They are overcrowded, unhygienic and have little oversight. There’s a need to expand use of house arrest as punitive measure.
The prison, it is famously said, holds a mirror to society. The conditions within prisons, to stretch this analogy, reflect the quality of any democracy. By that yardstick, India needs soul-searching. Not only has our collapsing criminal justice system ensured a mockery of reasonably speedy trials but tardy and often skewed (if not biased) investigations and prosecutions have ensured that undertrials languish in jails for decades. Courts rarely step in to ensure a thorough investigation and robust prosecutions, or a time-bound conclusion to trials.
The figures are there for all to see: Overcrowded jails, poor hygiene conditions, and little or no statutory monitoring of the state of affairs. The apathy of the vast Indian middle class on the issue has amplified colonial and post-colonial constructs of the prisoner, especially the political prisoner. In these bleak circumstances, the May 12 judgment of the Supreme Court in Gautam Navlakha’s petition seeking bail (which was rejected) and the hearings last week before a division bench of the Bombay High Court have offered a window of opportunity.
The incarceration of an 84-year-old Jesuit priest beset with Parkinson’s disease and a senior academic from the Delhi University suffering from a serious eye infection after he contracted COVID-19 in overcrowded conditions in the Taloja jail of Maharashtra, resulted in the Bombay HC in one case being open to, and in the second granting, hospitalisation and medical check-ups. Pleas for interim medical bail have been deferred. In both these instances, there was a stark disparity between what the jail authorities and agencies were saying and the evidence placed by the advocates for the undertrials. Other academics and advocates in jail in the Bhima Koregaon case also suffer from comorbidities. Conditions in several of India’s prisons are pathetic with zero or next to zero monitoring by committees statutorily required to do this job.
Should the direst of circumstances alone compel the last-minute efforts of redress by some courts? Many of the undertrials, including some women, in the infamous Bombay blasts case of 1993 could not escape multiple serious ailments — and worse — due to the pathetic conditions in Mumbai’s Arthur Road jail. Uttar Pradesh’s jails are rarely visited or assessed.
The May 12 judgment of the SC urges courts to actively use the option of house arrest in cases where “age, health conditions and antecedents of the accused” are a criterion. The court expressed special concern over the overcrowding of jails — on an average at least 118 per cent higher than the limit — as well as the burgeoning costs to the exchequer. Following this order, the Calcutta High Court on May 21, in the case of three serving elected officials and ministers of the TMC-led Bengal government, ordered house arrest. The court even allowed them to perform some official duties under observation.
House arrest as a punitive measure has been viewed differently depending on the socio-political context. Even prison sentences have been variously applied by colonial powers and elected governments in India depending on the social class and political affiliations of the prisoner. Even with house arrest, there will be some who will believe that the confinement is too lenient while others who see it as too humiliating. Given the context of the abysmal conditions of Indian prisons and the absence of political will in proper monitoring, the option of house arrest must be seen as a positive opportunity. The familiarity of the undertrial with her or his place of residence and the ability to get prompt medical attention must surely bend courts towards actively using and implementing this as an option.
In Independent India, house arrest has been used as a means of restricting movement and ensuring surveillance when an individual or groups of individuals are subject to preventive detention. In medieval Europe, St Paul at the age of 60 was awarded house arrest for two years where he continued his profession as a tent maker and paid his own rent. Galileo Galilei, the Florentine physicist, philosopher and astronomer after a second trial in Rome in 1633 was confined to house arrest for the rest of his life. In more recent times in the West, some societies use it post-trial and conviction as confinement with surveillance. Elsewhere, house arrest has been used to repress political dissent before trial.
A related issue in India is that few governments have evolved any legal understanding around the issue of political prisoners. Only West Bengal engaged with this issue and, in 1992, passed the West Bengal Correctional Services Act that provides not just for residence in correctional homes but, under Section 19(4) special categorisation of a prisoner as a political prisoner. Any offence committed or alleged to have been committed in furtherance of any political or democratic movement is regarded as a political offence.
The raging COVID-19 pandemic has turned the spotlight on Indian prisons and the recent hearings in the Bhima Koregaon case have raised the core issue of prison conditions in general as well as overcrowding, an absence of accountability and monitoring, which seriously endanger prisoners’ right to health and therefore, a right to a life with dignity, under Article 21.
Democratic societies constantly evolve. This evolution includes shifts in public attitudes and definitions towards crimes: Sometimes they harden, at other times, expand. Nelson’s Mandela’s statement — “I am prepared to die” — at the opening of the defence case in the Rivonia Trial, April 20, 1964, holds lessons for India and the world. It explains how only after the African National Congress (ANC) was declared an “unlawful organisation” were its members and the leadership compelled to go underground as the apartheid state passed harsher laws and used the armed forces to intimidate whole populations. Crimes committed by the state are only ever judged by history.
This column first appeared in the print edition on May 26, 2021 under the title ‘Prisoners and judicial conscience’. The writer is secretary, Citizens for Justice and Peace and co-editor, Sabrangindia.in
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