It is amazing to watch the Supreme Court building that symbolises a wonderful architectural tradition. It is more so when one looks at the flock of birds that fly over the court’s tomb, epitomising universal liberty, a theme that the Constitution tried to imbibe. It contains provisions for certain fundamental rights even for non-citizens. Article 21 promises right to life and personal liberty to ‘any person’. The court has interpreted life to always mean dignified life.
Recently, when a Bench headed by Justice Rohinton Fali Nariman ordered the installation of CCTV cameras across police stations and other offices of the probe agencies, a kind of re- incarnation of an assertive court of the past was readily felt. Cameras can, to some extent, oversee abuses and gestures of torture. Sadly, the court had to reiterate its earlier order issued in 2018 and say that it is imperative to have CCTV cameras in all the functional parts of the police stations, from lock-ups to compounds, so as to have audio and video footages round the clock.
The order reflects judicial vigilance against custodial torture. It is a dream that thrives for its own fulfilment. But the nation needs much more. Custodial torture is an Indian reality. So is custody as a means of torture. The quality of democracy is tested in the prisons. Prisons are not merely centres of the criminal justice system. They reflect the dialectical relation between the state and the citizen.
Let us get away from the theoretical abstractions and see the stark realities. Last month, in a strange episode, a group of lawyers dispatched sippers and straws for the veteran activist Stan Swamy struggling in jail with Parkinson’s ailment, incapable of holding a tumbler, at the age of 83. It is sad that the world‘s most powerful Supreme Court could not come to his rescue.
It is an irony that the top court repeatedly failed to invoke its own principle of “compassion wherever possible and cruelty only where inevitable”. This doctrine was laid down in serial killer Charles Sobraj’s case (1978) and forgotten in Sudha Bharadwaj’s one! This judicial contradiction could be an ethical shock to students of constitutional law.
The pandemic did not stop the government from criminalising dissent. It, on the other hand, accelerated the process and escalated the number of “prisoners of consciousness” in Indian jails—who already include Varavara Rao to Gautam Navlakha and many others. In Navlakha’s case, allegedly, spectacles were denied to him. Journalist Vijayta Lalwani reports that basic amenities such as blankets and clothes are not provided to political prisoners in Mandoli jail in Delhi.
In dictatorial democracies, remonstration is almost a political crime. For many activists, jail became the new normal, and bail, an uncertain exception. The concern of this piece is also about the ordinary prisoners. How does the state deal with them during the pandemic? A report by Karan Tripathi talks about the overcrowding in the Tihar prison complex, which was aggravated after the Delhi High Court decided to recall a batch of parole-bail orders issued earlier, during the initial days of the pandemic.
It was only after the death of a prisoner due to Covid-19 that 26 others were also found infected, according to his report. Tihar could only be a specimen. Prisons across the country could tell us a bigger story. The UN High Commissioner for Human Rights Michelle Bachelet recently said that “Covid-19 has begun to strike prisons, jails and immigration detention centres, as well as residential care homes and psychiatric hospitals” in several nations risking the lives of “extremely vulnerable populations”.
More importantly, she appealed: “Now, more than ever, governments should release every person detained without sufficient legal basis, including political prisoners and others detained simply for expressing critical or dissenting views.” The state’s intolerance to dissent indicates its disrespect for human dignity. This easily gets extended to the prisons. The institutional apathy to the unjust invocation of restrictive laws is disturbing.
We need a national action plan for scrapping draconian laws once and for all. Or else, the suppression of even peaceful protest by the machineries of the state would be perpetuated. But institutional introspection happens only when the people insist on it. India developed its ideas of prison justice through judicial precedents, rather than legislation. The colonial statutes like the Prison Act (1894) and the Prisoners Act (1900) are clearly outdated.
The prison manuals also are inadequate to meet the ends of justice. The courts could, however, travel a different path. The judgments in cases ranging from Hussainara Khatoon (1979) to Sunil Batra (1978) and Sheela Barse (1983) tried to rehumanise the prisons. This judicial shift occurred owing to the oppositional radicalism during and immediately after the Emergency (1975-77).
Political power has always a brutish vocabulary. In a democracy, citizens cannot be jailed as a matter of routine. Incarceration is not mere curtailment of freedom. It is a diminution of human dignity. As Jurist Ronald Dworkin put it, “Without dignity, our lives are only blinks of duration.” Today, one is forced to think that individual dignity in India is in deep crisis. As Justice Krishna Iyer said, “brutal deterrence” in itself could be a “crime by punishment”, which the state continues to commit.
KALEESWARAM RAJ (kaleeswaramraj@gmail.com) (Tweets @KaleeswaramR)
Lawyer, Supreme Court of India