across a single instance
where legal aid counsel were present
in video linkage rooms either to
oppose remand applications, let
alone argue for bail when remand
prisoners were brought before the
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camera. Judges do not inquire about
the absence of counsel nor seek to
know the condition of the prisoner. If
at all there are any benefits to the
undertrial it is very marginal. In the
first year of adoption of video system
only 258 of 9,601 prisoners produced
were released on personal bond
months after getting bails. Given the
number of UTs increasing year after
year in the past five years, there is no
reason to assume the ratio of beneficiaries to the total prisoners produced would have gone up now. As
a result there has been no real decline
in the number of UTs at the end of
five years of its introduction. The
non-production of UTs physically in
the courts is substantially reducing
their capacity to negotiate for bails
with the judiciary and arrange for
their sureties. Simply put, the videolinkage replaced the substance of
judicial hearing. The system is just
saving the time and expenditure of
criminal justice system. In the whole
process the ends of justice vis-à-vis
prisoners are getting defeated.
The number of hearings for a case
will drastically come down is another argument floated in support of the
new system. The criminal procedure
code amended only allows the extension of remand of the accused but not
the trial. While the media went on
reporting unintended purposes of
the video linkage system, the government remained silent. Another argument floated was that the usage of
technology will facilitate the digitisation of court records. Nothing of that
sort was ever intended to happen at
all, let alone putting it to practice. As
usual after every production, the
undertrial is clueless about its result.
In defence of the new system it
was argued that the problem of security and prisoners' escapes during
escorting can be overcome. The figures show that number of escapes
compared with total number of prisoners is always negligible and this
argument is only an appeal to baseless threat perception of masses.
Finally the system is justified on the
ground it is less expensive. The government of Andhra Pradesh pays 2.5
crores every year to M/S Stanpower
Technologies for the maintenance of
the system in 14 prisons and 16
courts. While calculating the cost of
maintenance of the technology,
video linkage not only utterly failed
to give any relief to undertrial prisoners but also completely put a lid on
the
ventilation
of
prisoners'
grievances in the courts. Since prison
officials are present in the prison
video-linkage rooms, the prison
grievances, especially of long staying
prisoners, are not reaching the magistrates. A large number of unorganised undertrial prisoners means, a
fertile ground for malpractices and
mismanagement by personnel resulting in horrible living conditions. As
long as the security and economic
management rather than the concerns of justice governs the functioning of criminal justice system, the
horrors of human rights violations in
the prisons will continue.
„
71
PRISONERS’ RIGHTS
Women prisoners'
rights
The wide gap between theory and practice vis-à-vis women prisoner's rights leaves
much to be desired on the part of the government and prison administration. Yet the
wont is to applaud certain Supreme Court orders in this regard and do nothing about it,
writes Grace Pelly
he prison system is a predominantly male-centric model, concerned with security and containment of threat. Little thought has
historically been given to the genderspecific needs of the female prison
population. Today, approximately
four percent of the prison population
in India is female and there are just
14 women-only prisons. This comparatively small female prison population has led to the needs of female
prisoners often being neglected
despite ongoing calls for large-scale
reforms of the treatment of women
prisoners. This article will highlight
the gender-specific needs and, equally
importantly, the gender-specific
rights of women prisoners set out in
international and domestic documents. The article will also consider
the Supreme Court's more recent
examination of the subject in RD
Upadhyay v State of Andhra Pradesh
and Others.
Exercising significant judicial
activism, the court directed that
widespread reforms be carried out
in the field of women prisoners'
right and ordered that these
reforms be implemented within
three months. Like the Justice VR
Krishna Iyer committee report in
1979, the report by the All India
committee on jail reforms in 1983
and the Model Prison Manual of
2003 before it, Upadhyay will have
little practical impact unless the
Indian government takes positive
steps to entrench the recommendations in legislation. For far too
long, prisoners' rights and women
prisoners' rights in particular, continue to exhibit the unacceptable
gulf between successful constitutional rights theory and the success-
T
72
COMBAT LAW MARCH-APRIL 2008
PRISONERS’ RIGHTS
ful realisation of these rights in
practice.
Women prisoners’ needs
The majority of women prisoners in
India are housed in women-only
wings in mixed prisons and
women-only prisons and are supervised by women prison officers.
Although this may indicate that
gender main-streaming is alive and
well in the prison system, this is not
evident in most aspects of prison
life. One example of disturbing gender insensitivity is the case of
Malkangiri prison in Orissa where
the only bathroom has neither a
roof nor a door. As a result, the
female prisoners are exposed to
stares from the prison sentries and
afforded no privacy.
The needs of women prisoners
often differ from their male counterparts. Women need gender-specific
facilities for healthcare, to help them
in childbirth, to care for their children in prison, to receive counseling
to guard against the possibility of
rape and sexual assault and to maintain contact with their dependants
outside the prison. This is reflected in
the international standards on the
treatment of prisoners and detainees.
The Body of Principles for the
Protection of All Persons under Any
Form of Detention or Imprisonment
explicitly recognises the need for specific measures to be adopted to protect the rights and special status of
women,
particularly
pregnant
women and nursing mothers. In the
domestic context, the specific needs
of women are recognised by the
Indian Supreme Court and are set
out exhaustively in the Model Prison
Manual.
Health
The majority of women in prisons are
amongst the poorest members of
society and many arrive in prison
with a range of prior-existing physical and mental health problems.
International best practices state that
the medical services provided for
women prisoners should be of the
same quality and standard as those
available to the outside (free) community.
These services should
include HIV/AIDS testing, breast and
cervical screening, family planning
and sexual health services. The
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Model Prison Manual states that:
"Only lady doctors shall look after
the medical care of women prisoners
during their stay in prison". In practice, however, the health facilities
available to women in prisons are illequipped and lack sufficient
resources to adequately test, diagnose and treat inmates. On visiting a
number of jails in Orissa, a fact-finding team of the committee on violence against women expressed concern over the poor hygiene conditions, lack of adequate medical facilities and overcrowding they witnessed in female prisons. In one
prison, which housed 200 women,
the committee noted that there was
no doctor and the only medical facil-
portionately affected
by mental health
problems, with higher
levels of depression,
anxiety, phobia,
neuroses, selfmutilation and suicide
compared to both the
general population and
the male prison
population
ity was a single pharmacist.
Furthermore, the limit on medical
expenditure for the prison was just
Rs. 100 per day. In March 2007
women prisoners in Orissa complained that they are not, and have
never been, provided with sanitary
pads. The oversight of this basic
need highlights the long-term practical neglect of women's issues in the
prison context.
In addition to the physical medical attention required by women, the
female prison population is disproportionately affected by mental
health problems, with higher levels
of depression, anxiety, phobias, neuroses, self-mutilation and suicide
compared to both the general population and the male prison population. This is due to the fact that a
large number of women prisoners
have been victims of physical, sexual,
mental and domestic abuse and are
often traumatised as a result. The
Model Prison Manual states that:
"Female prisoners needing treatment
for mental diseases shall not be
admitted to prison. They shall be
kept in separate enclosures for
female patients at the mental health
hospital, or in other mental health
facilities, under the supervision of a
lady medical officer". It goes on to
recommend that: "Female offenders
suffering from mental disorders, anxiety (and) drug addiction… should
get proper medical treatment and
psychotherapy". In practice, however, women's prisons lack the
resources to implement this best
standard and mental health problems remain largely undiagnosed
and untreated.
Pregnant women
Both the international standards
and the Model Prison Manual
require that pregnant women in
prison be provided with special
accommodation for all necessary
pre-natal and post-natal care and
treatment.
The Model Prison
Manual also details the additional
nutritional requirements of pregnant and nursing women: "During
pregnancy and lactation, a woman
needs more protein and minerals
than otherwise. The extra protein
can be obtained by substituting a
part of the cereal portion of the diet
with more milk, fish, meat and eggs,
and in the case of vegetarians by
concentrating more on milk and
milk products. This would also
ensure the necessary additional
supply of minerals. Pregnant and
nursing women need about 3100
calories every day". A study carried
out by the national institute of criminology and forensic sciences found
that in practice women are not
receiving adequate medical attention during and after their pregnancies and nor are they receiving additional food during their pregnancy.
Again, it is clear that whilst the the73
PRISONERS’ RIGHTS
oretical standards afforded to
women prisoners are sophisticated
in their detail, they have had little, if
any practical benefit.
There are, however, occasional
examples of gender sensitive programmes being implemented for
women prisoners. For example, in
Karnataka,
Maharashtra
and
Rajasthan prisons have special diets
for lactating mothers and babies.
Whilst these initiatives are clearly
commendable, they remain few and
far between. It is unacceptable that
despite the academic and judicial
activism on the issue, most women
prisoners continue to lack adequate
pre and post-natal care.
Visiting rights
Women prisoners suffer a more
severe range of social exclusion
problems than men on leaving
prison and it is recognised that
maintaining close contact with
friends and families makes their
rehabilitation and re-integration
into the community easier. In India,
the few penal institutions catering
for women mean that many women
are imprisoned long distances from
their families. This can have devastating effects on the prisoner and on
their family. It is important for
women prisoners to maintain close
contact with their families outside,
particularly important for women
who have children who are too old
to live with them in prison. The
Model Prison Manual recognises
this gender-specific need and provides for women to have increased
numbers of visits from friends and
families, for illiterate women to be
given special help in writing letters
and for there to be no limit on the
number of letters received by
women prisoners. The Manual also
sets out special measures to be
taken to encourage visitors to the
prisoners such as the creation of a
special waiting room.
Childcare in prison
The findings of a report by the national institute of criminology and forensic sciences in 2000 showed that children who lived with their mothers in
prisons were growing up without
adequate nutrition, medical care and
few educational opportunities. The
Indian council of legal aid and advice
74
filed public interest litigation in the
Supreme Court, asking that state governments formulate proper guidelines for the protection and welfare of
children of women prisoners.
The case of RD Upadhyay v State of
Andhra Pradesh and Others was decided in April 2006 . In this case, the
Supreme Court recognised, and
examined in detail the gender-specific
needs and rights of women prisoners.
The Court examined the plight of children who grow up in prison with
their mothers and set down detailed
minimum standards to ensure that the
mother and child receive food, shelter,
medical care, clothing, education and
recreational facilities as a matter of
right. Relying on both fundamental
rights in the Constitution and directive principles the Supreme Court
ordered that a number of standards be
adopted in prisons throughout the
country.
„ The child of female prisoners living in the jails shall be given proper education and recreational
opportunities. While their mothers are at work in jail, the children
shall be kept in crèches under the
charge of a female warden.
„ Women prisoners with children
should not be kept in sub-jails,
unless proper facilities can be
ensured which would make for a
conducive environment for proper biological, psychological and
social growth.
The Supreme Court directed that
all relevant laws, rules and regulations
were to be amended within three
months in order to comply with the
directions. The Court also ordered that
positive steps be taken to implement
the new provisions in practice. The
Upadhyay judgment further cemented
the notion of women prisoners' rights
as rights different from those of the
general prison population.
Conclusion
The Court set out the following
special provisions for women prisoners and their children:
„ For pregnant women all basic
facilities of pre-natal care and
post-natal care shall be arranged
for both mother and the child.
„ Births in prison shall be registered
in the local birth registration office.
The fact that the child has been
born in the prison shall not be
recorded on the birth certificate.
„ Female prisoners are allowed to
keep their children with them
until they reach six years of age.
After this period they are to be
taken to a suitable institution run
by the Social Welfare Department.
„ Sleeping facilities that are provided to the mother and the child
should be adequate, clean and
hygienic.
In order for women prisoners to
attain the full range of rights open to
them, the Government of India must
take positive steps to implement
them in practice. As we have seen,
there are isolated examples of prison
authorities granting specific rights
to women prisoners but these are
limited in number. Whilst the judicial activism of the Supreme Court
in the Upadhyay case is to be
applauded, the on-going tension
between a rights-based theory and
the practical realisation of these
rights is unmistakable. It is a
depressing prospect that today,
advocates of prison reform still echo
the sentiments of Justice VR Krishna
Iyer expressed thirty years ago -- "I
hope that prison reform will receive
prompt attention as the higher political echelons in the country know
the need and we may not be called
upon to pronounce on the inalienable minima of human rights that
our constitutional order holds dear".
Through all these years, the
Supreme Court has shown itself to
be an eager proponent of women's
rights. Yet when it comes to the present context the lack of their actual
application rob them of meaning
and substance vis-à-vis those they
seek to protect.
„
COMBAT LAW MARCH-APRIL 2008
PRISONERS’ RIGHTS
Justice Express leaves
many stranded
Haste goes waste. This was the least of all to be expected from fast track courts set up
during NDA era. Yet instances of miscarriage of justice on this fast lane has not deterred
UPA higher-ups to continue with their predecessors favourite toy, writes human rights
lawyer Vijay Hiremath
peedy trial is a fundamental
right of all accused persons.
This has clearly been laid down
by Supreme Court in Husseinara
Khatoon case. Often various High
Courts too have reaffirmed this
through their orders, or observations
made in several cases. Yet we have
often read and hear stories how the
undertrial prisoners languish in
prison without undergoing trial and
many times this surpasses the maximum sentence prescribed for offence
allegedly committed by then. In the
early part of this decade the last
NDA government came up with a
novel idea of 'Fast Track Courts'. The
idea was to speed up justice delivery
system and clear the backlog of cases
pending in different courts. The project was supposed to be fully funded
by the central government.
'Justice delayed is justice denied'
is an old yet important maxim. And,
thus, justice should not be so delayed
because it is as good as denied to the
seeker of justice. Yet care is called for
because quest for speed should not
lead to what could turn out to be a
case of 'haste is waste'.
The fast track courts system was
initially brought mainly for the criminal cases at the session's court level
but now has been extended to the
civil cases as well. It was another
knee jerk reaction of government
towards the problem of the prolonged pending cases. Without looking into the root cause of the pending
cases and the over crowding of prisons the government introduced the
fast track courts across the country.
S
Concerns
Some of the concerns of the working
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of the fast track courts and whether
they in reality serve the purpose of
speedier justice require to be looked
into. One of the major problems with
the system of the fast track courts was
that the number of judges was not
increased. The existing judges were
shifted to the fast track courts or some
were promoted to the level of sessions judge to fill in the posts created
for the fast track courts. This created a
shortage of judges and the magistrates in the regular courts and actually increased pendency of cases in the
regular courts. The 120th law com-
'Justice delayed is
justice denied' is an
old yet important
maxim. And, thus,
justice should not be
so delayed because
it is as good as
denied to the seeker
of justice
mission has recommended five fold
increase in the number of judges in all
courts across the country to cater to
the needs of present population.
Significantly, the number of judges in
High Courts and Supreme Court has
not been increased. Thus even if the
trial gets over in the lower court the
pendency time increases when it
comes to appeal in the higher courts.
Some judges were given extension even after their retirement. It is
unfair to expect of judges close to
retirement, or who get extension, or
who worked at their own speed
throughout their career to work at a
breakneck speed.
Though the UPA government
when came to power had made comments about scrapping the fast track
court system, but has continued to
support them. The lawmakers and
the bureaucrats need to understand
the judges are human beings and not
machines that they suddenly
increase the speed of production also
the justice delivery system is not a
production unit where the pre set targets have to be met. A court needs to
understand the behaviour of the witnesses, time to go through the evidence in the case and decide carefully over the matter. So time constraints may lead to miscarriage of
justice. Justice should be done and
not just should seem to be done.
Economic considerations
Somewhere the consideration of the
government was completely misplaced. It was not so much of speedy
justice but to save the money being
spent on undertrial prisoners. The
eleventh finance commission (EFC),
which has provided a grant of Rs
502.90 crores for the creation of additional courts, specifically recommended disposal of long-pending cases.
According to NC Jain, member, EFC,
the scheme will help make enormous
savings in terms of the expenses
incurred over the maintenance of
undertrials, who numbered 1,88,241
as on December 31, 1998. Jain estimates that the average cost per undertrial a day is Rs 55, covering food,
medicine and clothing, with extra pro75
PRISONERS’ RIGHTS
vision for sanitation and water, correctional programmes, and transportation to the courts and back. The
annual expenditure on each undertrial thus comes to about Rs 20,000.
The maintenance of the 1.2 lakh
undertrials in prisons across the
country costs the government Rs 240
crores a year. A substantial part of
this amount could be saved if cases
against them were expeditiously
tried and disposed of. The EFC has
estimated that the annual recurring
expenditure in respect of fast track
sessions courts at the rate of five a
district would be approximately Rs
87 crores. The net saving for the government would, therefore, be Rs 153
crores a year.1
Thus to save the money the government would not care if the justice
was actually being denied. It is supposed of the fast track court to dispose of nearly 15 sessions' cases in a
month. If we consider that in a month
the court works for 24 days (not considering the public holidays on weekdays), the court has to nearly decide
the fate of unedrtrials prisoners
involved in serious offences and who
may end up behind bars for years or
even go to the gallows, at extremely
high speed and under immense pressure of meeting the target. The speed
really puts the justice at stake.
Results
One of the glaring blunders we have
seen committed by the fast track
court and which has been acknowledged by the Supreme Court also is
the fast track court in Vadodara
which initially decided the Best
Bakery case. The National Human
Rights Commission had to approach
the Supreme Court against the miscarriage of justice.
In the case of Digambar Majkure
decided in the Bombay High Court in
September 2006 the court came down
heavily on the functioning of the fast
track courts. The court held: “But, in
our considered opinion, it is necessary to
write a detailed order in this regard as a
matter of guidance to the Fast Track
Courts established by the Central
Government. We are sitting on Criminal
Appellate Jurisdiction for last about two
months and even earlier thereto. The
results given by Fast Track Courts are no
doubt laudatory and praiseworthy. But it
appears that in the zeal to decide the trial
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76
State-w
wise number of fast
track courts in the country 2
Sl. Name of the
No. state
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
Andhra Pradesh
Arunachal Pradesh
Assam
Bihar
Chhattisgarh
Goa
Gujarat
Haryana
Himachal Pradesh
Jammu & Kashmir
Jharkhand
Karnataka
Kerala
Madhya Pradesh
Maharashtra
Manipur
Meghalaya
Mizoram
Nagaland
Orissa
Punjab
Rajasthan
Sikkim
Tamil Nadu
Tripura
Uttarakhand
Uttar Pradesh
West Bengal
Total
No.of FTCs
proposed
by EFC
86
3
20
150
31
5
166
16
9
89
93
31
66
187
2
3
3
2
41
18
83
49
3
45
242
119
1562
fast, statutory or constitutional provisions are also given a go bye by learned
Judges like the one who passed this
impugned order. We are certainly of the
view that though the Fast Track Courts
should act fast and justice should be
delivered as quickly as possible, decision
of a criminal trial cannot be speedily
given at the cost of justice. To deny legal
aid, though statutorily required to be provided and constitutionally mandated by
the Constitution, would certainly
infringe the right guaranteed to every citizen by Article 21 of the Constitution of
India. Such trampling of statutory and
constitutional rights should not take
place at the hands of those who are
responsible for administration of justice.
We sincerely hope that while acting as
Fast Track Courts or as part of administration of criminal justice, due urgency is
achieved, but in so delivering justice at a
fast pace, statutory provisions should not
be trampled. The case in hand is an example of this type. The incident occurred on
28th May 2001 and the trial was over by
26th November 2001 i.e. exactly in a span
of six months. Had the learned Judge
granted adequate time and legal aid to the
accused, may be the trial would have been
over by the end of year 2001, whatever the
result. Presently the accused is languishing in jail for last five years with a blatant
illegality committed in his trial. In the
event of the fresh trial ending in acquittal
of the accused, valuable five years of the
man would have been lost due to a mistake which could well have been avoided
by a Judge of the experience and knowledge of the Presiding Officer.”3
Surendra Nath, the advisor to the
planning commission, while lauding
the role of the fast track courts in the
country since their inception has also
agreed that the conviction rate has
gone up. Thus, the question arises
whether these courts have been set up
with the sole intention of increasing
the conviction rate in the country.
Conclusion
All recent efforts to bring in reforms
in the criminal justice system actually put the justice at stake. The
Malimath committee report wanted
to overhaul the entire criminal justice
system and also change the basic
time tested principles of criminal
jurisprudence. The most recent committee appointed by the UPA government to bring in a policy paper on the
criminal justice system in the country
has member who were part of the
Malimath committee and are still
talking on the similar lines as the
Malimath committee report. The proposed police reforms if implemented
fully may turn the police in this country into a mafia without any control
from the government. Similar is the
problem with the fast track courts. If
the government is really concerned
for speedy justice to victims and the
accused the change has to come from
within that forms the root cause of
the problem. The fast track court is
not only a knee jerk reaction to a
huge problem of years but it's also a
cosmetic solution which will never
cure the ailments of the system.
Endnotes
1. Frontline, July 2001
2. mah.gov.nic.in
3. MANU/MH/0628/2006
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PRISONERS’ RIGHTS
Victims of Circumstances
While responding to a PIL, the Supreme Court delivered a set of guidelines to protect the
rights of women prisoners and their children in jail and asked the Centre and state
governments to incorporate these directions says Debashis Banerjee
iberty, Equality and Fraternity
— the clarion call of the French
Revolution, one of the most significant events in world history, is the
guiding principle of the democratic
and human rights culture. The
Revolution was the first to talk about
State responsibility to citizens and
rights of people vis-a-vis the State.
The individual became the centre of
things and the role of the State was to
facilitate or ensure that those rights
were not infringed on and also to
ensure that people get their rights,
that is, it became a welfare state. In
the Indian context too, the
Constitution has enlisted the rights
— Liberty, Equality and Fraternity —
for Indian citizens. It goes without
saying that any civil notion would
ensure that if its people misused their
rights they would be justly punished.
The jails therefore play a vital role in
maintaining law and order throughout the land. They constrain the
guilty and unlawful while providing
new ground for reformation.
A criminal is often a victim of his
instincts and circumstances. He may
resort to crime in a moment of weakness, helplessness or desperation as
the case may be. His vulnerability to
crime notwithstanding, he has the
right to begin afresh. Rehabilitation
back into the family and community
is possible if there are enabling factors within the prison walls.
However, if the convict's basic right
to living with dignity is infringed
upon, then this change is hardly possible. A visit to any of the Indian jails
is a telling testimony to this fact.
ditions and often rear their children
in jail. The children born in these jails
are the worst sufferers. Innocent of
crime, they are doomed to a life tainted with the sin of their parents. They
are often forced away from their
mothers and never see their father
and live their lives shrouded in darkness. Devoid of proper care, an
appropriate lifestyle and no education — they are caught in a web of
uncertainty and denied the basic
freedoms that the constitution provides to the children of this country.
Nearly all Indian jails have children where women are kept. These
children are permitted to be with
their mothers from two to six years as
per the provisions in the state prison
manuals. The fact remains that even
children who have completed six
years are still inside as they do not
have a place to stay outside the prisons. According to various affidavits
submitted by the states before the
apex court, there are at present 6496
under trial women with 1053 children and 1873 convicted women with
206 children living in various prisons
in the country. It is interesting to note
that despite such a shocking figure,
there are hardly any special provisions in the prison manuals for these
children who are in jail not for any
offence committed, but because their
mothers are in jail. The lack of specific provisions in prison manuals
leaves them dependent on the whims
of the jailors, who are ill equipped in
dealing with their basic requirements
such as nutrition, education and
health.
Prison conditions
All Children have equal rights
Women prisoners, whether undertrials or convicts, require special provisions, but their lives in jail are nightmarish. Separated from their families
while they wait for justice, which is
often denied to them, these women
live in overcrowded unsanitary con-
The best interest of the child has
always been regarded as a primary
consideration in the Constitution of
India. The State under Article 15(3) is
at liberty to make special provisions
for women and children. Free and
compulsory education to all children
L
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of the age of six to fourteen years has
been included by the 86th
Amendment as a Fundamental Right
in Article 21A. A bundle of statutes
have been brought out by the State
for ensuring overall development for
children. Further, a national charter
for children 2003 has been adopted to
reiterate the commitment of the government to the cause of the children
in order to see that no child remains
hungry, illiterate or sick. Apart from
the local laws, in December 1992,
India ratified the United Nation
Convention on the Rights of the
Child (UNCRC) to reiterate its commitment to children. Its objective is to
give every child the right to survival
and development in a healthy and
congenial environment. Regrettably,
the living conditions of children
inside prisons have hardly ever been
addressed.
The Supreme Court steps in
Prisons are daunting places even for
adults. They are horrifying for children. Prison manuals do not contain
any special provisions for children
of women prisoners (whether
undertrials or convicts) who constitute a particularly vulnerable category. Unlike other inmates, they are
not delinquents but are there in jail
because they are either born in jail,
or too young to stay away from their
mothers, or have no place to go outside the prison. In response to a dire
need to give succour to these children, the Supreme Court while
responding to a public interest litigation dealing with under trial prisoners, carried out an elaborate evaluation of the situation and delivered
comprehensive directions with
regard to these children.
In its judgement delivered on 13
April 2006 in RD Upadhyay vs State
of Andhra Pradesh & Ors, after careful evaluation of the prevailing situation experienced by children inside
77
PRISONERS’ RIGHTS
the Indian jails, re-asserted the fact
that the jail environment is not congenial for development of children.
It took into consideration all the
statutes governing the welfare of
children including national policies
and also referred to the UNCRC to
which India is bound. The court also
considered a study on children of
women prisoners in India, carried
out by the national institute of criminology and forensic sciences and a
report by Tata institute of social sciences, which put forward five
grounds as the basis for suggestions
on the provision of facilities for
minors accompanying their mothers
in prison.
Taking the reports into consideration the apex court issued directions
and guidelines to ensure that certain
minimum standards are observed
with respect to these children.
A child shall not be treated as an
undertrial or a convict while in jail
with his or her mother. Such a
child is entitled to food, shelter,
medical care, clothing, education
and recreational facilities as a matter of right.
When a woman prisoner is suspected to be pregnant at the time
of her admission or at any time
thereafter, the lady medical officer
(LMO) shall report to the superintendent. Before sending her to jail,
the concerned authorities must
ensure that the jail in question has
basic minimum facilities for child
delivery as well as for providing
pre-natal and post-natal care for
both mother and child.
Immediate arrangement shall be
made to give the prisoner a gynaecological examination at the
female wing of the district government hospital for ascertaining the
state of her health, pregnancy,
duration of pregnancy, probable
date of delivery, and so on. After
ascertaining these particulars, a
report shall be sent to the inspector general of prisons, stating the
date of admission, term of sentence, date of release and duration
of pregnancy.
Where possible and provided she
has a suitable option, arrangements for temporary release or
parole (or suspended sentence in
case of minor and casual offender)
78
should be made to enable an
expectant prisoner to deliver outside the prison. Only exceptional
cases constituting high security
risk or cases of equivalent grave
descriptions can be denied this
facility.
Births in prison, when they occur,
shall be registered in the local
birth registration office, but the
fact that the child was born in
prison shall not be recorded in the
birth certificate. Only the address
of the locality shall be mentioned.
As far as circumstances permit, all
A criminal is often a
victim of his instincts
and circumstances.
He may resort to
crime in a moment
of weakness,
helplessness or
desperation as the
case may be. His
vulnerability to crime
notwithstanding, he
has the right to
begin afresh.
Rehabilitation back
into the family and
community is
possible if there are
enabling factors
within the prison
walls
facilities for the naming rites of
children born in prison shall be
extended.
Female prisoners shall be allowed
to keep their children with them
in jail till they are six years old on
the attainment of which, the child
shall be handed over to a suitable
surrogate as per the wishes of the
mother or sent to a suitable institution run by the social welfare
department. As far as possible, the
child shall not be transferred to an
institution outside the town or
city where the prison is located in
order to minimise undue hardships on both mother and child
due to physical distance. Such
children shall be kept in protective custody until their mother is
released or the child attains such
age as to earn his or her own
livelihood.
Children kept under protective
custody in a government home
shall be allowed to meet the mother at least once a week. The director, social welfare department,
shall ensure that such children are
brought to the prison for this purpose on the date fixed by the
superintendent.
When a female prisoner dies and
leaves behind a child, the superintendent shall inform the district
magistrate (DM) concerned and
he shall arrange for the proper
care of the child. Should the concerned relative(s) be unwilling to
support the child, the DM shall
either place the child in an
approved institution run by the
state or hand over the child to foster care.
The state or union territory (UT)
shall lay down the scales for adequate clothing suited to the local
climate, dietary scales for children
keeping in view their calorific
requirements as per medical
norms.
A permanent arrangement is needed in all jails to provide separate
food with ingredients to take care
of the nutritional needs of children who are regular residents.
Clean drinking water must be
provided to the children. Separate
and appropriate utensils should
be provided to each mother to
feed her child. Sleeping facilities
provided to the mother and child
should be adequate, clean and
hygienic.
Children shall be regularly examined by the LMO to monitor their
physical growth and shall also
receive
timely
vaccination.
Vaccination charts regarding each
child shall be kept in the records.
COMBAT LAW MARCH-APRIL 2008
PRISONERS’ RIGHTS
Extra clothing, diet and so on may
also be provided on the recommendation of the LMO.
In the event of a mother falling ill,
alternative arrangements for looking after her children falling
under her care must be made by
the jail staff.
Children of prisoners shall have
the right of visitation.
The superintendent shall be
empowered in special cases and
where circumstances warrant
admitting children of women prisoners to prison without court
orders provided such children are
below six years of age.
The children shall be given proper
education and recreational opportunities. While their mothers are
at work in jail, they shall be kept
in a crèche or a nursery under the
charge of a matron or a female
warder. Children below three
years shall be allowed in the
crèche and those between three
and six years shall be looked after
in the nursery. This facility will
also be extended to children of
warders and other female prison
staff. The prison authorities shall
preferably run the said crèche and
nursery outside the prison
premises.
Women with small children often
are incarcerated in sub-jails ill
equipped to keep small children.
They should not be kept in jails
where proper facilities for the biological, psychological and social
growth cannot be provided.
Living in crowded barracks
amidst women convicts, under trials, and seasoned offenders is
harmful for the development of
their personality.
A dietary scale for a balanced
diet for institutionalised infants and
children prepared by Dr AM
Dwarkadas Motiwala, and submitted by Sanjay Parikh has also been
incorporated in the judgement. It
recommends exclusive breastfeeding based on the baby's demand. If
the mother cannot feed the baby,
undiluted fresh milk can be given to
the baby. It is emphasized that "dilution is not recommended; especially
for low socio-economic groups who
are illiterate and ignorant. Their
children are already malnourished
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and are prone to gastroenteritis and
other infections due to poor living
conditions and unhygienic food
habits. Also, the drinking water may
not be safe since its source is questionable. Over dilution will provide
more water than milk to the child
and hence lead to malnutrition and
infections. This in turn will lead to
growth retardation and developmental delay both physically and
mentally." It is noted that since an
average Indian mother produces
approximately 600 to 800 ml. milk
per day (depending on her own
nutritional state), the child should
be provided at least 600 ml. of undiluted fresh milk over 24 hours if the
breast milk is not available.
The report also refers to the
"Dietary Guidelines for Indians - A
Manual," published in 1998 by the
national institute of nutrition, council of medical research, Hyderabad,
for a balanced diet for infants and
children ranging from six months to
six years of age. It recommends the
following portions for children from
the ages of six to twelve months, one
to three years and four to six years,
respectively:
Cereals/Millets - 60-120 and 150210 grams respectively;
Pulses - 30 and 45 grams respectively;
Milk - 500 ml (unless breast fed, in
which case 200 ml);
Roots and Tubers - 50 and 100
grams respectively;
Green Leafy Vegetables - 50 and 50
grams
respectively;
Other
Vegetables - 50 and 50 grams
respectively;
Fruits - 100 grams;
Sugar - 25 and 30 grams respectively;
Fats/Oils (Visible) - 20 and 25
grams respectively.
One portion of pulse may be
exchanged with one portion (50
grams) of egg, meat, chicken or fish.
It is essential that the above food
groups be provided in the portions
mentioned in order to ensure that
both macronutrients and micronutrients are available to the child in adequate quantities.
The SC has also directed the
amendment of jail manuals and
other relevant rules, regulations,
instructions, within three months so
as to comply with the above directions. If in some jails, better facilities
are being provided, the same shall
continue. It has ordered the courts
dealing with cases of women prisoners whose children are in prison
with their mothers to be cleared
expeditiously and has directed the
states to implement schemes and
laws relating to welfare and development of such children in letter
and spirit. State legislatures may
consider passing necessary legislations, wherever necessary, keeping
the judgment in mind.
Conclusion
The biggest hurdle to this judgment
is its implementation as the earlier
track record shows. At best it can
evolve mechanisms towards implementation. The court, while sending
copies of the judgment to the
Centre, state governments, UTs and
High Courts, has also given them
four months to file compliance
reports stating steps taken by them.
It has also asked the state legal services authorities to take necessary
measures to periodically inspect
jails to see that these directions are
implemented thereby making the
state legal services authorities
accountable, and has in parallel
opened a gateway whereby events
of
non-implementation
could
be brought to the notice of the
High Courts.
Keeping in mind that the court
does not have an independent
machinery to implement its judgments and also taking into consideration the fate of earlier socially beneficial judgements delivered by it, the
onus remains on the executing
authority to ensure effective and full
implementation of these guidelines
along with the existing statutes. It is
a travesty of justice that despite a
number of excellent court verdict
directions prison conditions remain
at the mercy of an apathetic executive and legislature. A systematic and
humane approach will go a long way
to bring the much needed reforms
and a gleam of hope for these innocent children shackled due to no
fault of their own.
—The writer is an advocate and
child rights activist based at Kolkata
79
JUVENILES
Juvenile legislation
From the early 1920s, when states
enacted their Children Acts, legislation provided for juvenile offenders
and adult offenders to be treated differently. Juvenile legislation has
always focused on reformation and
rehabilitation instead of penalising
the child. It is not the past misdemeanors of the child, but his future
welfare that concerns the juvenile justice system. To ensure this philosophy it was felt that instead of placing
young offenders in police lock-up or
jail, it was necessary to place them in
a specialised setting that would optimise his development. Furthermore,
there is a danger of the child being
unduly influenced by hardened
criminals and being abused at their
hands, if allowed to co-mingle. Most
importantly the harsh treatment
meted out to inmates in police lockups and jails would not be treatment
commensurate to the juvenile's age.
The embargo on incarcerating
juveniles in jail has, as aforementioned, been in the law books since
the Children Acts. Separate detention
facilities were established for placement of child offenders. For example,
under the Bombay Children Act 1948,
children found to have committed an
offence were placed in classifying
centres , and those pending inquiry
were detained in approved centres.
The Children Act 1960, applicable in
Union Territories, provided for the
establishment and maintenance of
Juveniles
O
and jails
n November 14, 2003, Umesh
was convicted for life by the
Sessions Court Mumbai. He
was arrested for murder in April
1999. The offence had been committed a few days prior to the arrest. On
April 12, 2004, the Bombay High
Court declared Umesh a juvenile and
released him forthwith. It took the
criminal justice system five years to
recognise Umesh's juvenility as he
languished in prison, both as an
undertrial and convict, in absolute
violation of the law. The medical
examination report of Sassoon
General Hospital, Pune showed
Umesh to have been at the highest 15
years and at the lowest 13 years on
the date of offence. The apathy of the
system is reflected in the fact that all
the functionaries, that is, the police,
80
Despite legislation to protect juvenile prisoners, children
continue to languish in prisons thanks to erring officials,
writes Maharukh Adenwalla
the magistrate, the jailor and the sessions judge, failed to recognise and
treat Umesh as a juvenile as is mandated under the law. Umesh is just
one of the numerous instances of a
juvenile being denied the protection
of the juvenile legislation and being
kept in jail.
Observation Homes "for the temporary reception of children during the
pendency of any inquiry regarding
them under this Act" and for special
schools to be opened "for the reception of delinquent children under this
Act". A "delinquent child" under the
Children Act is a child who has been
COMBAT LAW MARCH-APRIL 2008
JUVENILES
found to have committed an offence.
The Juvenile Justice Act 1986 was
passed to bring about uniformity on
this subject throughout the country.
The legislative intent as stated in the
statement of objects and reasons was,
inter alia, "to lay down a uniform
legal framework for juvenile justice
in the country so as to ensure that no
child under any circumstances is
lodged in jail or police lock-up."
Under the 1986 Act, observation
homes were to be established and
maintained for "the temporary reception of juveniles during the pendency
of any inquiry regarding them under
this Act", and special homes for the
reception of delinquent juveniles.
This Act specifically states that no
delinquent juvenile shall be sentenced to imprisonment. The Juvenile
Justice (Care and Protection of
Children) Act, 2000 has similar provisions as the 1986 Act with regards to
detention of juveniles in conflict with
law in observation homes and special homes.
The international community has
also acknowledged the importance of
keeping juvenile offenders separate
from adult offenders. The United
Nations Standard Minimum Rules
for the Administration of Juvenile
Justice has in Part Five dealt with
"institutional treatment", and under
clause 26.3 states, "Juveniles in institutions shall be kept separate from
adults and shall be detained in a separate institution or in a separate part
of an institution also holding adults."
There is an identical provision under
these Rules for juveniles under detention pending trial. The underlying
principle being that segregation of
juveniles and adult offenders is necessary as otherwise there is a danger
of juveniles getting "criminaly contaminated".
Supreme Court interventions
Despite statutes prohibiting placement of juveniles in jail, they are
routinely shown as adults on arrest,
kept in police lock-ups and jails,
their trials are conducted before regular criminal courts, and they are
convicted and sentenced to imprisonment, sometimes even life imprisonment. The Supreme Court has
repeatedly been called upon to
examine the issue of juveniles in jail.
In 1986, Sheela Barse petitioned the
www.combatlaw.org
Supreme Court seeking "release of
children below the age of 18 years
detained in jails in different states of
the country". The same year, the
Supreme Court criticised the practice of keeping children in jail and
ordered state governments to establish observation homes so that juvenile offenders could be placed there
pending their inquiries. In that judgment, it has also attempted to give
reasons as to why juveniles should
not be kept in jail.
"If a child is a national asset, it is
the duty of the State to look after the
child with a view to ensuring full
development of its personality. That
is why all the statutes dealing with
children provide that a child shall
not be kept in jail. Even apart from
the statutory prescription, it is elementary that a jail is hardly a place
where a juvenile should be kept.
There can be no doubt that incarceration in jail would have the effect of
dwarfing the development of the
like once again to impress upon the
state governments that they must set
up necessary remand homes and
observation homes where children
accused of an offence can be lodged
pending investigation and trial. On
no account should the children be
kept in jail and if a state government
has not got sufficient accommodation in its remand homes or observation homes, the children should be
released on bail instead of being subjected to incarceration in jail."
In Gopinath Ghosh vs. State of
West Bengal , the accused for the first
time before the Supreme Court
claimed that he was below 18 years
on the date of commission of the
offence and was therefore to be treated as a child under the West Bengal
Children Act, 1959. Whilst upholding the plea of Gopinath, the apex
court noted the recent tendency of
the plea of juvenility being raised for
the first time before them and obligated the magistrate to conduct an
The international community has also
acknowledged the importance of keeping
juvenile offenders separate from adult offenders
child, exposing him to baneful influences, coarsening his conscience and
alienating him from the society. It is a
matter of regret that despite statutory provisions and frequent exhortations by social scientists, there are
still a large number of children in different jails in the country as is now
evident from the reports of the survey made by the district judges pursuant to our order dated 15 April,
1986. Even where children are
accused of offences, they must not be
kept in jails. It is no answer on the
part of the states to urge that the
ward in the jail where the children
are kept is separate from the ward in
which the other prisoners are
detained. It is the atmosphere of the
jail which has a highly injurious
effect on the mind of the child,
estranging him from the society and
breeding in him aversion bordering
on hatred against a system which
keeps him in jail. We would therefore
age determination inquiry if the
accused produced before him
appears to be 21 years or below. The
criminal manual issued by High
Courts direct magistrates and judges
to ascertain the age of youthful
offenders when in doubt.
"All Courts should, whenever a
youthful offender or a party is produced
before them, take steps to ascertain his
age. If the age given by the Police does
not appear to be correct from the appearance of the offender or party, and if the
police cannot produce satisfactory evidence regarding his age, the court should
consider the desirability of sending the
offender or party to the medical officer
for the verification of his age before proceeding with the case."
It continues to say in Chapter VIII
titled "Child and Young Offenders"
that the best evidence of age is the
entry in the births and death register,
but when such evidence is not available the accused should be medically
81
JUVENILES
examined, and a definite finding
with regard to age should be recorded by the magistrate in each case,
and if the accused on inquiry is
found to be a juvenile, the matter
should be transferred to the juvenile
court.
In Bhola Bhagat's case, the
Supreme Court, whilst entertaining a
plea under the Bihar Children Act,
has directed courts to conduct an age
determination inquiry whenever an
accused claims to be a juvenile and
return a finding regarding age prior
to proceeding with the criminal case.
"We expect the High Courts and subordinate courts to deal with such
cases with more sensitivity, as otherwise the object of the Acts would be
frustrated and the effort of the legislature to reform the delinquent child
and reclaim him as a useful member
of the society would be frustrated."
In Sanjay Suri & Anr. vs. Delhi
Administration, Delhi & Anr. , the
Supreme Court has urged magistrates and trial judges to specify the
date of the accused on a warrant, and
jailors to refuse to accept warrant if
the age of the prisoner is not mentioned.
Juveniles and erring offcials
Although the legislature and the
judiciary have made it clear that no
juvenile should be detained in jail,
juvenility remains undetected, and
minors continue to languish in jail
thanks to erring officials. Detention
is always coupled with the juvenile
being, in all other aspects too,
included within the criminal justice
system. Juveniles are declined the
safeguards of juvenile legislation,
such as socio-legal approach of the
juvenile justice board, completion of
inquiry within four months, and
mandatory granting of bail except in
certain prescribed circumstances.
Stringent measures must be taken to
make erring functionaries responsible for denying a juvenile the protection of a progressive legislation.
The judiciary should show the way
by awarding compensation to the
accused or convict who has belatedly been declared a juvenile, for the
injury caused to him because the
procedure established under law
was not followed, thus encroaching
on his personal liberty. Such compensation should be jointly payable
82
by the investigating officer, the
jailor, the magistrate, the session
judge and any other functionary
who has neglected to ascertain the
age of the accused, thereby keeping
a juvenile in jail.
It is only when the system is
made accountable that any positive
change will be noticed. There
should be a regular scrutiny of
police lock-ups and jails by independent persons, such as lawyers, doctors, social workers, along with a
legal aid lawyer, to identify juveniles and help them expeditiously
raise the plea of juvenility. Visitors
are appointed not only to voice the
problems faced by inmates, but also
to explore solutions along with the
state government, especially with
regards to that which deprives the
prisoner of his entitlement. To
ensure that the plea of juvenility can
be raised at the earliest and precious
years saved, it is necessary that
those accused are not placed in a
position where they have to engage
a private lawyer. They should
instead, have the services of a competent legal aid lawyer from the
time of first production. Juvenile
justice should be included in the
curriculum of law colleges and judicial officers training institute.
Awareness should also be created
amongst prisoners about juvenile
legislation so that juveniles wrongly
incarcerated in jail may themselves
inform magistrates or judges about
their being under 18 years on the
date of offence.
years of age as on the date of commission of such offence. This Act has
increased the age of juvenility in case
of a boy from below 16 years to
below 18 years, and the amendment
has made retrospective such increase
in age of juvenility. The effect of retrospectivity is that protection of
juvenile legislation is to be accorded
to all persons who have committed
offences when below 18 years of age
irrespective of the date on which
such offence was committed, or
whether their cases are pending or
disposed of. Hence, persons above
16 years of age who had been treated
as adults under the 1986 Act are to be
identified and brought under the
ambit of juvenile legislation, even if
the offence was committed prior to
the 2006 amendment. This is not an
easy task, but it is also not an impossible task and should be taken up by
respective state governments on a
war footing.
REFERENCES
Umesh
Dukhan
Mandal
vs.
State
of
Maharashtra & Anr. : 2004 ALL MR (Cri)
2137.
Section 71 of the Bombay Children Act 1948.
Rule 9 of the Bombay Children Rules 1950.
Section 11 of the Children Act 1960.
Section of the Children Act 1960.
Section 2(j) of the Children Act 1960.
Section 11(1) of the Juvenile Justice Act 1986.
Section 10(1) of the Juvenile Justice Act 1986.
Section 22 of the Juvenile Justice Act 1986.
Section 8 of the Juvenile Justice (Care and
Protection of Children) Act 2000.
Section 9 of the Juvenile Justice (Care and
Protection of Children) Act 2000.
Conclusion
Beijing Rules adopted by the General Assembly
Identifying juveniles, removing
them from the criminal justice system, and bringing them within the
folds of the juvenile justice system
should be given the priority it
deserves. With the 2006 amendment
to the Juvenile Justice (Care and
Protection of Children) Act, 2000, the
identifying of juveniles in jail has
become more significant. At this
stage it is important to comprehend
who is the person that is to be treated as a juvenile under prevailing
juvenile legislation. Section 2(l) of
the 2000 Act as amended in 2006
defines "juvenile in conflict with
law" to mean a juvenile who is
alleged to have committed an
offence and has not completed 18
on 29-11-1985.
Clause 13.3 of the Beijing Rules.
Sheela Barse vs. Union of India : (1986) 3 SCC
632.
Sheela Barse vs. Union of India : (1986) 3 SCC
632.
1984 (Supp) SCC 228.
Criminal Manual issued by the High Court of
Judicature (Appellate Side) Bombay for the
Guidance of the Criminal Courts & their
Subordinate Officers, Gupte & Dighe, Hind
Law House, 2001, 5th Edition.
Bhola Bhagat vs. State of Bihar : (1997) 8 SCC
720.
AIR 1988 SC 414.
Section 2(h) of the Juvenile Justice Act 1986.
Section 7A, Explanation to section 20 and section 64 of the Juvenile Justice (Care and
Protection of Children) Act 2000.
COMBAT LAW MARCH-APRIL 2008
R E H A B I L I TAT I O N
xpand your vision, and see
that inside every culprit is a
victim crying for help. If
you heal the victim, you will eliminate crime from the planet," says Sri
Sri Ravi Shankar. If we go by the philosophy that culprits are victims of
their own circumstances, then the
best way of reducing re-offending is
by ensuring that the prisoners are
able to get back to the wider community as useful and law abiding members. This is possible if they have a
job and a home to go back to.
Rehabilitation is a challenging task
and a wide process in which the state
has enrolled the help of varied organisations such as Prayas to facilitate
this process. During the eighties, Dr
Sanober Sahani, a faculty member of
the (then) department of criminology
and correctional administration at
TISS, started visiting Arthur Road
Prison for her doctorate thesis concerning rehabilitation of women and
children undertrials released into
society from custodial institutions.
Prayas is a result of her research.
Prayas systematically traces the
thread that links the individual
undertrial within the custodial institutions and the community. Its initiatives are focused on rehabilitation of
persons vulnerable to or affected by
crime or prostitution. Normally,
when prison law and order is discussed, convicts take centrestage and
undertrials are sidelined as they are
considered temporary. This is in spite
of the fact that they constitute the
majority within custodial institutions
(jails, remand homes and juvenile
justice homes) which are punitive
and isolated from the outside community. Little differentiation is made
between first-time offenders and seasoned criminals. Seasoned criminals
especially those in for larger crimes
are treated better and small transgressors are looked down upon. As
such, there is a temptation to graduate to serious crimes.
Undertrials are far more vulnerable to exploitation than their seasoned counterparts when they are
released back into the larger community, and in their old circumstances,
that had initially encouraged the
crime in the first place. Many have no
family or community to go back to
and are vulnerable to anti-social elements. Many are lost in the big city;
"E
www.combatlaw.org
Rehabilitating
Undertrials
The Prayas team shares its experiences on its work
within the criminal justice system and the processes it has
adopted to reintegrate ex-prisoners back into the
community
they lack special skills and are
devoid of shelter in the new areas.
Their encounters with the law are
alienating and calculative and their
existence is basically based on survival of the fittest.
Service delivery
Prayas concentrates on re-connecting
undertrials to their community of
origin or employment. The prime
focus of its services is on rehabilitation of persons termed as clients having a past or those vulnerable to
crime, prostitution and destitution.
The organisation is currently working in five prisons, courts and legal
Prayas concentrates
on re-connecting
undertrials to their
community of origin
or employment. The
prime focus of its
services is on
rehabilitation of
persons termed as
clients having a past
or those vulnerable
to crime, prostitution
and destitution
aid systems in three districts, two
institutions for women who are vulnerable to crime, prostitution or destitution, and rehabilitation centres in
Maharashtra and Gujarat. Its work in
women's institutions includes introduction of the rehabilitation process
after their release both in terms of
reuniting them with their families,
and assistance in resettlement within
and outside Mumbai of those who
are destitute.
Services range from legal literacy,
home visits, writing of applications
to represent requests to the court,
working with families and children
with the objective of involving them
in the rehabilitation process and
towards minimising the effect on
children respectively. In addition,
counseling services, awareness and
educative sessions are conducted for
prisoners. Through this process,
Prayas attempts to establish a prosocial relationship with inmates,
which has a positive effect on the
post-release work of rehabilitation.
Prayas seeks to establish a clear
contact with each client about using a
standard set of rehabilitation services
evolved over 18 years of work. The
organisation uses an 'area-to-area'
approach, where undertrials are
encouraged to move from the originating areas that foster criminal
activity, to original homes where
possible or to new more stable contexts. In this transition, Prayas helps
finding them safe shelter, skill training and employment. It also seeks to
create discussion spaces and provides different forums that act as
safety nets. These allow clients to
83
R E H A B I L I TAT I O N
reflect, mediate their entry into the
world, share problem-solving and
express themselves within non-punitive contexts.
The rehabilitation process
While working towards rehabilitation of affected persons, social workers pick up cases where the persons
are in need of rehabilitative services.
These 'pick- up" points include prisons, police stations, women's institutions and public places (railways,
streets etc). Once the client has been
identified, the process begins. Crisis
intervention is a major component of
Prayas' work. It handles medical
emergencies, arrests, child support,
rations, house repair and shelter. The
rehabilitation programme adopts an
"area to area" approach.
This involves movement of a person from an area facilitating the person's involvement in crime or prostitution, to an area offering stability in
terms of the family, an institution or a
new area. Once the crisis situation is
over, the social workers bring in long
term developmental goals that
include training and vocational
development both at the development centers or an outside training
institute. After completing a basic
level of training, the client is then
placed at an NGO for training.
From the beginning, Prayas has
had to explore strategies for rehabili-
Mainstreaming is a
gradual process in
which positive
experiences and a
conducive
environment are
essential. Most
people have some
skills, which could
be developed given
space and time to
adjust
84
tation. Providing gainful employment for released prisoners encountered difficulties. Ex-prisoners were
directly employed with employers
contacted through well wishers and
were willing to provide employment
after being appraised of the person's
background. However, the obstacle
was absence of work culture, such as
regularity to work, discipline at the
workplace, self-control and handling
money. This was because most of
these persons had been deprived of
opportunities (including educational, vocational and emotional) that
they would ordinarily have been
exposed to, making it difficult to get
absorbed into the mainstream. Most
training programmes require that a
person should have completed a
basic minimum standard of education, in order to qualify for undergoing that programme. High expectations from the private sector, coupled
with lack of expertise, and emotional
and behavioral problems resulted in
difficulties in functioning on par
with the others in the organisation.
Understandably, cases of persons
directly employed yielded negative
results although there were rare
instances where a person settled
down well with an employer and
acquired a skill set. Mainstreaming is
a gradual process in which positive
experiences and a conducive environment are essential. Most people have
some skills, which could be developed given space and time to adjust.
With this in mind, Prayas began a
NGO placement programme, a specialised programme for rehabilitation
of affected populations through its
youth development centers. As a first
step forward, the person adopts a
new identity — that of a student, thus
marking a change from the earlier
and murkier identity. This enables a
smoother transition into the mainstream society.
At the development centres, a special curriculum has been designed to
help the person relearn alternative
coping skills, develop and/or upgrade
vocational skills, imbibe work ethics,
encourage altered methods for handling money, start savings and alter
lifestyles. Placement counseling is
conducted based on earlier interactions and keeping the client's interests
and talents in mind. Initiation into the
placement programme is gradual. It
The social worker's
efforts are directed
towards either
reuniting the person
with his family or
finding an alternate
support system
depending on the
person's willingness
to return to the
family. There is also
a need to check out
whether the family is
willing to accept the
person back or has
the capacity to
absorb the
disturbances that
may get created
once the person reenters the family
commences with exposure visits suited to their educational background
and skills. This is followed by shortterm placements, starting from a
week to a month — extended if mutually beneficial to both trainee and
organisation. A number of them land
up working with NGOs when they
are unsure about their interests. These
short-term placements give the agency an opportunity to supervise and
closely monitor the clients, in order to
identify his strengths. Simultaneously,
the client also gets the opportunity to
check out the work environment and
accumulate experiences different
from those in the past.
Obstacles faced
The Prayas team has to walk on egg
shells while working with undertri-
COMBAT LAW MARCH-APRIL 2008
R E H A B I L I TAT I O N
als. Unpredictable situations are
common. Their propensity for violence, emotional instability makes it
essential for the social worker to be
non-reactive, which is important for
their personal security. People with a
criminal or a prostitution background or those who are vulnerable
to them, have usually undergone a
process of physical and psychological movement, which has ultimately
ended in a life of crime.
The turning point in the person's
life is often a conflict situation at
home or being obliged to leave
home. Tensions in the home situation may make the person stay out
of home for long periods of time
making them prey to negative influences, in the absence of alternate
positive supports. The social worker's efforts are directed towards
either reuniting the person with his
family or finding an alternate support system depending on the person's willingness to return to the
family. There is also a need to check
out whether the family is willing to
accept the person back or has the
capacity to absorb the disturbances
that may get created once the person
re-enters the family. In such circumstances, the family's high expectations about the organisations lead to
a dependence on it. The organisation has to attend to the adjustment
problems arising between the affected person and the family. Having
led an independent and carefree life
for some time, adjustment with the
family and environment proves to
be a difficult task.
In case re-entry into family is
impossible, the other option is a shelter home to keep them away from
negative influences. The advantage
of staying in shelter homes is its
financial viability as compared to
staying out. Adjustment is difficult
initially due to the discipline they
need to adhere to. The problem arises when the client begins his stay in
the home. Although Prayas maintains regular contact with the institutional authorities so as to address
and solve any problems that may
arise during the course of a person's
stay in the institution, an overly difficult client can deter the institutional
authorities from admitting such
clients in future. Added to this is the
fact that compared to females, there
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are hardly any shelter homes for
males.
Expecting understanding and
cooperation from these institutions
regarding bringing about changes in
the personality of the clients and
their situation has been difficult. This
transformation is a long drawn process. Very often, the client does not
see himself as part of the change process. His expectation is to change
other people or the environment. In
some cases, there is a dependence on
The absence of any
laid down law or
policy on the issue
of rehabilitation of
persons in crime or
prostitution or
their children is a
major hurdle
towards working in
this field
a specific worker or the organisation
with respect to even minor problems.
During the NGO placement programme, the client may face adjustment problems either with the agency or a specific staff member due to
their confusion about their area of
interests. This may lead to their being
placed in an NGO. This has the
potential of their withholding information from the social worker, dropping out of the programme and
falling back on earlier relationships,
which had initially had led to crime.
There is also the possibility of the
person being picked up on suspicion
or as a preventive measure due to his
past crime record. For a person genuinely attempting to move out of
crime or deviance, this can be a discouraging experience. To combat this
problem, a circular was issued by the
Commissioner of Police to all police
stations informing about Prayas and
the type of work being done. As such,
in case a client is arrested on suspi-
cion, Prayas gets in touch with the
police and apprises them of the situation of the client, to avoid preventive
action being taken against them.
Conclusion
Prayas has also expanded its scope of
work. Its interaction with the police
stations has led to it assisting in varied police cases including marital,
family and neighborhood disputes,
missing persons, mentally disturbed
persons and victims of crime and
other cases of vulnerable persons. It
provides counseling of minor girls
and women rescued by the police
from brothels and is currently working with the Railway Police to rehabilitate minors and women vulnerable to sexual exploitation, destitution
or trafficking. Efforts towards sensitisation
are
multi
pronged.
Advocating for a rehabilitation policy, lobbying and sensitising custodial
institutions to enable changes that
will help reintegrate undertrials into
their communities, legitimise the
rehabilitation work in these institutions, restore citizenship and state
benefits to undertrials by reverting
from their criminal identities to identities as citizens, and transforming
state institutions and resources to
ensure that rehabilitation is seen as a
public good.
Translating the work done by
Prayas and experience gained into a
policy for action continues to remain
a challenge. For effective rehabilitation to take place there should be
government initiatives and a basic
policy framework. In the last two
decades Prayas has demonstrated the
scope and need for a rehabilitation
policy and scheme for persons
released from custodial institutions
and for those who are vulnerable; the
need for a cadre of social workers
within the prison system to liaise
with the administration towards protection of legal rights of custodialised
populations; and towards post-discharge rehabilitation of persons. The
State must give priority to and make
systemic, regular provisions for rehabilitation instead of leaving it entirely on social organisations. The
absence of any laid down law or policy on the issue of rehabilitation of
persons in crime or prostitution or
their children is a major hurdle
towards working in this field.
„
85
R E A L I T Y BY T E
Tall talk of Arthur Road Jail SSP
Located at Saat Rasta — Seven Roads — is Bombay Central Prison, better known as the
infamous Arthur Road Jail. Built in 1926, it is Mumbai's largest and oldest prison and
houses nearly 3000 male undertrial prisoners, a number that far exceeds its capacity of
1074 prisoners. Till a few decades back, it was one of the most dreaded jails in India
because of its overcrowding and maltreatment meted out to prisoners by jail guards. As
prisoners jostle for space, the moneyed get what they want while the poor are packed in
barracks like sardines. Basic amenities are in short supply and tussles between Dawood
Ibrahim, Chhota Rajan, Arun Gawli, Amar Naik and Chota Shakeel gang members are
frequent though with most of the dons in exile. The prison is now under Swati Sathe
who is its senior jail superintendent. She met Sujata Krishnamurti though briefly to
talk about problems that defy solution
nsconced
behind
the
formidable walls of Arthur
Road Jail, is senior jail superintendent, Swati Sathe. She comes
across as a soft spoken and gentle
person. But looks can be deceptive.
As a constable sitting outside
described her, "madam is made of
steel. She takes no nonsense."
Looking at her, it is difficult to imagine that she is in-charge of a bunch of
hard bitten prisoners. Swati Sathe,
the first woman jail superintendent
in India, began her career as a jailor
in 1995 and has created a reputation
of being a strict and stern jailor -- a
reputation that came in good stead
when she took over Arthur Road
Prison in 2002. She has effectively
squashed corrupt practices rampant
among inmates and introduced
reforms in terms of rehabilitation
programmes.
She takes time off to reflect on
issues ranging from sodomy to video
conferencing, and some of the rehabilitation programmes that are currently on in the jail. Going by media
reports, homosexuality and drugs
are rampant, and HIV stalks the
prison cells and barracks. Sathe however has a different take on it. She
dismisses sodomy as "it is difficult
when prisoners sleep in close proximity to each other". Where reports
on HIV prevalence is concerned, she
says they are exaggerated.
Sathe believes that video conferencing is a very useful technology as
E
86
it saves time, manpower and money,
and more importantly, allows speedier clearance of undertrial prisoners.
Through the system the prisoner can
see the court proceedings clearly
through the video image. "We do not
conduct trials through video conferencing although Arthur Road Jail has
two systems in place and it has been
operational for two years. We use it
purely for remand prisoners to link
them to the courts. Its main function
is to get the next date that is all." An
added advantage is its capacity to
connect a prisoner to his family
where distances and shortage of
money act as deterrents. Speaking on
the non-production of accused
because of lack of escort she points
out that the main problem lies in the
delay in clearing cases and not in
providing escorts. The only solution
is having fast track courts.
Rehabilitation is her pet subject.
"We need to pay attention to the
reform and rehabilitation of inmates.
Correctional and reformatory measures are essential to ensure that
there are no repeats, that is, the exconvict does not return to crime.
Despite our outdated infrastructure
and lack of modern technology
repeatism in India is a mere four percent compared to the United
Kingdom where it is 64 percent." The
jail currently has a drug de-addiction
centre run by Sankalp, meditation
courses run by the Art of Living,
vocational courses including computer training, basic literacy courses,
and organisations like Gandhi Vichar
Manch which preaches Gandhism,
Ambika Yog Kutir, which runs yoga
classes
and
Anirudha
Bapu
Foundation which runs health camps
and weekly prayers. When asked
about reconnecting the ex-prisoners
to community resources, her reply is
"organisations like Prayas run rehabilitation programmes to do this job.
We enable these programmes but do
not get into them directly."
An anti-septic approach is not
confined to just this but runs through
most other things. Prisoners not just
in Arthur Road Jail but also through
most prisons in the country are
looked from the bureaucratic prism
that blurs the vision more than leading to anything else whether reforms,
or decongesting jails.
REFERENCE
1. ttp://en.wikipedia.org/wiki/Arthur_Road_Jail
COMBAT LAW MARCH-APRIL 2008
H E A LT H I N P R I S O N
Where HIV
virus festers
Protecting the rights of prisoners is primary duty of the
government, yet jail custody has among other things
been festering ground for HIV/AIDS that threatens not
only those undergoing confinement but has also a risk
for those who are outside the prison, writes
Sujata Krishnamurti
vercrowding, lock up deaths,
dismal living conditions poor
nutrition and medical facilities have been major afflictions dogging Indian prisons. However, these
pale before a graver threat that stalks
prison cells — HIV/AIDS. A threat
exacerbated by poor health conditions and an indifferent and ignorant
prison system. It is deeply worrying
that the prison authorities are unable
to gauge the enormity of the threat
HIV poses and how critical HIV prevention measures are. There are no
penal reforms, apex court judgments
are rarely implemented, and prison
manuals are outdated with the result
that there is scant respect for prisoners' rights.
According to new estimates from
UNAIDS, NACO, and WHO, as on
July 6, 2007 there are 2.5 million HIV
positive people living in India. Of
these, 8.44 percent are female sex
workers, 10.16 percent injection drug
users (IDUs), and men having sex
with men (MSMs) are at 8.74 percent.
They constitute the floating population in prisons and are the links to
the wider community. New infections continue to occur among high
risk groups, their vulnerability
increased to HIV infection by potentially unsafe behavior such as unprotected heterosexual and homosexual
intercourse, tattooing and an illicit
O
www.combatlaw.org
sharing of injections. Once infected,
HIV prisoners are subjected to various violations of human rights by the
prison authorities and the medical
establishment making it imperative
for a rights-based approach to prison
jurisprudence.
If the epidemic has brought in discrimination outside the prison walls,
its effect on the prison populations
has been devastating. Prisons, a frothing cauldron for violence, sexual
activity, and injection drug use, carry
the potential for HIV transmission.
Unprotected, coerced and consensual
sexual intercourse is a common occurrence in prisons, and often involves a
high risk of HIV transmission because
of the unavailability of condoms and
its violent nature. Another high risk
category is the IDUs. Incarceration is a
common event with them and their
numbers have been increasing over
the past few years in Indian jails — be
it Arthur Road jail, Mumbai or Tihar
Jail, Delhi. In a study conducted by
the ministry of social justice and
empowerment and UNODC about 10
percent of the inmate population at
Tihar Jail, Delhi was found to be using
drugs and of this, 4.9 percent were
IDUs.
There is a constant mobility in the
prisons with prisoners in daily contact with people coming in and out of
the prison. This increases the risk of
spreading infectious diseases within
and outside the prison. At the national level few studies have been conducted on HIV positive prisoners. It
is very difficult to make a complete
assessment of the extent of work that
has been done on HIV prisoners.
There is no doubt that HIV has
placed an enormous fiscal burden on
prisons, which are already stressed
financially. However if one were to
compare the cost of HIV care in prisons to its overall cost to public health,
the budget constraints pale in comparison.
Living conditions in jails are
appalling especially at the tehsil level
where even basic conveniences are
missing. Severe overcrowding,
decaying physical infrastructure,
lack of medical care and proper
hygiene, guard abuse and corruption, and violence among inmates
add to the problem. These harsh
prison conditions are not only from
fiscal and budgetary constraints, but
also from traditional beliefs that prefer punishment instead of correction
and reform, not to say of rehabilitation. Consequently, with the public
primarily concerned about keeping
prisoners locked up rather than worrying about the conditions in which
they are confined, little progress has
been made toward remedying these
abuses. Prison overcrowding, contributes significantly to prisoners
rights abuses. As of December 31,
2005, according to the National
Human
Rights
Commission
(NHRC), in the 1312 Indian prisons
there are 3,58,177 lakh prisoners —
two-and-a-half-time its normal
capacity of 2,48,439 inmates.
One of the most debilitating features of Indian jails is the lack of
basic health care. A study conducted in Central Prison, Yervada, Pune
in 2001, observed:
Hospitalisation: In one year, 44
percent of all inmates had fallen
sick and 14.5 percent had to be
admitted to hospital.
Tuberculosis (TB): TB was the
most common illness - 25.15 percent of all respiratory disorders or
a population prevalence of 7.5
percent which is about four times
higher than national figures of
about 1.8 percent. Reasons for this
high rate could be overcrowding
and close contact.
87
H E A LT H I N P R I S O N
Prisoners in shackles of HIV fear
MADURAI: Thirty-three prisoners died of various diseases including
HIV in Madurai Central Prison in the last three years. According to official sources, there are 2,700 inmates while the capacity is only 1,200.
Many suffer from serious ailments…the recent suicide of a lifer owing to
lack of medical attention, has brought inadequate health care in the jail to
the fore. The congestion is said to be the main reason for the spread of
infectious diseases though jail authorities claim that there are 24 separate
cells for patients with communicable diseases such as TB. The inmates
live under constant fear of HIV spreading inside the jail. When contacted, a senior prison official said there was no regular blood screening for
inmates and hence he was not aware of how many suffered from HIV.
—S. Vijay Kumar, The Hindu Wednesday, Aug 10, 2005
AIDS, STDs and genito-urinary
disorders: 5.7 percent of the
inmates were suffering from
penile ulcers and three percent
from acute Gonorrhoea, A 0.4 percent HIV positivity prevalence
was detected. Maharashtra has a
prevalence of 0.026-0.034 percent,
in the general population.
As with other chronic illnesses,
HIV requires health services that are
expensive in terms of staff effort and
expertise, laboratory testing, and
medication. Given the high-risk
lifestyles the prisoners lead, prison
authorities should have a thorough
knowledge of how HIV is likely to be
transmitted. Instead of providing
prisoners with prevention tools -condoms, sterilised needles and
syringes — prison administrators
frequently bar the entry of these
items. Even HIV/AIDS education,
which could help prisoners understand their vulnerability to the virus,
is a rarity in prisons.
The levels of HIV prevalence
within the prison populations tends
to be much higher than in the general population. Studies, most of which
has been carried out in developed
countries, reveal that HIV prevalence
rates in prisons range from 10 percent to 25 percent.
The rights based approach
If the epidemic has brought in discrimination outside the prison walls,
its effect on the prison populations
has been devastating. Once infected,
HIV prisoners are subjected to various violations of human rights by the
prison authorities and the medical
establishment making it imperative
for a rights-based approach to prison
88
jurisprudence. The importance of a
rights-based approach in dealing
with prisoners with HIV/AIDS is
focused by the key issues for the HIV
patient — consent, confidentiality
and discrimination. Prison administration has either shown their ignorance to the possibility of infections
in the prisons or responded to the
epidemic with mandatory HIV testing, segregation and isolation.
HIV in prisons raises a number of
issues that transcend that for the general community. Can prison authori-
Living conditions in
jails are appalling
especially at the tehsil
level where even basic
conveniences are
missing. Severe
overcrowding,
decaying physical
infrastructure, lack of
medical care and
proper hygiene, guard
abuse and corruption,
and violence among
inmates add to the
problem
ties insist on mandatory antibody
testing? To what extent can one
expect prisoners to give true, free
informed consent? Mandatory HIV
testing of prisoners without
informed consent is a violation of
prisoners' rights. However, if HIV
testing is not mandatory then the
prisoners need to be adequately
empowered with information to
make informed decisions about taking the test. They must understand
the consequences of a positive HIV
antibody test result, such as possible
segregation and loss of access to
activity programmes, visitation, and
jobs. Confidentiality of medical
information in a small prison community is virtually impossible to
maintain. Where quarantines exist,
confidentiality cannot. Fear of disclosure and its consequences — discrimination both amongst their fellow convicts and afterwards when
they are released, by the community
at large may discourage voluntary
testing. The other end of the spectrum is that HIV testing benefits
inmates in terms of antiretroviral
therapy, distribution of bleach and
methadone maintenance treatment.
The lack of proper segregation is
a serious issue in Indian jails.
Although all prisoners undergo a
medical examination when they
begin serving their sentence, in most
cases there is no testing for specific
infectious diseases. Although India's
prison manuals provide for segregation of prisoners suspected of having
contagious diseases, few jails practice this segregation in the real sense.
Where there are separate barracks for
infectious diseases, Tuberculosis (TB)
patients and HIV positive people are
kept together putting the HIV
patients under huge risk of contracting and succumbing to TB. The
National Human Rights Commission
(NHRC) report 2003-04 puts the
number of deaths in judicial custody
in India at 1,300. Most were due to illness aggravated by medical negligence. Of these how many succumbed to HIV/AIDS is open to conjecture.
Human rights
"All human beings are born free and
equal in dignity and rights. They are
endowed with reason and conscience and
should act towards one another in a spir-
COMBAT LAW MARCH-APRIL 2008
H E A LT H I N P R I S O N
it of brotherhood." Article 1, United
Nations Universal Declaration of
Human Rights (UDHR)
As the term suggests, "human
rights", is about rights of every
human being in the world, including
prisoners. If the State is sovereign
then this sovereignty has been
bestowed on the State by the individual in return for the rule of law.
Prisoners have inalienable rights
conferred upon them by international treaties and covenants; they have a
right to health care, and most certainly have a right not to contract diseases in prison.
Prisons are meant as a punishment, an enforcement of the loss of
an individual's right to liberty by
keeping them in closed custody during the duration of their jail tenure.
They do not lose their basic fundamental right to living with dignity
and the right to health. Yet, custodial
institutions across the world tell a
different story. Few provide the prisoners a healthy environment
although governments are bound to
provide health services and a healthy
environment to prisoners.
Prisoners
are
as
it
is
marginalised, often without access
to HIV prevention, care, treatment,
or support. Depriving them of the
means to protect themselves from
HIV infection and failing to provide
them with the basic treatment facilities that are available outside the
prison walls, offend international
norms. International norms grant
prisoners all human rights except
those that are necessarily deprived
due to incarceration.
There are two categories of
instruments that protect human
rights.
International human rights law:
Laws such as the International
Covenant on Civil and Political
Rights, International Covenant on
Economic, Social and Cultural
Rights, the African Charter on
Human and Peoples' Rights, and
the European Social Charter,
although general in nature, are
relevant to the rights of prisoners
in context of the HIV/AIDS epidemic. States that have ratified
these international laws are legally bound to respect, protect, and
fulfil the right of prisoners and
www.combatlaw.org
Prisons are meant as
a punishment, an
enforcement of the
loss of an individual's
right to liberty by
keeping them in
closed custody during
the duration of their
jail tenure. They do
not lose their basic
fundamental right to
living with dignity and
the right to health
are bound to ensure their highest
attainable standard of physical
and mental health.
International rules, standards,
and guidelines are not law, and
are therefore not binding on governments. However, they impose
both negative and positive obligations on states where prisoners
are concerned.
National perspective
"Convicts are not, by the mere reason of
their detention, denuded of all the fundamental rights they possess." DBM
Patnaik vs State of AP AIR 1974 SC
2092
Although penal reform has still a
long way to go in India, the fact that
the Indian Constitution was framed
around the same time as the UDHR,
has ensured that the courts have
passed several judgments in favor of
prisoners in recognition of their fundamental rights and have addressed
the issues of health, hygiene and
medical treatment. Prisoners' rights
to live with dignity, right to health
and treatment and to be free from
torture are offshoots of Article 14, 21
and 22. In a landmark judgment, the
Supreme Court of India, in
Parmanand Katara vs Union of India
(1989) and others ruled that the state
has an obligation to preserve life
whether he is an innocent person or a
criminal liable to punishment under
the law.
Unfortunately, despite several
landmark judgments by the Supreme
Court, implementation has been
slow with few, if any, legislative
amendments. The Prisons Act of 1894
is more than 100 years old and many
State Prison Manuals continue to
provide for draconian measures
which are geared more towards retribution than rehabilitation.
Containing HIV in prisons
In the past few years there have been
sporadic efforts by some states to
introduce better health care services
within the jails through the cooperation of medical and social organisations. These projects conduct training
programmes for prison officials, provide counseling and antiretroviral
HIV stalks the Arthur Road Jail
Post-mortem reports have revealed that 18 out of 27 inmates who died at
Arthur Road Jail in the past six months were HIV positive — and could have
developed AIDS whilst in jail. A senior doctor from the department of forensic sciences JJ Hospital confirmed that 25 post-mortems indicated an alarming rate of HIV infection among inmates. ''The reported deaths could just be
the tip of the iceberg,'' he said. Some of the causes of death listed were TB,
lung infections and liver diseases. Some of the deceased also had a history of
drug abuse. The Arthur Road Jail is infamous for its overcrowded conditions.
There are more than 3,400 inmates, but its official capacity is just 820. In the
absence of beddings, inmates are forced to sleep on the floor. Most toilets do
not have doors and inmates are forced to take showers in groups as water
supply is limited. Assault by jail officials is allegedly common. Lack of proper
diet and medical attention by specialists within the jail has added to their
woes.
—November 20, 2004, Mumbai Newsline, Indian Express
89
H E A LT H I N P R I S O N
therapy. Methodologies adopted
include individual counseling, peer
counseling, support groups, special
programmes for women, and training programmes for the staff.
Prisons have the potential of being a
huge target population for HIV education programmes. Implemented
properly, these programmes can
reduce fears about HIV and its transmission among staff members and
inmates. Since a majority of the prisoners are functionally illiterate, it is
imperative that these educational
programmes are conducted so that
they address and bridge not only language, culture and literacy gaps, but
also distrust. In January 2005, United
Nations Office on Drugs and Crime,
Regional Office for South Asia
(UNODC ROSA) started a two-year
pilot intervention project in Amritsar
Jail, Tihar Jail Delhi, and Arthur
Road Jail Mumbai. The project
focused on prevention of spread of
HIV amongst vulnerable groups in
collaboration with state governments
and NGOs. Its implementing agencies included Sankalp Rehabilitation
Trust, Arthur Road Jail, Mumbai and
Social Education and Health
Advocacy Training (SEHAT) , Tihar
Jail Delhi.
Although penal
reform has still a long
way to go in India,
the fact that the
Indian Constitution
was framed around
the same time as the
UDHR, has ensured
that the courts have
passed several
judgments in favour
of prisoners in
recognition of their
fundamental rights
and have addressed
the issues of health,
hygiene and medical
treatment
HIV counseling
SEHAT's work involves drug deaddiction programmes, providing
social education and health programmes, and conducting advocacy
campaigns. AIDS Awareness Group
(AAG), another NGO working in
Tihar focuses on enhancing STIs and
HIV/AIDS awareness in Tihar jail
and
providing
medical
aid.
According to its annual report, in
2006-2007, AAG managed to benefit
14,435 inmates in Tihar.
Sankalp Rehabilitation Trust has
been working in collaboration with
Lawyers Collective HIV/AIDS unit
since 2005 in Arthur Road Jail,
Mumbai. The project titled Civil
Rights Initiative provides counseling, medicines and treatment, legal
aid and advice to drug users through
its rehabilitation programme. The
HIV prisoner fights release
A HIV positive patient in Delhi's Tihar Jail has begun legal action against a
move to release him. He told the court that he would suffer harassment from
his family and friends if he was set free. He was jailed on robbery charges two
years ago and is presently in the jail's hospital. He has not been visited even
once though he has four brothers living in Haryana. The petition filed before
the court says that he wants medical facilities even after he is released on bail.
But the jail authorities have already informed him that they will not pay his
expenses once he is released. Jail superintendent SG Moorthy told the BBC that
the prison authorities cannot take care of the person after he is released from
prison.
—30 March, 2001, BBC ( http://news.bbc.co.uk/2/low/asia-pacific/1251772.stm)
90
project has been allotted a separate
barrack with drug users who opt to
undergo their rehabilitation programme. In Nagpur Central Jail,
YMCA, Nagpur conducts a prison
and youth intervention programme
for HIV prisoners through which it
carries out sensitisation of the prison
community regarding HIV/AIDS
issues and creates an enabling environment through advocacy and service delivery.
The Surat Jail
in Gujarat has
been running a government initiative. This intervention strategy was
focused on sexual health to effectively minimise the impact of HIV and to
prevent
further
transmission.
Interventions included providing
information and education through
group meetings, individual counseling and focus group discussions on
risk behaviours, notably unprotected
sexual intercourse amongst MSMs,
aimed at promoting behavioural
changes in attitudes and risk
behaviour, both while in prison and
outside. Provisions were also made
for STD care and treatment, follow
up services along with counseling
services within the prison premises.
The government also developed a
referral system for STD and
HIV/AIDS cases with the help of
NGOs.
In January 2000, the Andhra
Pradesh government started a sexual
health programme called partnership for sexual health for prisoners.
Managed by Andhra Pradesh AIDS
Control Society, Hyderabad, it is
operational in 11 jails in Andhra
Pradesh. Trained staff members provide basic knowledge to inmates on
general health, recognition of signs
and symptoms of STDs including
HIV/AIDS, and preventive measures
with the help of pictures, charts,
booklets, pamphlets. The programme includes counseling, referral
and medical treatment.
In Karnataka, Asha Kirana, a NGO
works closely with Mysore jail and
provides weekly counseling services
to the inmates on HIV/AIDS and
STD. It has evolved an intervention
model under the directive of the state
government through which it provides group counseling, blood tests
and organises focused group discussions with the warden and few senior
inmates of the prison.
COMBAT LAW MARCH-APRIL 2008
H E A LT H I N P R I S O N
An HIV—AIDS hospice, the first
of its kind in the country, was set up
in Presidency Jail in Kolkata in 2006.
A special ward comprising four beds
was established in the jail along with
the first voluntary testing and counseling centre for prisoners. Convicts
serving life terms were trained to
provide counseling and take care of
the AIDS patients in this hospice.
This initiative has been taken by the
national legal services authority, the
state jail department and West
Bengal State HIV/AIDS Prevention
and control society. Future plans
include replicating the model in
Alipore Central Jail, Dum Dum
Central Jail and Special Jail for
women.
Future Interventions
These interventions notwithstanding
penal reforms are still a long way to
go. There are a number of hindrances
to providing a healthy environment
to prisoners. Prisoners are dependent
on prison authorities to provide
them with adequate health services.
For inmates who probably suffer
from ill health even before entering
the jails, the unfavorable conditions
within, only worsens the situation.
For effective control of HIV transmission in prisons, it is essential to transform factors that determine its
spread such as unprotected sexual
intercourse, sharing contaminated
needles, ignorance about transmission routes, stigma, and cultural and
gender biases.
Then there are issues over which
legal interests clash with public
health interests, such as availability
of condoms and sterile syringes .
Although
rampant,
practicing
homosexuality is a crime under IPC
Act 377 and prisons do not permit
the distribution of condoms to
inmates. Statutes in many jurisdictions make sexual activity in prison a
punishable crime as is the case in
India. In 1994 Kiran Bedi cited
Section 377 of the Indian Penal Code,
1860 which criminalises sodomy,
when she refused permission for the
distribution of condoms in Tihar Jail.
The IDUs face a similar problem.
Sharing injections is one of the most
deadly means of transmitting HIV.
However the Narcotic Drugs and
Psychotropic
Substances
Act,
(NDPS) 1985 criminalises and
www.combatlaw.org
marginalises IDUs leading to the
illicit use of injections or even dispensable syringes.
Human
rights
instruments
demand that prisoners receive health
care equivalent to that available for
the outside population. Prisoners
have the right to the highest attainable standard of health. Prison jurisdiction is responsible for providing
health care to their prisoners. In the
absence of a national policy for HIV
management in prison, the State
must develop guidelines for the prevention and treatment of HIV across
all Indian prisons. These guidelines
should include
Providing treatment of prisoners
in a manner similar to that of
other members of the community.
Connecting released prisoners to
community resources is critical.
The transition for prisoners from
custody to community is chaotic
and difficult. When this is coupled with a known HIV status,
the prisoner has to deal with both
a lack of adequate financial
resources and being an outcaste.
Courts should recognise the
severe impact of HIV/AIDS on a
prisoner's life and minimise this
by granting compassionate bail or
release.
Minimising to the extent possible
discriminatory practices relating
to HIV infection.
Make medical facilities available
and accessible to prisoners.
Make risk reduction services
(condoms, sterile injections)
available in prisons
Allotting additional human and
financial resources for HIV management in prisons.
Obtaining informed consent and
ensuring confidentiality in relation to HIV antibody testing and
implementing it.
Conducting HIV education programmes for prisoners and prison
authorities.
Empower prisoners to engage in
positive health behaviors during
incarceration and after release.
tody. Unfortunately its accountability
towards prisoners' rights is usually
determined in terms of negligence,
deliberate indifference and inhumane or degrading treatment. As the
HIV/AIDS epidemic reaches pandemic proportions, the state needs to
take stock of how best to combat it.
Prisoners carry the huge potential of
spreading HIV across the community at large if neglected. Prison jurisdiction needs to recognise that correct handling of prisoner health coupled with educational interventions
has the potential of reducing the disease's devastation in the larger community.
REFERENCES
http://www.avert.org/indiaaids.htm
Lawyers Collective http://www.lawyerscollective.org/content/hiv-aids
Barred Sans Life, Mohit Kishore, Riddhi Jasani
Lawyers Collective HIV AIDS Cell
http://nhrc.nic.in/
Health Status of Inmates of a Prison, Indian
Journal of Community Medicine
HIV/AIDS in prisons, Hiv/Aids Policy & Law
Review 96
Kamayani, CEHAT
http://www.lawyerscollective.org/content/hivaids
Legislating an Epidemic, HIV AIDS in India, The
Lawyers Collective
Kamayani, CEHAT
http://www.unodc.org/pdf/india/h71/
prison_intervention_site_curent.pdf
http://www.unodc.org/pdf/india/h71/
sehat_tot.pdf
Lawyers Collective http://www.lawyerscollective.org/content/hiv-aids
Knowledge & commitment for action in
HIV/AIDS prevention in prisons of Gujarat,
India. Pachpinde PA. Int Conf AIDS. 2002;
http://gateway.nlm.nih.gov/MeetingAbstract
s/102251762.html
HIV prevention programme for prisoners in
India : A successful experience. Mohammed
MU.
Int
Conf
AIDS.
2002
Jul
7-12;
http://gateway.nlm.nih.gov/
HIV seroprevalance and prevalent attitudes
amongst prisoners: A case study in Mysore,
Karnataka. Ghante Nagaraj S, Sarvade M,
Muthanna L, Raju R, Aju S, Sarvade NM. Int
Conf
AIDS.
2000
Jul
9-14;
http://gateway.nlm.nih.gov/
Protecting the rights of HIV prisoners would require a positive law
which includes changes in existing
laws primarily NDPS and Section
377 of the IPC Code. It is the State's
duty to care for individuals in its cus-
September 24, 2006 Indian Express Conf AIDS.
2000 Jul 9-14; http://gateway.nlm.nih.gov/
Lawyers Collective http://www.lawyerscollective.org/content/hiv-aids
Lawyers Collective http://www.lawyerscollective.org/content/hiv-aids
91
FOREIGN VOICES
Little girl's
long haul
A juvenile from Congo fled home in the wake of political
turmoil in her country. Her search for a safe refuge
somehow ended up in an observation home of Delhi's
Tihar Jail and later at a custodian's place from where she
fights an intricate legal battle through a public spirited
lawyer. Vulcanina meets the nine-year-old to piece
together her mounting woes
arine (real name withheld) is a
nine-year-old Congolese girl.
She was recently arrested and
put behind bars in Delhi's Tihar
Central Jail's observation home,
Nirmal Chhaya. In November last year
she was charged with violating section 14 of Foreigners' Act, 1946 as
well as certain sections of Indian
Penal Code. She faces charges under
section 419 of IPC, where an offence
like cheating is punishable by a sentence for three years; section 420 of
IPC - cheating and dishonestly
inducing delivery of passport, which
calls for a punishment for up to
seven years; section 468 of IPC —
forgery for purposes of cheating is
punishable by seven years and using
a forged document as genuine is also
punishable under section 471 IPC.
Carine's tender age in an alien
land has left her at the mercy of her
fate. There was no legal counsel handling this poor girl's case. As providence would have it, a human rights'
lawyer happened to hear about her
plight and took it upon himself to
seek justice and ensure her safety
and welfare. But there still existed a
huge language barrier. This, somehow led her lawyer to approach this
reporter for help to understand what
she was saying in French and dig out
facts of the case. For this, the lawyer
had to first obtain a court order.
Back in Congo, Carine enjoyed a
privileged life. Yet, one fine day she
C
92
was told to pack up her bags for they
must flee their homeland or else they
stand the risk of being assassinated
by her father's own political party
officials. Congo has been through
such political turmoil for over a
decade now that it could make any
person fleeing to save life by way of
becoming a political refugee in any
other country. However, she was not
granted refugee status by the
UNHCR because the Congolese
embassy was ready to act as her
guardian. Carine's father arrived in
India shortly after her. But he has
been dodging the police and court
since he is afraid of being put behind
the bars. Carine lived with her father
for two months in a south Delhi
neighbourhood — where she also
befriended her coeval neighbour. But
soon, she, along with her uncle, tried
to flee to France on forged German
passports. Together with her uncle,
she was caught at Mumbai airport.
Carine confesses that she has family
in France and says she wouldn’t be
surprised if her grandmother, who
accompanied her to India, has
already managed to get there by now.
Juvenile Justice Act (2000)’s Rule
10 requires a thorough medical
examination for children in conflict
with law at the time of entering and
transfer from observation home to
special home once investigations are
over. Yet, there never took place a
medical check-up. Nor were neces-
sary procedures acted upon. No
vocational training was ever held,
nor was basic schooling provided to
Carine, thereby violating her Right to
Education. Moreover, the very purpose of being in a "correctional" or
rehabilitative institution was not
served. Not to speak of paving her
way back to the mainstream, there
remains an ever-widening gap
between her and the society where
she has landed up. She didn’t have
the opportunity to indulge in any
other activity except for sleeping and
eating to her content, though food
being unpalatable for her, she often
preferred to skip it on her own
accord. The option of playing outdoors like other, albeit “mean” kids
of her age never really appealed to
her either.
In the observation home, she
managed to pick up a few words of
Hindi, where people addressed her
with one of her middle names "Pani".
They said it’s easy to remember
because it’s the word for water in
Hindi. But apart from that, she was
unable to communicate with anyone
beyond gestures.
Although she had initially refused
to associate with the Congolese
embassy because she was aware that
they represent the same brutal government that she had fled. Yet her
mother could not bear the thought of
her child being at the mercy of Indian
officials in "pathetically shabby settings". Worried about her mental and
emotional state, the mother gave consent to her daughter to accept custody of the Congolese embassy —
who had been trying to get her bailed
out and obtain her custody and care.
When this reporter went to visit
Carine at her custodian's house, she
looked well fed and happy. They
were given her custody on the conditions that they would provide her
with proper care, would not hand
her over to anyone's charge without
the permission of court, and her original passport would be retained by
the court to prevent her from escaping Indian borders. She is awaiting
the investigation officer's report
before she could be proven innocent
and set free. There is a procedure for
admonition but it is not supposed to
exceed 60 days. Any verdict in the
case is yet to be announced.
The UNHCR cannot take charge of
COMBAT LAW MARCH-APRIL 2008
FOREIGN VOICES
Travellers’ travails
Travails of trapped foreign travellers point to certain
grim facts about their life in prison. Some of them are
too conspicuous to be missed or ignored. Vulcanina
takes a look at them
Most foreign prisoners are languishing in Indian jails for years while their
cases drag on in various courts. Delay in deciding cases has been becoming a
norm rather than exception. Getting the insiders' view through talking to several former prison officials, including former inspector generals (prisons), certain
facts emerge that cannot escape one’s attention vis-à-vis foreign prisoners :
In the majority of trials that actually did take place, these witnesses were
hardly able to make the submissions they wanted to make before the court.
A communication gap whether with or without interpreters has been a general complaint among foreign prisoners. This minimises the possibility of
their getting a fair trial.
Most of these prisoners have committed non-violent crimes -- from peddling
narcotic drugs in violation of NDPS Act -- to overstaying in India to traveling
through forged passports warranting action under Passport Act.
Five to six of them are squeezed in together in eight by eight feet cells, while
their Indian counterparts would generally be confined in big barracks housing up to 200 inmates at a time.
In Tihar, since the Black population outnumbers the Whites, the latter are
alleged to have quite often been bullied by Blacks.
Most consume drugs regularly. They get drugs through Indian couriers with
the help of jail staff where the cost varies from inmate to inmate based on
their nationality and colour of skin.
Drinking water has to be bought. There have been deaths due to cholera and
due to poor medical facilities. Water is a serious problem for foreigners as
they don't have the same anti-bodies and cannot drink locally available tap
water.
Jail officers harass them for trivial matters and on one excuse or the other
push them into confrontation with other prisoners. Jail staff often provokes
members of different gangs, religion, etc, into fights against each other
where this can be directed against foreigners or they too get dragged into
this and face great risk.
Lawyers often desert them after taking fee from foreign clients on false
promises. Some of them are discouraged by their counsel to argue the cases
on their own.
There operates a flourishing drug-smuggling business wherein ingenious
ways of bringing in drugs were invented. They have the liberty to draw any
amount they want from their "prison property account" under the pretext of
giving lawyer's fee. Given the state of affairs in jail those who have money
are capable of virtually purchasing anything.
Basic needs like making phone calls to family and friends are unlawfully
denied yet made possible through greasing the palm of officials.
In essence, money plays an important part in interaction of foreign prisoners with prison staff — though all were doomed to sub-human living conditions
like never getting used to food given in jail, lack of visitors and other cultural
differences. Yet moneyed prisoners can get the best — they hire poor prisoners
as servants and can buy whosoever else could be influenced through money.
What else can ensure a comfortable living!
www.combatlaw.org
her because her status could not be
established as refugee. It causes fear to
think that the Congolese embassy
may have a stake at acquiring her
charge as it represents the very government that forced them to flee in the
first place. Questions like what would
happen to her if she is sent back to
Congo have hardly any answer.
Section 12(1) of the Juvenile
Justice Act (2000) clearly states that
the juvenile shall not be released if
there appear reasonable grounds for
believing that the release is likely to
expose her to moral, physical or psychological danger.
Article 21 of the Indian
Constitution guarantees "life" and
"liberty" to every "person", which also
includes "foreigners". It clearly states
that if there exists a "reasonable
apprehension" or a "well founded fear
of persecution" or a "clear and present
danger", foreigners will be entitled to
protection under this Article.
Although Carine has been granted conditional bail, her case is still
pending in the juvenile justice board.
She cannot leave the country to go
back to her mother. At this point, she
may be enjoying a peaceful existence
in India, but she is certainly not
growing as she ought to naturally in
her given situation. She does not go
to school, nor does she do anything
else that children of her age are supposed to do in order to become
responsible citizens.
„
Lured to cross frontiers,
Canadian Saul Itzhayek found
himself in police trap on IndoNepal border. Itzhayek has
become the first foreign prisoner
of Bihar’s Motihari Jail where he
awaits trial under appalling condi tions. Besides his own plight, the
arrest points to the larger prob lems that alien lands, laws and
climes pose to foreign prisoners.
93
TRIAL & EXECUTION
t has been 17 long years for
Perarivalan, one of the accused in
the Rajiv Gandhi murder case, as
he waits for the President of India to
give a final verdict. With the hangman's noose hanging ominously
before him, its sheer wait is as bad as
torture for him. Arivu (meaning
knowledge), as Perarivalan is known
to his friends speaks of his anguish in
having to wait under the shadow of
the gallows for years. "It would have
been better they had hanged me soon
after the court verdict."
On a recent visit to Central Prison
Vellore, I spent some time with
Perarivalan who has been on the
death row since January 1998 along
with Santhan and Murugan. I have
been close to Arivu and his family by
virtue of having political and ideological discussions. Moreover, I
I
Chennai. The accused were detained,
charged and tried under provisions
of the TADA. The convictions relied
heavily on confessional statements
made by many of the accused and
recorded by police following their
arrest. On May 11, 1999, a threejudge bench of the Supreme Court
confirmed the death sentences of
four of the 26 people convicted of
conspiring to kill Rajiv Gandhi at an
election rally in the southern state of
Tamil Nadu in May 1991. The four
accused, S Nalini, Suthenthirarajah
alias Santhan, Sriharan alias
Murugan and Perarivalan alias
Arivu, were originally to be hanged
on June 9, but the execution was
deferred after they filed a review
petition in the Supreme Court.
On appeal, the Supreme Court —
as there was no space in the TADA
Waiting for the
Hangman's noose
empathise with Arivu as he has is on
the death row. I was accompanied by
Arivu's father, Kuyildasan, a well
known rationalist poet and another
relative.
AG Perarivalan, a native of north
Arcot district, Tamil Nadu, alias
Arivu was only 19 when he was
arrested. As a young man, Arivu was
attracted to the cause of Tamil Eelam
and worked wholeheartedly towards
mobilising support for the Eelam
struggle. His only contribution to the
murder was that he allegedly knew
the actual perpetrators. The act
attributed to Arivu is that he bought
a nine-volt battery, which was
allegedly used to detonate the bomb.
In January 1998, Perarivalan was
convicted and sentenced to death
along with 26 others in the Rajiv
Gandhi murder case by the Terrorist
and
Disruptive
Activities
(Prevention) Act, 1987 (TADA) designated court specially established
within the Poonamallee jail in
94
Act for appeal or reference
to the High Court — pronounced a judgment
which effectively set free
19 of the 26 accused
while confirming the
conviction
of
the
remaining seven, among
whom three got their,
sentence commuted to
life. For the last four,
namely Nalini, her husband Murugan, Santhan,
and
Perarivalan,
the
Supreme Court passed both
the conviction and the sentence of death. Nalini's death
sentence was commuted to life
imprisonment by Tamil Nadu
Governor M Fathima Beevi in April
2000. Perarivalan, Murugan and
Santhan continue to await their fate
as their mercy petitions remain
pending before the President of
India.
The most significant part of the
Executing
Perarivalan,
convicted in
Rajiv Gandhi
murder case,
would be a
retrograde step for
human rights in
India, writes
Thiagu, who met
him in jail
recently
Supreme
Court's judgment is the ruling that
the killing of Rajiv Gandhi was not
an act of terrorism as defined by law,
and so the TADA cannot be applied
on this particular case. The killers
had no such motive. They just wanted to take revenge. As such, however
COMBAT LAW MARCH-APRIL 2008
TRIAL & EXECUTION
heinous the crime, it cannot be classified as a terrorist act and so the application of TADA was wrong.
However, the apex court did not find
it fit to quash the conviction, meted
out by the designated court on the
basis of evidence collected under the
TADA and in a trial also conducted
under the same TADA. It neither
ordered a retrial nor a reinvestigation
under the normal law. Under these
circumstances, to what extent is it
possible to rely on the confession
statements and other evidence procured under TADA and the convictions meted out be relied upon, especially when the sentence involves the
question of life and death?
While the Government of India
dilly: dallies over the mercy petitions,
Arivu, Murugan and Santhan look on
hopelessly. I meet a dejected Arivu.
He sits across the table and asks,
"Why, Anna, what are you looking at
so keenly?" I tell him: "I am seeing
myself in you." He, as also his father
understand what I am saying. I am an
ex-convict who spent 15 years of life
in imprisonment after my death sentence was converted to a life sentence.
Arivu is a reflection of my past.
Looking at his anguish in this constant waiting, Arivu's father tells him
not to lose patience. "Hasn't comrade
Thiagu spent 15 years in prison?"
Arivu shot back, "But he didn't have
to be in the condemned cell for so
long. Moreover he had the consolation of having done something and
paying for it, but I did nothing."
Arivu has been steadfast in his
plea of ignorance. Even the confessional statement extracted from him
by the special investigation team of
police, he claims, contains nothing to
prove his guilt of being an accomplice
in the murder of Rajiv Gandhi. A fact
that he has reiterated in his letters of
appeal to the President of India, in his
book entitled "An Appeal From the
Death Row" which has forewords by
Justice VR Krishna Iyer, Justice H
Suresh, and Kuldip Nayyar among
others all of whom have forcefully
pleaded for saving the life of Arivu
in particular and for the abolition of
the capital punishment in general.
Arivu, Murugan and Santhan
deserve to be saved from the death
rope on the following grounds
TADA has been widely criticised
nationally as well as internationally
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as it contravenes several international standards for fair trial, including
the holding of trials in camera and
non-disclosure of the identity of witnesses. Its fallacies have been recognised by the Indian Parliament which
concurs with a very strong public
opinion and a deep human rights
concern to allow TADA to lapse. All
actions taken under such a draconian
law should be viewed with suspicion
and thoroughly reviewed. Awarding
Sonia wrote to the
President to grant
pardon to those held
responsible for
Rajiv's death, but the
government remains
unmoved
a death sentence based on the
authority of such a dark law is an
infringement on human rights.
The apex court has clearly ruled
that this particular case does not
meet the requirements of TADA.
Though the Supreme Court failed to
take this verdict to its logical end of
ordering a reinvestigation and retrial, the President can invoke his constitutional powers (Article 72) to
make amends by commuting the
death penalty, awarded on the basis
of evidence procured under TADA.
Arivu has remained in the shadows of the gallows for an endlessly
long period of time. This is itself a
painful punishment. Even life
imprisonment is shorter. Living
under the shadows of an imminent
death for so long should be rated a
harsher punishment than death itself
and a worse violation of human
rights. Moreover, the great agony of
Arivu's aged parents, his educational
attainments in prison, his well-disciplined prison life should also be
taken into account.
Conclusion
Even though Sonia Gandhi herself
wrote to the then President of India
requesting him to grant pardon and
clemency to those persons held
responsible for her husband's tragic
end, the Government of India remains
unmoved and undecided. The Tamil
Nadu Chief Minister M Karunanidhi
declares himself to be a principled
opponent of the capital punishment.
He could easily save Arivu and the
others as it is within his powers to save
them under Article 161. However
nothing moves. The world seems to be
standing still for 17 long years for
these three young men. Their passionate appeal seems to be a cry in the
wilderness. They are badly dejected.
They believe in nothing, they trust
nobody. They have reached a stage
where they say, "Please do something
to end this agony at the earliest if you
can, or let us be hanged."
As the government stalls, the question is why this indecision. What is the
politics behind it? Reactions vary
amongst the ruling elite and the opposition. A substantial section of the ruling class regards these executions as a
key test for further political crimes, a
deterrent punishment for future political offenders. For some implementing
the death sentence would be a means
to perpetuate the memories of the
Rajiv killing for ever for the sake of the
vote bank and alliance politics. There is
also the aspect of converting the three
into martyrs in the eyes of the Tamils
across the world by hanging Arivu and
the others. This could cause quite a few
fissures among the present and
prospective partners of the ruling
alliance, and could dent Sonia
Gandhi's humanistic image. It could
also be very difficult to explain the
unduly long delay in taking such a
decision. On the other hand, if the government shows clemency to the Rajiv
killers, it could be construed as a concession if not surrender to the terrorists
and the LTTE in particular, a situation
which political opportunists like
Jayalalithaa would exploit. This seems
to be the political dilemma faced by the
UPA government. This more or less
applies to the Afzal Guru case too. As I
take his leave, I try to explain all this to
Arivu and assure him that we shall do
our best to rescue him and his coaccused from the noose.
— The writer is an ex-Naxalite and
was imprisoned after the annihilation of
what he calls a 'class enemy' in 1970
when he was 20 years old. He was sentenced to death which was later reduced
to life and he was released in 1985.
95
TRIAL & EXECUTION
'Take juvenile off the gallows'
Over a year-and-a-half ago, human rights lawyer Colin Gonsalves worte to President of
India to seek pardon or commutation of death sentence passed by trial court and
confirmed by Supreme Court in the Om Prakash Lakra case who as per his school
certificate was a minor at the time of triple murder allegedly committed by him
April 29, 2006
The President of India,
Rashtrapati Bhavan,
New Delhi.
Sir,
Om Prakash alias Raju alias Israel Lakra is a convict
prisoner presently lodged in Meerut Central Jail. He has
been sentenced to death. His parents Zaccarias Lakra and
Margaret Lakra have already petitioned you under
Article 72 of the Constitution of India to commute the
sentence of death confirmed by the Supreme Court of
India.
There are however, certain developments that have
taken place after the letter written to you by the parents,
which I desire to put on record to enable you to make a
proper decision on the basis of law and your conscience.
It is alleged by prosecution that on 15.11.1994 Om
Prakash murdered three members of a family in Vasant
Vihar area of Dehradun. The learned Sessions Judge
Dehradun convicted him under Section 302, 307 IPC and
sentenced him to death. The sentence of death was confirmed by the High Court.
The trial court while hearing the accused on the question of sentence noted the submission of the accused that
96
his age was 17 years on the date of occurrence and then
answered the same as follows : “his attention was drawn
to pass-book and the cheque-book and was appraised of
the fact that the account could have been opened by him
only if he had been major. Then he conceded the factum
of majority on the date occurrence.”
The contention regarding the age of appellant was also
dealt with by the Supreme Court (2003 (1) SCC 648) at
page 659 : “Regarding the age of the appellant, a contention has been raised that he was juvenile at the time of
commission of crime on 15.11.94 because he gave the age
as 20 years in his statement recorded under section 313
CrPC on 07.3.2001. Apart from the fact that on behalf of
the appellant no proof was adduced regarding his
age…”
THIS CONCLUSION WAS REACHED BY A TWO
JUDGE BENCH OF THE SUPREME COURT OVERLOOKING THE SCHOLL CERTIFICATE PRODUCED
WITH THE MEMORANDUM OF APPEAL. THIS IS
WHAT HAS CAUSED A GRAVE MISCARRIAGE OF
JUSTICE.
The incident is of 15.11.1994. The date of birth of the
accused Om Prakash is 04.01.1980. If this is correct then
his age on the date of the incident would be about 14
years and 11 months. He would thus be a juvenile withCOMBAT LAW MARCH-APRIL 2008
TRIAL & EXECUTION
in the meaning of Section 2 (h) of
the Juvenile Justice Act 1986 which
defines “juvenile” as under:
“Juvenile means a boy who has not
attained the age of sixteen years or a
girl who has not attained age of eighteen years.”
If this is correct and the accused is a
juvenile then the accused cannot be
sentenced to death under Section 22
of the Act which is as under:
“Notwithstanding anything to the
contrary contained in any other law
for the time being in force, no delinquent juvenile shall be sentenced to
death…”
In Pratap Singh Vs. state of
Jharkhand ( (2005) 1 Scale 763) a constitutional bench of this court held as
under:
“The reckoning date for the determination of the age of the juvenile is
the date of an offence and not the
date when he is produced before the
authority or in the Court.”
Thereafter Review Petition (Crl.)
No. 273 of 2003 was filed in Criminal
Appeal No. 824 of 2002 and the same
was dismissed on 04.03.2003.
Thereafter Writ Petition (Crl.) No.
D20026 of 2004 was filed in this
Court. In the order dated 16.02.2005
this Hon’ble Court held as under:
“AS ALREADY NOTED THE SAID
CONCLUSION WAS REACHED BY
THE BENCH (OF WHICH ONE OF
US WAS A MEMBER) WITHOUT
LOOKING INTO THE SCHOOL
CERTIFICATE ANNEXED TO THE
MEMORANDUM OF APPEAL.”
“In view of the decision of this
Court in Rupa Ashok Hurra Vs.
Ashok Hurra ((2002 4 SCC 288) this
petiton under Article 32 is not maintainable. The appropriate remedy is
only to file a curative petition as per
the procedure indicated by this
Court in the said decision.
Accordingly we permit the petitioners to convert the present petition
into curative petition by making necessary amendments and following
due procedure.
THUS IT CAN BE SEEN THAT
TWO JUDGES OF THE SUPREME
COURT, NAMELY, JUSTICE P.
VENKATARAMA REDDI AND JUSTICE A.K. MATHUR ADMITTED IN
THEIR JUDGEMENT THAT AN
OMMISSION HAD TAKEN PLACE
BY THE COURT IN NOT LOOKING
AT THE SCHOOL CERTIFICATE.
www.combatlaw.org
In Rupa Ashok Hurra’s case, this
Hon’ble Court held:
“The upshot of the discussion in
our view is that this Court, to prevent
abuse of its process and to cure a
gross miscarriage of justice, may
reconsider its judgments in exercise
its inherent power…”
“It is neither advisable nor possible
to enumerate all the grounds on
The trial court while
hearing the accused
on the question of
sentence noted the
submission of the
accused that his age
was 17 years on the
date of occurrence
and then answered
the same as follows :
“His attention was
drawn to pass-book
and the cheque-book
and was appraised of
the fact that the
account could have
been opened by him
only if he had been
major. Then he
conceded the factum
of majority on the
date occurrence”
which such a petition may be entertained.”
THE CONDEMNED PERSON
WAS A JUVENILE AT THE TIME
OF COMMISSION OF OFFENCE
AND TEHEREFORE, CANNOT BE
SENTENCED TO DEATH. A
PURUSAL OF THE SCHOOL CER-
TIFICATE WILL SHOW THAT THE
DATE OF BIRTH IS 4.1.1980. IF
THIS IS SO, THEN AT THE TIME
OF THE COMMISSION OF
OFFENCE IN 1994 THE ACCUSED
WAS 14 YEARS OLD, I.E. LESS
THAN 16 YEARS OLD I.E. HE WAS
A JUVENILE. THIS CRUCIAL
PIECE OF EVIDENCE WAS NOT
BEFORE THE TRIAL COURT OR
THE COURT. NO COURT MADE
ANY ATTEMPT TO CARRY OUT
AN INDEPENDENT INVESTIGATION IN RESPECT OF THE DATE
OF THE ACCUSED.
DUE TO OVERSIGHT, THE
DOCUMENT WHICH PROVED
THE AGE OF THE ACCUSED WAS
EITHER NOT BROUGHT TO THE
NOTICE OF THIS HON’BLE
COURT OR IN ANY CASE NOT
CONSIDERED BY THE SUPREME
COURT.
Even the argument that a bankbook is conclusive evidence that a
person is an adult appears to be
incorrect. Banks are routinely opening accounts in the names of juveniles as long as their parents or
guardian is present.
IN BHOLA BHAGAT VS. STATE
1997 (8) SCC 720 HAD RAISED
THE AGE ISSUE IN A DIFFERENT
MANNER, WHEN THE STATEMENT OF THE ACCUSED 4
YEARS AFTER THE INCIDENT
WAS RECOGNISED AS A BASIS
FOR THE COURT TO ISSUE
DIRECTION TO HOLD AN AGE
INQUIRY, EVEN AFTER 4 YEARS.
DR. JUSTICE A.S. ANAND (FOR
HIMSELF AND JUSTICE K
VENKATASWAMI0 MADE THE
FOLLOWING
OBSERVATION
WHICH IS VERY PERTINENT FOR
THE PRESENT DEBATE:
“(W)E WOULD LIKE TO REEMPHASISE THAT WHEN A PLEA
IS RAISED ON BEHALF OF AN
ACCUSED THAT HE WAS A
‘CHILD’ WITHIN THE MEANING
OF THE DEFINITION OF THE
EXPRESSION UNDER THE ACT,
IT BECOMES OBLIGATORY FOR
THE COURT, IN CASE IT ENTERTAINS ANY DOUBT ABOUT THE
AGE AS CLAIMED BY THE
ACCUSED,
TO
HOLD
AN
INQUIRY ITSELF FOR DETERMINATION OF AGE … WE EXPECT
THE HIGH COURTS AND SUBORDINATE COURTS TO DEAL
97
TRIAL & EXECUTION
WITH SUCH CASES WITH MORE
SENSITIVITY, AS OTHERWISE
THE OBJECT OF THE ACTS
WOULD BE FRUSTRATED …”
Gopinath Ghosh’s case (1984 Supp.
SCC 228) the Supreme Court concluded:
“Even the appellant has given his
age as 20 years when questioned by
learned Additional Sessions Judge.
Neither the appellant nor his learned
counsel appearing before the learned
Additional Sessions Judge as well as
at the hearing of his appeal in the
High Court ever questioned the jurisdiction of the trial court to hold the
trial of the appellant, nor was it ever
contended that he was a juvenile
delinquent within the meaning of the
Act and therefore had no jurisdiction
to try him, as well as the court had no
jurisdiction to try him, as well as the
Court has no jurisdiction to sentence
him to suffer imprisonment for life. It
was for the first time that this contention was raised in this Court for
the first time to thwart the benefit of
the provisions being extended to the
appellant, if he was otherwise entitled to it.” (Para 10).
In Raj Singh’s case (2000 3 SCC 759),
the same point is raised, but the late
raising of the question of juvenility is
similarly not permitted to interfere
with the enquiry to establish the age
of the accused at the time of the commission of offence and the benefits of
the accused that such proof of minority entails in law.
The onus falls on the Court to make
an inquiry as to confirm the age of
the accused in cases of dubt is stated
in Gopinath Ghosh such that:
“WHENEVER A CASE IS
BROUGHT BEFORE THE MAGISTRATE … BEFORE PROCEEDING
WITH THE TRIAL OR UNDERTAKING AN INQUIRY, AN
INQUIRY MUST BE MADE
ABOUT THE AGE OF THE
ACCUSED ON THE DATE OF THE
OCCURRENCE. THIS OUGHT TO
BE MORE SO WHERE SPECIAL
ACTS DEALING WITH JUVENILE
DELINQUENT ARE IN FORCE. IF
NECESSARY, THE MAGISTRATE
MAY REFER THE ACCUSED TO
THE MEDICAL BOARD OR THE
CIVIL SURGEON, AS THE CASE
MAY BE, FOR OBTAINING CREDITWORTHY EVIDENCE ABOUT
AGE.”
98
In Santenu Mitra vs. State 1998 (5)
SCC 697, the following observation
of the court deserves consideration:
“We are of the view that the High
Court fell in error in not holding the
appellant to be below 16 years of
age on the date of the commission
of offence.”
In Rajinder Chandra (2002) it stated
that:
“…In our openion, the High Court
has not erred in arriving at the conclusion that it has reached and it
rightly interfered with the orders of
Whenever a case is
brought before the
magistrate ...
before proceeding
with the trial or
undertaking an
inquiry, an inquiry
must be made
about the age of
the accused on the
date of the
occurrence
the two Courts below because if
allowed to stand they would have
occasioned failure of justice.
5. It is true that the age of the
accused is just on the border of sixteen years and on the date of his
offence and his arrest he was less
than 16 years by a few months only.
In Arnit Das (2000) this Court has, on
a review of judicial opinion, held
that… if two views may be possible
on the said evidence, the Court
should lean in favour of holding the
accused to be a juvenile in borderline
cases.”
Section 32 of the Juvenile Justice
Act, 1986 provides:
“32. Presumption of determination
of age . – (1) Where it appears to a
competent authority that a person
brought before it under any of the
provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile, the competent
authority shall make due inquiry as
to the age of that person and for that
purpose shall take such evidence as
may be necessary and shall record a
finding whether the person is a juvenile or not, stating his age as nearly
as may be.
(2) No order of a competent
authority shall be deemed to have
become invalid merely by any subsequent proof that the person in
respect of whom the order has been
made is not a juvenile, and the age
recorded by the competent authority
to be the age of the person so
brought before it shall, for the purpose of this Act, be deemed to be the
true age of the person.”
This section casts an obligation on
the Court to make due enquiry as to
the age of the accused and if necessary by taking evidence itself and
record a finding whether the person
is juvenile or not.
The accused raised these issues
before the Supreme Court in
Curative Petition No. 20 of 2005 after
Justice P Vnekatarama Reddy and
Justice AK Mathur admitted in the
judgement that an omission had
taken place by the court in not looking at the school certificate.
In the said Curative Petition a
Counter was filed by the State of
Uttranchal confirming that the
school certificate was genuine and
that the date of birth of the accused
was 04.01.1980 which would make
him about 14 years and 11 months,
clearly a juvenile within the meaning of the Juvenile Justice Act, as on
the date of the incident i.e. 15.11.
1994.
Despite this grave error committed by the Apex Court. The Curative
Petition
was
dismissed
on
06.02.2006 by a cryptic order giving
no reasons.
It is respectfully requested that
you, Sir exercise your power under
the Constitution and commute/pardon the accused.
Sincerely,
Colin Gonsalves
Encl. Records and proceedings in
Curative Petition (Crl.) No. 20 of 2005.
COMBAT LAW MARCH-APRIL 2008
WORDS & IMAGES
A One-woman-show
Kiran Bedi's stint as inspector general of police (prisons) in Delhi might have been shortlived. Yet she wrote a rather long account of this in what looks like a perfect act of “oneupwomanship”. Aanchal Khurana reviews her book on Tihar Jail
iran Bedi's It's Always Possible:
Transforming One of the Largest
Prisons in the World is essentially a threefold thorough overview
of her two-year tenure as inspector
general (prisons) or IG(P). She
recounts step by step the state of
Tihar as she witnessed it when she
first arrived, the changes introduced
by her, as well as what still prevailed
thereafter.
It doesn't take one long to notice
right off the bat that the entire
account is a one-woman show — the
book revolves around Kiran Bedi —
her personal observations, experiences, perceptions, reformatory
efforts, challenges and victories. Not
surprisingly, her picture is unmistakably on the cover-page of her book.
This narrative wisely combines
text with simple flair — original samples of letters written by prisoners,
execution orders by the prison
administration were used as visual
aid. There may be an absence of
colour and images but at the end of
each chapter, there is a brief synopsis
accompanied by an illustration —
although this also gives an informative text-book like touch to it.
Tihar Jail is said to have virtually
been turned into an "ashram" simply
by way of using methods of holistic
correction — first identifying what
she saw — what had existed previously (prison, systems, prisoners) —
spotted what was wrong and the
extent to which it was wrong — reasons for it being wrong — how they
were dealing with it — and where
they arrived.
At one point, Kiran Bedi makes
quite a shocking observation — at
least to my non-Indian understanding— while comparing Indian prisons to foreign prisons in the west, she
observes that criminals there were
perceived with mistrust — such as by
stripping a person naked to check if
they are carrying any drugs, or by
keeping them in isolation for several
K
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days together just to see if they eject
any drugs from their body. Whereas
in India, she claims that prisoners are
looked at with an underlying sentiment of compassion and inherent
belief in non-violence, forgiveness
and community participation. She
backs this argument by claiming that
prisoners in India are allowed out in
open compounds and courtyards
from time to time.
As Bedi describes it in her own
words, the prison was a "total mess"
plagued by myriad problems ranging from the uncertainty of basic
civic amenities like scarcity of water,
blocked sewers, stinking toilets,
unhealthy cooks, and at best edible
food to the intimidating predominance of undertrials (only 10%
Book :
It's Always Possible:
Transforming one of
the largest prisons in
the world
Author: Kiran Bedi
Publisher: Sterling Publishers
Private Limited
Price:
Rs 450; Pp 410
BOOK REVIEW
were convicts while others had been
awaiting trial anywhere from weeks
to years). These severe flaws made
the average prisoner malnourished
and susceptible to frequent epidemics.
The main inherent follies in the
system as she outlines started with
highlighting the fact that the individuals responsible for the institution
neglected the institution to a large
extent. They rarely ever paid a visit
to the jail premises and whenever
they did, it was accompanied by the
traditional ceremonies that resembled those from the era of subservience of the days of the British
Raj. The VIPs were taken around
only in certain areas that were
groomed beforehand for the sole
purpose of the visit whereas subhuman conditions persisted in the rest
of the jail. They were kept "out of
bounds" or cached under the pretext
of security reasons. To add to that,
the accompanying media team portrayed a glamorous picture and produced only statements made by these
so-called VIPs on the subject of
prison reform and the rehabilitation
of prisoners.
However, the root cause of all this
rot seemed to be none other but the
overcrowding. The obscenely large
number of inmates was and still continues to be a major problem. In a
space for a sanctioned capacity of 2,
273 inmates, a staggering 7, 200 were
detained in these four prisons inside
Tihar. But this substantial increase
had taken place in the last decade
thanks to the new parliamentary ruling for crimes against women and
narcotic offences. Although the
arrests were increased, the prison
capacity continued to remain the
same. Shockingly enough, 90 percent
of the prisoners were awaiting trial
with periods ranging from weeks to
years — a clear reflection of the
handicap of the judiciary.
There was a serious lack of transparency in the system overflowing
with a stark prevalence of corrupt
prison administrators who lacked
any degree of accountability. The
warders were there to make money.
The communication gap between the
prisoners and the decision makers
seemed impossible to bridge. The
grievances and appeals could just
never make it to the right hands.
99
WORDS & IMAGES
Rampant corruption was unsurmountable, courtesy the flourishing
separation between the haves and
the have-nots existed. Not surprisingly, it gave way to them conniving
and cooperating with the criminals.
A lot of it came from desperation. A
severe shortage of staff combined
with ill-equipped jailors with tiring
shifts could not help the situation in
any way.
Petition Box: is described to be a
huge success with people expressing
in writing their personal grievances
against courts, police or lawyers, asking for legal aid, communicating
their dissatisfaction with the food
and sanitation situation and their
other needs. These petitions were
then kept on file for free access by
visitors, test-checkers, etc and another two copies would go to the DIG
and IG. This played a significant role
in combating criminal intentions,
redress grievances, interaction, and
in reducing complaints to courts
against officials and enforced checks
and balances of administrators in
general.
The medical system was in shambles. Shortage of medical supplies
and staff, outdated tools, indifferent
doctors that delivered unsatisfactory
treatment to prisoners contributed to
the ailing condition of the institution.
Proper medical services were introduced such as availability of additional doctors, dispensaries, replacements of dysfunctional medical
equipment with the help of outside
hospitals and NGO's.
Literacy programmes: there was
wide contribution from several
organisations, schools, volunteer
teachers, publishers in providing
educational material, vocational
training, religious teachings and
financial assistance in the form of
scholarships and donations. Inmates
could now earn degrees from external institutions while successfully
completing an academic programme
inside jail.
Family programme: people were
put in a “family” as they called it that
comprised of both convicts and
undertrials. They were supposed to
look after and keep track of each
other at all times.
Drug smuggling was montitored, drug de-addiction programs
including meditations were intro100
duced - a comprehensive plan was
put in place to control supply and
demand of drugs inside the prison
by opening treatment centres inside
jail. Vipasana, a self discipline exercise, worked on ways to transform
thought-action processes which led
to crime to a thought-mind-intellect
route.
Media seemed to have been using
the gloomy and gory situation of
Tihar to their advantage. This practice was discouraged and amended
by making them work in line with
the prison reabilitation objectives.
Media was made into a tool to tell
eyewitness accounts to the public.
This not only made the public and
other pressure groups aware of the
realities but also raised concerns
within the government to carry out
the required systemic changes. In
addition, it called for participation
and mobilisation from the public.
What's also highly
impressive is that
Kiran Bedi's 3C
model has been
incorporated in the
recently proposed
New Prison Act to
replace the 107year-old prison act
that has existed
since 1894
Faithful staff was too often made
away with because they posed a
security threat to the wrong-doings
of the corrupt prisoners and staff.
Convicts in clerical jobs were easily
prone to leaking information when
bribed.
In an effort to combat this, rigid
hierarchy and accessibility was broken down among the roles of the government, IG, DIG, superintendent of
jail, deputy superintendent in jail and
numerous head warders and
warders. A number of panchayats
were formed to coordinate the web of
activities and groups — medical panchayat, sports panchayat, ward panchayat and legal aid panchayat to
name a few. This gave prisoners selfgovernance and collective responsibility. Though it is only next to impossible to believe that this functioned
peacefully and efficiently, what is not
difficult to conceptualise is that it certainly was able to give them a sense of
community to keep alive their will to
live and move forward.
Despite the soaring rot that existed for the general lot, the moneyed
inmates always managed to get the
best of everything. This applied especially to "high security" or hardened
criminals, who managed to lead a
luxurious lifestyle with exceptional
treatment in terms of food, visiting
hours, forged medical certificates,
and could plot and carry out crime
from inside the prison.
Most
adolescent
prisoners
believed in having luxuries without
work and had been looking for shortcuts to get rich in most cases. They
were rebellious and unrepentant and
especially vulnerable of becoming
criminals of larger magnitude once
released from prison. Foreign prisoners also faced significant hardships
peculiar to their unique situation due
to the language barrier, the cultural
differences and their inability to get
access to proper legal aid. Similarly,
women prisoners were found in no
less of an agonising condition. This
traditionally oppressed and neglected minority group is especially vulnerable to being lured into committing crimes and being sexually
exploited by law enforcement agencies. Women inmates were thus
empowered to become independent
through education, legal aid, banking and through participation in art
and cultural activities.
While there was a serious lack of
cohesion and transparency in the
functioning of the administrative
staff, each rank was given their
defined responsibility and their performance was followed up and evaluated. All inmates were made to
participate in decision making,
thereby enabling an interative decision making process. A visible system was established of "open punishments" and "open rewards",
COMBAT LAW MARCH-APRIL 2008
WORDS & IMAGES
which encouraged people to comply
with the reformatory efforts. All
news pertaining to the happenings
in prison was heralded to the entire
prison body. Information was made
to disseminate widely pertaining to
all kinds of issues. They also organised for family to come and visit on
a designated day in the week. Media
was made to participate - which in
turn put pressure on judges to
appoint a committee to find out who
among undertrials needed to be
released on bail.
Community development was a
key factor for this change to happen.
There were over 300 NGOs involved
in trying to contribute to the reformation and rehabilitation of the inmates
- each in their own unique way.
Bedi's work juxtaposes a stark
contrast - first painting a fairly bleak
picture then demonstrating aspects
of her undaunted leadership against
all odds (massive opposition from
politicians and others who were
against the changes being made to
the status quo).
That that, it all sounds a little too
good to be true. This is not to say that
there are discrepancies in the facts.
Only, a very unrealistically rosy picture has been painted with overstated facts and glorious descriptions.
What's also highly impressive is
that Kiran Bedi's 3 C model has been
incorporated in the recently proposed New Prison Act to replace the
107-year-old prison act that has existed since 1894. Sadly though, the
prison management has got out of
gear yet again - one still hears of continued unnatural deaths in Tihar, corruption, and crimes being operated
from behind the bars.
„
Hope and Despair in Iran
Over a quarter century has elapsed since the clock was set back by 1400 years in Iran,
when a people's vehement struggle against a monarch was hijacked by Ayatollahs who
turned out to be medievalists. As a result many Iranians were forced to resume the
people's fight. One such person is Nobel laureate Shirin Ebadi who writes about what
befell Iran and Iranians in her book, Iran Awakening. A review by Mallika Iyer
rom prison to Peace Prize: one
woman's struggle at the crossroads of history' reads the
front cover of the book 'Iran
Awakening'written by Shirin Ebadi,
winner of the 2003 Nobel Prize for
Peace, along with Asadeh Moaveni.
The book, about the life and struggle
of Ebadi, a human rights lawyer and
ex-judge in Iran, begins with a chilling prologue -- one that I must refrain
from revealing in this book review,
lest it fail to have its desired impact
upon reading.
One of the most distinguished
female judges of the Tehran court,
she was stripped off her judgeship in
1980 and demoted to the post of a
clerk in the legal office by the followers of Ayatollah Khomeni on the
grounds that Islam did not permit
women to be judges. She felt naïve
then for having supported the 1979
revolution that saw the Shah being
overthrown and the heralding of a
new regime headed by the Ayatollah.
At that time, however, Ebadi like
most others in Iran, including secular
minded nationalists, socialists and
Marxists identified with the opposition, but only till the Shah was out in
what looked like a coup of sorts. It
did not take long for Iranians to learn
that they were drawn in by an oppo-
'F
www.combatlaw.org
sition that was to put their country
through dark and difficult times.
Islamic law and the Islamic penal
code were imposed in Iran by the
clerics without a debate or a vote. The
value of a woman's life was now half
that of a man's, a woman's testimony
in court as a witness to a crime counted only half as much as that of a man,
a woman required her husband's per-
Book :
Iran Awakening: by
Shirin Ebadi and
Asadeh Moaveni
Author: Random House
mission for divorce, among other
things. 'The laws, in short' says Ebadi,
'turned the clock back fourteen hundred
years'.
With the revolution still simmering, Saddam Hussein decided to
attack Iran in September 1980. The
war compelled the dissidents of the
new regime to support the government against an invading tyrant. In
order to inspire young men to volunteer for the warfront, Ebadi says 'a
cult of martyrdom emerged that glorified
human sacrifice in the name of Islam'.
The assassination of her young
brother-in-law left a deep impact. A
17-year-old, attracted to the MKO
(the Mojahedin-e-khalgh organisation), a guerrilla movement in Iran
that later became a cult, was arrested
and sentenced to 20 years in prison
for selling newspapers.
The liberal Iran in which Ebadi
grew up was a thing of the past and
the <komiteh> or the morality police
arrested and harassed women for
offences such as not covering their
head or wearing slippers instead of
shoes on the pretext of improper
Islamic dress. Friends and family
slowly began to move out of the
country, they said for the sake of their
children, even as Ebadi persuades
them to stay for the sake of Iran. In
1992, when the judiciary relented and
permitted women to practice law,
Ebadi took to defending women, discriminated, victimised and deeply
marginalised under the new Islamic
law.
101
WORDS & IMAGES
In narrating one of the most
shocking cases she was involved in,
Ebadi speaks of the rape and murder
of an 11-year-old girl. The men
found guilty were arrested and sentenced to jail. Under Islamic law, the
family of a victim of homicide had
the option to choose between legal
punishment and financial compensation called blood money. As the life
of a woman was half that of a man's
under the new system, the judge
ruled that the blood money for the
two guilty men was worth more than
the life of the murdered 11-year-old
girl and so ordered the family of the
little girl to pay for the execution of
the culprits! The girl's father sold all
his possessions including his hut
and agreed to sell his kidney to
reclaim his honour and have the guilty
executed. The case was re-opened
and argued by Ebadi, during which
she was rebuked by the judge for
criticising Islamic law. The court
overturned the sentence, acquitted
the culprits and what's more, held
the girl's mother in contempt of
court for shouting out profanities
during the trial.
The book illustrates poignantly
how life was lived amidst the several
crossfires and conflicts that characterised society in Iran in the last three
decades. The revolution that ended
the Shah's regime, the long war
between Iran and Iraq, the internal
conflict between the MKO and the
government and amidst these the
continuous struggle for equality of
women in the Ayatollah's Islamic
Republic of Iran.
The Nobel Peace Prize came in
2003 as a fitting tribute to a life and
career spent in fighting for the rights
of ordinary Iranians. Ebadi sees that
as recognition of her belief in the positive interpretation of Islam and as
she puts it 'that freedom and human
rights were not perforce in conflict with
Islam'. Overwhelmed by the reception she got at the Tehran airport
upon her return home, particularly
from women thronging to get a
glimpse of her, she recollects that the
last time such a great mass of
humans had descended upon the airport was in 1979 and the person they
had come to receive was Ayatollah
Khomeni.
In a touching end, she says 'There
are times when I pause and contemplate
slowing down. I remember that I scarcely enjoyed my daughters' childhoods….
Now that I have realised this, they have
grown up and gone, and so I contemplate
slowing down a little just for myself. I
harbour no illusion of being able to retire,
for that would mean that Iran has
changed, and that people like me are no
longer needed to protect Iranians from
their government. If that day comes in
my lifetime, I will sit back and applaud
the efforts of the next generation from the
seclusion of my garden. If it does not, I
will continue as I have done, in hopes
that more of my fellow Iranians will
stand at my side.'
From shocking tales of repression
to inspiring ones of hope, this book is
a fascinating look at the life and
times of a nation through the eyes of
a free-spirited woman who just did
not relent.
„
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·ð¤ßÜ ·¤æò•ÕñÅU Üæò (Combat Law) ·ð¤ Âÿæ ×ð´ ÖðÁð´Ð
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§ü×ðÜ - [email protected], [email protected], [email protected]
ßðÕâæ§ÅU-www.combatlaw.org
102
COMBAT LAW MARCH-APRIL 2008
GUEST COLUMN
Ebb and flow of greed!
Oblivious to the destruction of livelihoods and habitats, a discredited hydroelectric
project that was discarded 15 years ago has been revived in Nepal. Advocate and human
rights activist Gopal Siwakoti 'Chintan'discusses in this column the issues kicked off by
the reincarnated Arun-III project
epal has huge water endowments. Yet, it needs to that threatens to destroy the country's economic potential
maintain them and preserve its rich biodiversity and environment by placing it as an exploitable resource
and complex ecosystem. This is also important for at the disposal of state-patronised market forces. In the
meeting the drinking water and energy needs of its peo- process, Nepal's already weak sovereignty has been furple. Once used carefully in a sustainable manner, this ther compromised.
water can also be used for hydropower generation and
In the name of economic/trade liberalisation and forirrigation as per its domestic requirement. Trans-bound- eign direct investment, Nepal's rivers are being sold out
ary rivers, such as the Koshi, Gandaki, Karnali, Mahakali to Indian or other foreign interests. There have been no
and others that flow through Nepal and India, should consultations with the local people who have maintained
first be conserved to maintain their essential hydro-eco- and conserved these resources vibrantly for generations
logical character and only within this framework of and the public who are keen to participate and contribute
preservation can they be explored for shared develop- in the development debate in the era of a changing demoment benefits and prosperity on equal terms and condi- cratic Nepal.
tions between the countries concerned. The environmenThe most recent instance of this is Nepal's controvertal criterion should be the sacrosanct principle to which sial Arun-III Hydroelectric Project situated in the eastern
all other considerations must be subordinated.
district of Sankhuwasabha on the Arun river that origiIn relation to trans-boundary water
nates in the Tibetan region of China.
courses, to the extent that any developmenThis project was first proposed in the
GUEST
tal interventions are envisaged on them,
early 1980s. Drawing inspiration from
COLUMN
small upstream nation-states such as
the Narmada Bachao Andolan in India
Nepal, with weak domestic capital formaagainst the World Bank-funded Sardar
tion and lesser necessity to indiscriminateSarovar Project at that time, a large
ly exploit natural resources to fuel producnumber of Nepali activists and experts,
tion and consumption, should be cautious
including those from Arun Valley itself,
in inviting foreign capital and technology
successfully launched massive campurely for satisfying the insatiable appetite
paigns in 1993 against the World Bank,
of other countries. This is as much an issue
challenging the project's viability mostof the national sovereignty of an indepenly on economic and social grounds.
dent country like Nepal as it is about proDamage to the environment was an
tecting that part of nature that is under the
issue but it was not the primary focus.
trusteeship of the Nepali people.
Economic factors, in fact, dominated
The principle of national sovereignty
the debate then. The lending conditionrequires that foreign participation is the
alities imposed by the World Bank as
Gopal Siwakoti 'Chintan'
choice of last resort, to be opted for only if
the project's chief financier were so
it is the case that the proposed project is
severe that Nepal, which had by the
absolutely essential for Nepal, that it will
1990s entered the phase of multi-party
benefit Nepal, and that Nepal does not have the technical politics, would have been reduced to a colony with no
and financial capacity to execute such a project indepen- power to decide its annual budget, compelled to introdently. The principle of national trusteeship of natural duce massive cuts in social sector spending, forced to
endowments requires that the principle of national increase electricity tariffs up to 300 percent or more, and
sovereignty is absolute and this sovereignty is exercised seek approval from the Bank for building hydro projects
in the interest of protecting that endowment.
beyond 10 megawatt capacity, and so on.
Unfortunately, the proprietors of the Nepali State, the
However, there were procedural grounds also on
ideologues of global developmentalism in multi-lateral which the project was opposed. Though it is located in the
financial institutions, their intellectual clients together lowest valley on earth sustaining very rich biodiversity,
with the subservient capitalists of Nepal, the drive of no proper environmental impact assessment was conIndian capital to find avenues for investment, the quest of ducted, no mitigation plans were in place, very little cash
western countries to offload infrastructure technology, compensation was envisaged for traditional farmers who
and the desire of the Indian state to dominate Nepal could disappear from the scene after sometime, no prothrough every available means, have combined to assert a tection and care of the large indigenous and ethnic comparadigm of hydropower development of Nepal's rivers munities and their culture was ensured, no employment
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103
GUEST COLUMN
guaranteed for the locals and all
work was to be done by foreign companies while Nepali engineers and
experts were ignored.
In short, Arun-III was going to
produce arguably the most expensive electricity in the world at a monumental human and natural cost and
was to be foisted on predominantly
urban consumers. Since this was
called development it was ostensibly
beyond criticism on both empirical
and
conceptual
grounds.
Nevertheless, undaunted by the
powerful cartel of interests supporting the project, opponents of the project challenged it in the Supreme
Court of Nepal. In response the Bank
established
an
independent
Inspection Panel and the campaign
against project won on all fronts,
from right to information and accepting the validity of societal concerns.
As a result of massive national and
international pressure, the World
Bank withdrew from Arun-III in
August 1995. This was then a major
global victory for all those who were
opposing the World Bank and corporate-led dams and other infrastructure projects around the world.
Arun-III dropped off the radar,
though there were periodic but
abortive attempts by the Asian
Development Bank and the now
bankrupt Enron Corporation of the
US to revive it. It suddenly surfaced
without warning when the seven
party interim coalition government,
with no popular mandate, handed it
over to the notorious Indian company, Sutlaj Jal Vidyut Nigam recently.
As per the terms of the agreement,
Sutlaj will provide Nepal free 21.9
percent of the 402 megawatts of
electricity to be generated from the
project and export the rest to India.
What is important to note is
whether and how this company
with a very poor record of dambuilding in India will comply with
all the concerns that were voiced
when Arun-III was first proposed.
The project has passed from the
hands of the World Bank to Sutlaj,
but for the rest there is no difference
between Arun 3-I and Arun 3-II.
Therefore, the issues to be raised in
the current campaign against the
project will be no different from the
ones raised originally, with the
additional point that the govern104
ment that has taken the decision
now is not constitutionally empowered to do so, since it is only an
interim government that cannot
commit a properly elected government to this decision.
In this mysterious and surreptitious deal, the government of Nepal is
the main culprit. The project has been
negotiated with Sutlaj in-camera. No
laws of the country were followed
and the agreement relies only on
some arbitrary provisions prepared
by an ad hoc working group constituted by the interim government. To
cap it all there was not even the eye-
In the name of
economic
liberalisation and
foreign direct
investment, Nepal's
rivers are being sold
out to Indian or other
foreign interests.
There have been no
consultations with the
local people who have
maintained and
conserved these
resources vibrantly
for generations
wash of a nominal tendering process!
The project agreement is constitutionally flawed on one very serious substantive ground. The project
agreement has been signed without
making any provision for its
approval by the current Parliament
as provided under Article 156 of the
Interim Constitution. Nepal's most
active public interest campaign
group, Water and Energy Users'
Federation (WAFED, www.wafednepal.org) is leading the campaign
now for the cancellation of this deal
until all the above concerns are
immediately addressed, reforms
made and the rights and interests of
the local indigenous/ethnic communities and general public are guaranteed. As the government has already
declined to furnish the necessary
information regarding the project in
gross violation of the provisions of
the newly enacted Right to
Information Act, 2007, WAFED is
now preparing to move the Supreme
Court of Nepal demanding a court
order for the submission of the project agreement for approval or disapproval by Parliament before any part
of the contract is implemented.
As part of the future campaign
plan, a group of Nepali and Indian
activists made a long tour all over
India recently, met with groups and
movements from Kerala, the
Narmada Valley and Delhi who are
campaigning against large dams
and special economic zones. The
activists are jointly preparing for a
massive campaign against Sutlej as
well as the reincarnated Arun-III
project this time soon as the problems in both the countries with
regard to such projects are basically
similar.
There have been ill-informed
arguments among a section of the
Nepali intelligentsia that the campaign against Arun-III in the 1990s
has paved the way for the project to
be handed over to India. For those
who are against the projects on substantial grounds it matters little
whether the project is implemented
by the World Bank, or an Indian company or a Nepali company. What
matters are the core issues that were
raised at that point, relating to the
economic feasibility, compensation/
rehabilitation and serious environmental damage that will be caused
by the project.
Be it in India or any other country
of South Asia, in the name of economic development and growth,
people and the environment are
being destroyed indiscriminately to
pander to the profits and lifestyles of
the affluent. The time has now come
for all South Asians with conscience,
independent of nationality, to come
together on joint platforms to protect
the vulnerable people and eco-systems of the region. A river is not an
exhaustible resource and the people
are not perpetual playthings.
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COMBAT LAW MARCH-APRIL 2008