By Bijo Francis, Advocate, Kerala, India
October 7, 2003
The condition of the jails in India is deplorable even in comparison to any of its other basic public facilities. The money spent on jail reforms and development of their basic amenities is negligible by comparison to the amount spent renovating the residences of “honourable” ministers and restructuring their legislative assemblies. The government of India organizes welfare schemes for cows, but ignores the plight of millions of citizens languishing in custody under horrifying conditions. It is common to find convicts and pre-trial prisoners held together in crowded cells, without proper facilities for basic human existence like fresh air, moving space, decent food, clothing, medical attention and communication. Many experience murder, torture and other abuses at the hands of cellmates and the authorities. This article outlines just a few of the daily abuses that go on within India’s prisons, based on the personal observations of the author, and authoritative accounts by others.
The Prisoners Act of 1900 (Act No. 3 of 1900) regulates India’s prisons and all aspects of prisoner management to this day. State governments may also legislate wherever permitted by this Act. Apart from the Prisoners Act, all states except for Nagaland have acts on children that provide for management of juvenile prisoners.
Despite having legislation to protect juvenile prisoners, children committed to prisons in India experience extreme cruelty and neglect. Many are locked away with hardcore criminals; by the end of their sentences they have been molded into repeat offenders. These children may be sexually abused and compelled to do hard labour. Often they must work alongside elder convicts, who make the young ones do the heavy work allotted to them. This happens in connivance with jail officials. It also goes on despite a Supreme Court ruling that care be taken to ensure such practices do not occur:
There is possibility of contact between the hardened criminals and the juvenile delinquents if there is no proper segregation in assignment of work. We direct that due care shall be taken to ensure that the juvenile delinquents are not assigned work in the same area where regular prisoners are made to work. Care should be taken to ensure that there is no scope for their meeting and having contacts… (All India Reporter 1988, Supreme Court, p. 414)
Legal provisions for counseling of children are often ignored. The government does not concern itself with appointing mental health professionals to vacant posts, and where it does invariably the persons filling them are inexperienced and ill-motivated, and so the very purpose of counseling is defeated. Children are frequently denied access to their parents, causing unnecessary mental trauma. It is also common for prison officials to demand ‘gifts’ from parents coming to meet their young ones.
India’s jails serve as lodging and recruitment centres for organized criminals. This is not merely the case after convicts are released at the end of a sentence: even while imprisoned, privileged inmates may be set free to go commit an offence and come back. Obviously, this is only possible with the knowledge and blessings of the prison officials, many of whom are on criminal payrolls. Corrupt prison officers also arrange preferential treatment for prisoners with connections to crime bosses. Such treatment may be the provision of entertainment—including sexual pleasures, often at the expense of another inmate’s liberty and body—unrestricted movement inside the jail, and uninterrupted visitor sessions. Meanwhile, common convicts in the same jail will be denied even basic facilities.
This writer has himself witnessed organized criminals flouting prison regulations. On one visit to Viyyur Central Jail, Kerala, to interview a prisoner in judicial custody, it was astonishing to find the prisoner sitting on the edge of the jail warden’s table. He was an affluent person facing an investigation on a charge under the Explosive Substances Act. He was being given special treatment together with two liquor barons who were in custody for having laced their local brews with a medical sedative, diazepam. Together these three were making a mockery of the entire system. Their food was bought from outside, and included a select menu from the best hotels in town, a share of which went to the officials and other designated inmates. The prisoner admitted spending a lot of money on food, since the number of people he had to cater for was a bit large, but said he was “managing” with some help from his two peers. Additionally, the three enjoyed freshly ironed clothes brought from home twice daily, the use of mobile phones, and comfortable beds with pillows and mosquito repellants. Meanwhile, other prisoners under petty charges were sleeping on the floor with nothing provided.
Jail rules often provide for inspections by higher officials, and sometimes by judges or the State or National Human Rights Commissions. During these inspections, however, inmates are not in a position to make complaints, since jail officers accompany the visitors. Anyone daring to make a complaint faces the consequences once the inspection is over. In a case reported from the Viyyur Central Jail, contraband drugs were allegedly seized from a convict. However, at the trial none of the prison officers could explain how the accused might have come into possession of the drugs. The defense counsel argued that the accused was being falsely implicated because he had tried to lodge a complaint about prison conditions when a local magistrate made a visit to the jail. The judge acquitted the accused and blamed the jail authorities for victimizing inmates who dared to complain. He urged the government to take adequate steps to put an end to this practice.
In Kerala, every jail houses a complaint box. The lock and key of the complaint boxes, however, remained in the custody of the jail wardens or superintendent, who would deliver its contents only after a thorough inspection and filtering. When some judicial officers also in charge of the jail inspection panel noted this, they issued orders that the lock be sealed, and only opened in court under the inspection of the court registrar. They also made orders to ensure that paper and pencils be provided with which to write complaints, as these had often been deliberately ignored by prison officials.
In a country where the privacy of free citizens is often at stake, it comes as no surprise that prison inmates have virtually none at all. Jail wardens read all letters coming in and going out. Although done on the pretext of ensuring security, this is an unquestionable intrusion into inmates’ civil rights.
Prisoners are also denied the right to vote while in jail. Referring to the provisions of the Representation of People’s Act and the Constitution of India, the Supreme Court rejected an appeal against this ruling, holding that
The right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute. The challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of sub-sec. (5) of S. 62 of the Act is, therefore, not available (All India Reporter 1997, Supreme Court, p. 2814).
Ironically, while convicts—or even just those being detained pending an inquiry into a petty offence—are being denied the right to vote, many of those holding seats in legislative bodies have criminal backgrounds. Prior to an amendment brought into section 8 of the Representation of People
’s Act, a person could contest elections even if they just walked out of jail. The amendment prescribed a six-year period of limitation on convicted criminals seeking retrial. It is a silent admission of the fact that many legislators have criminal backgrounds. However, these persons have little difficulty in finding their way back into politics. For instance, in Bihar the former Chief Minister Mr Laloo Prasad Yadav could not contest his election since he was facing several charges, and in Tamil Nadu too, the Chief Minister Ms Jayalathia faced a similar problem. Both managed to get a puppet candidate to contest the election on their behalf. While the minister from Bihar could not manage the tangle he was in, the minister from Tamil Nadu had her charges quashed. She immediately had one of her associates resign, staged a by-election, and is now again enjoying the post of Chief Minister. If the criminal behaviour of the political elite can be excused through technicalities, what worse could happen if prisoners are simply allowed to cast their votes?
Prisoners are also good business. In Tihar Jail, women inmates are taught knitting and sewing, and their products are sold outside, even abroad. Ms Max, whom some inmates describe as a social worker-cum-business woman, brings the raw materials and pays the inmates according to their work. Some inmates manage to earn up to Rs 1000 [US$ 22] a month. A pair of multi-coloured stockings earns Rs 70, while each glove knitted with jute fetches Rs 40. Last year the inmates made 3000 pairs of stockings between April and December to meet an export order. This year they are making gloves, and samples for Christmas stockings as well. The inmates do not know how much Ms Max gets at the other end. Although this could be viewed as an example of rehabilitation, it also has a hidden profit motive of pure business.
While the prisoners in the above case are getting some remittance for their work, most inmates are not so lucky. Forced prison labour is common throughout India. When the practice was challenged in the Supreme Court, it ruled that prisoners are also entitled to minimum wages, and directed states to make the necessary provisions accordingly. When the question was argued at length, counsel appearing for the state argued that state governments should be allowed to deduct a certain amount for providing basic amenities to prisoners. The implication of this argument was that it is not the duty of the state to keep the prisoner, but rather the obligation of the prisoner to pay for himself. Upon final consideration, the court directed state governments to make provisions for an “adequate wage” for prison labour (All India Reporter 1998, Supreme Court, p. 3164). Unfortunately, the “adequate wage” is often as little as Rs 14 for skilled labour and Rs 9 for unskilled labour, that is, not even seven per cent of the minimum wage legislated for non-convicts.
Violence, torture and death
Maltreatment of convicts is common throughout India. In Kerala, for example, every male convict entering prison must face the ordeal of ‘jail call’. Immediately on arrival, the prisoner is told to bend down, after which a few heavy blows are delivered, causing serious pain along the length of the victim’s spine. The inmate’s cries of pain can be heard throughout the prison, and so this is known as the ‘jail call’. While female inmates do not get this treatment, they suffer continuous ill treatment throughout custody, often including sexual harassment and rape. In fact, a judicial commission of enquiry in Kerala found that not only female inmates but even female visitors are sexually exploited by prison officials, the latter having to gratify the authorities to get permission to visit their dear ones. The commission also found that the Viyyur Central Jail doctor had not turned up for a year, and that pretrial prisoners and convicts were being put together. One particular inmate was under solitary confinement even though in judicial custody. Before leaving, a member of the commission ordered the authorities to remove the prisoner from solitary confinement, which they agreed to do immediately. A surprise inspection the next day revealed the same person in the same cell, held alone. One of the members of the commission, Justice Cheriyan Kuriakose, observed in his report that
The present intramural institutionalization of an offender has proved to have done much harm than good, especially in the case of short-termers, as they come out after their detention period with a diploma in crime.
The inhuman conditions within jails often result in riots, such as that reported in Chennai Central Prison on 17 November 1999, which resulted in at least nine dead inmates and around 100 injured. In that instance, the torture and murder of prisoners, and generally appalling conditions at the jail, precipitated the violence. According to a report by the International Environment Law Research Centre,
The prisoners claimed to a fact-finding team that the rebellion had already come under control when anti-riot police were brought in and prisoners were indiscriminately targeted. For instance, a prisoner who was physically disabled, and could not have posed any threat to the police, was shot at point blank range (International Environment Law Research Centre, ‘Human Rights in India: A mapping by Ms. Usha Ramanathan’, IELRC Working Paper No. 2001-3)
The UN Convention against Torture condemns all forms of inhuman treatment, including custodial torture. Despite pressure from the international community and non-governmental organizations, India has not taken any steps to ratify this Convention. The lame excuse often put forward is that the Criminal Procedure Code, Evidence Act, and Constitution have built-in defences against torture. In this regard, the Supreme Court has held that
Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rules of Law… Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government became lawbreakers, it would be bound to breed contempt for law and would encourage lawlessness, and every man would have the tendency to become a law unto himself, thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic “No”. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law… (D K Basu vs. State of West Bengal, in All India Reporter 1997, Supreme Court, p. 610)
If this solitary judgment is expected to provide the answer and remedy to the situation then the following questions also need some credible answers:
1. How far can a person depend upon the same department and same system of investigation if that person suffers custodial violence?
2. Can the victim expect an impartial inquiry?
3. How could the system, which ultimately depends upon the police charges, be able to deliver justice to the victim in such a case?
4. Given the financial and other conditions of an average Indian citizen, how far can a person fight a legal battle and expect justice if the whole prosecution case in an allegation of torture depends upon a police charge?
The questions are rhetorical, but there is
one valid answer. India has to ratify the Convention against Torture and legislate upon it.
When the police are blamed for gross human rights violations, many stories are brought to light by courageous relatives of the accused. By contrast, the suffering within Indian prisons is much less easily exposed. Despite repeated intervention by State and National Human Rights Commissions, and even by various constitutional courts, the prison system has been run down into a corrupt rut of neglect and inertia. Within it, our fellow human beings sink unattended and violated, their lives entirely subject to whatever fates await them.