Independence from Holiday for Human Rights of Convicts in Confinement

“Prisons are built with stones of Law, Brothels with bricks of Religion” ― William Blake

Today we are celebrating our 71st political Independence Day. In comparison to the overall voyage of progress and development of the human race, 70 years is but a small time in the life of a nation that secured political independence from three hundred years of British rule.

The strength of our country is our people. With the achievements in different fields, India is gradually gaining respect among the leading countries of the world as a developed nation. As a developed nation, the light of independence must reach to the last man and there should ideally be hardly any difference between the letter and spirit of the law and its actual  practice.

We begin the journey of with the issue of Prisinor of Wars and in the first anniversary issue, we are raising the issue of jail inmates.

There is a relation among the news items ‘Hundreds of women jail inmates created ruckus in Byculla Women Jail, Mumbai’, ‘Shashi Kala allegedly bribed to get her own kitchen in Bengaluru Jail’, and ‘Justice Karnan (like most of the other VIP inmates) fell sick after lodging in Kolkata jail’, flashed in the last couple of months. These headlines only serve to invite attention to the plight of the jail inmates who do not have any means to escape the inhuman punishment faced day in and day out other than which was awarded by the courts. It is time to look into the stark reality of such news items and correlate them with Hon’ble Apex Court’s effort to develop code of standards in respect of dignity for jail inmates. It may also be mentioned here that many innocent persons also suffer in jails.

Justice V.R.Krishna Iyer in Sunil Batra V Delhi Administration 1978 (4) SCC 494 amplifies the jail inmates atrocities case into the following questions:

·      Does a prison setting, ipso facto, out-law the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement, and (to change the metaphor) if there is no total eclipse, what lucent segment is open for judicial justice?

·      Three inter-related problems project themselves:

(i)             a jurisdictional dilemma between hands-off prisons and take over jail administration;

(ii)           a constitutional conflict between detention security and innate liberties; and

(iii)          the role of processual and substantive reasonableness in stopping brutal jail conditions.

In such basic situations, pragmatic sensitivity, blighted by the preamble to the Constitution and balancing the vulnerability of caged humans to State torment and the prospect of escape or internal disorder, should be the course for the court to navigate.

Jail is the most untouchable subject in Indian society and the jail inmates are perhaps the least talked about. However, this cannot negate the existence of jails and jail inmates  numbering almost 4,19,623 (on December 31, 2015). These people languishing in jails witness not just gross violation of their fundamental rights but also undergo in a large measure punishment written nowhere in IPC. In addition, they also face apathy of jail administration, are subject to inhuman conditions with respect to sanitation, drinking water and food. Abuse at the hands of fellow inmates is also rampant. The Courts cannot absolve themselves of their constitutional responsibilities to delineate and protect the fundamental rights  of jail inmates.

In a democratic nation, the rule of law is held to be supreme and people are sent to jail for breaking laws. The lawful imprisonment involves denial of many rights and privileges available to the ordinary citizens. This incarceration of jail inmates however, is not intended to deny the fundamental rights as guaranteed by the Constitution.  On the contrary, it has been shown through reports that the laws of the land do not operate inside the jails.

It is an accepted fact that to administer justice, punishment is needed but the cost of deprivation of fundamental rights of 67% people as under-trial in Indian jails is unjust and  not in conformity with  rulings given by the Apex Court vide different case laws. Further, it has been seen that 70% jail inmates were either illiterate or have studied less than 10th standard. This implies that jails are full of people who do not know their rights, making the rights-obligations equation quite complex.

This observation is corroborated by the ‘Prison Statistics India 2015’ report of the National Crime Records Bureau (NCRB) which states that the 114.4% occupancy rate makes the jails over crowded resulting in very poor hygiene and lack of sleep punishment to the inmates which was not a part of their punishment awarded by the courts. In fact, no law prescribes any such a punishment. The criminal punishment system in the process of awarding punishment is leading to denial of the very fundamental rights guaranteed in the constitution and as a result is working at cross purposes with the very constitution it seeks to uphold.

The Constitution and the concern of the Courts is just contrary to the picture painted by the facts and figures. Justice V.R.Krishna Iyer in Sunil Batra case writes the province of prison justice, the conceptualization of freedom behind bars and the role of judicial power as constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant. Therefore, explicative length has been the result; and so it is that, with all my reverence for and concurrence with my learned brethren on the jurisdictional and jurisprudential basics they have indicated, I have preferred to plough a lonely furrow. In para 54 Justice Iyer states that For what is punitively outrageous, scandalizing unusual or cruel and rehabilitative counter-productive, is unarguably unreasonable and arbitrary and is shot down by Arts. 14 and 19 and if inflicted with procedural unfairness, falls foul of Art. 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or under-trial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Art. 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the life-style within the carcers. [..] So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman sentenced for a term is doing violence to Part III. So Batra pleads that until decapitation he is human and so should not be scotched in mind by draconian cellular insulation nor stripped of the basic fellowship which keeps the spirit flickering before being extinguished by the swinging rope. Further in para 200 of the landmark Sunil Batra case, Justice Iyer laid down law as 'Freedom behind bars' is part of our constitutional tryst and the index of our collective consciousness. That the flower of human divinity never fades, is part of our cultural heritage. Bonded labour, cellular solitary confinement, corporal punishments, status-based elitist classification and the like deserve to be sentenced to transportation from prisons and humanising principles granted visa into prison campuses. In short, transformation of consciousness is the surest 'security' measure to antidote social entropy. That is the key to human development - rights and responsibilities - within and without prisons.

In another landmark judgement Prem Shanker Shukla V Delhi Administration 1980 AIR 1535 Justice Iyer expounded that the guarantee of human dignity forms part of a Constitutional culture and the positive provisions of Articles 14, 19 and 21 spring into action to disshackle any man since to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness' and security. Even a prisoner is a person not an animal, and an under-trial prisoner is a fortiori so. Our nation’s founding document admits of no exception. Therefore, all measures authorised by the law must be taken by the Court to keep the stream of prison justice unsullied.

This spirit of our case laws is yet to reach the jail administration. May this Independence day see a new beginning for the jail inmates where the prison should be correctional houses, not cruel iron aching the soul ruling in Mohammad Gaisuddin V State of A.P. (1977) 3 SCC 287 prevail.

Happy Independence Day!!




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