The case of Assam’s Madhubala Mondal is not rare and adds into a series of cases of unlawful arrests and detention, which have caused individuals to spend several years in jail without being guilty in India.
Mondal was 59-years-old and wrongfully detained for three years in Assam as a result of “mistaken” identity by the police. It has again highlighted the need to bring accountability in our criminal justice system.
Recent judgments acknowledge that individuals have often been falsely framed and prosecuted for offences against the state, particularly those related to terror and national security.
Under the International Covenant on Civil and Political Rights (ICCPR), signatories are required to take steps to ensure the right to compensation for wrongful imprisonment and detention. While India had expressed reservations while ratifying the ICCPR that the Indian legal system does not recognise the right to compensation for victims of unlawful arrest and detention, the jurisprudence created by the Supreme Court of India has made this reservation redundant.
In a number of judgments, the Supreme Court has recognised granting of compensation as a necessary public law remedy for violations of fundamental rights, including wrongful incarceration and arrests. For instance, the Supreme Court, last year, provided a compensation of 50 lakhs to former ISRO scientist Nambi Narayanan, 24 years after he was illegally detained on the charge of leaking official secrets to a spy racket.
The fact that the payment of compensation was ordered 24 years after the wrongful arrest is a serious reminder of the need to correct wrongs caused by unlawful arrests in a timely manner and to preserve liberty. This calls for statutory recognition of the right to compensation in cases of wrongful arrests and imprisonment, which the victims of such accusations can avail without waiting for another several years of litigation before the courts.
Unlawful arrests and detention not only cause loss of years, but can also create social stigma and ostracisation even after being released. This is evident from powerful narrative accounts by individuals who have been victims of false prosecutions. For instance, in her bookPrisoner No. 100: An Account of My Nights and Days in an Indian Prison, political activist Anjum Zamarud Habib (from Kashmir) recounts her experiences of having spent five years in jail before being released by the Delhi High Court. Anjum writes in her book, “I am a free person today but the wounds and scars that jail has inflicted on me are not only difficult, but impossible to heal”. Framed As a Terrorist: My 14-Year Struggle to Prove My Innocence is another harrowing narrative of a young Indian Muslim man, Mohammad Aamir Khan, who was kidnapped by the police, falsely accused of being a terrorist, framed, and kept in jail for almost 14 years. Providing compensation to such victims of wrongful arrests, detention and prosecution is the least that the state could do as reparations for the wrong done.
Countries such as the United States, United Kingdom, Australia, Canada, Germany, etc. have enacted a statutory right to compensation, but it is limited to wrongful conviction by virtue of a final order, after all avenues of appeal have been exhausted and a new fact surfaces, which then proves conclusively that the convicted person was factually innocent. In its 277th report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies” (August 2018), the Law Commission of India has rightly pointed that the practices of Western countries would be inadequate to address the systemic shortcomings of the criminal justice system in India, where individuals have spent several years in imprisonment even prior to a conviction.
The Law Commission has suggested the standard of ‘wrongful prosecution’ be applied in India. This standard will be applicable to cases where the police or prosecution maliciously, falsely or negligently investigated or prosecuted a person who was found not guilty of the crime. While stating that India must fulfil its international commitments, the Commission recommended certain specific amendments in the Code of Criminal Procedure (CrPC), 1973 in order to incorporate the provisions for compensation. The Commission even presented a draft amendment bill for the CrPC. However, Parliament has not paid any heed to the observations and recommendations of the Law Commission to date.
Moreover, as a result of lack of financial resources and knowledge about Supreme Court judgments, many individuals may not even think of directly approaching the Supreme Court to seek compensation. A statutory right to compensation will provide a legal remedy to the citizens and will subsequently make the state officials, in particular, the police, institutionally liable.
The author is an LLM postgraduate from Harvard Law School.
Today, on 13th September, the martyrdom day of the great revolutionary Jatin Das, who sacrificed his life while on hunger strike for the political rights of the prisoners, 6 political prisoners in Yerwada jail have gone on a one day token hunger strike.
Initially Jatin Das worked in the Congress Seva Dal along side Subhash Chandra Bose. However, later he joined the revolutionary organization Hindustan Socialist Republican Association. He had mastered the craft of making bombs.
The Bombs which were thrown at the assembly hall by Bhagat Singh and Batukeshwar Dutt, with a stand that an explosion was required to make the deaf hear, were prepared by Jatin Das. Thus say the history. The revolutionaries while in Jail went on a hunger strike demanding that revolutionary prisoners should be treated as political prisoners. Jatin Das, who too participated in the hunger strike exhibiting glorious determination, died on the 63rd day of the hunger strike on 13th sept 1929. He was only 25 at the time.
That 13th sept, the martyrdom day of Jatin Das be declared as “Political prisoners’ rights day”, draconian laws like ‘Unlawful Activities Prevention Act’ and Armed Forces special Power Act be abolished, capital punishment be abolished, and political prisoners be given humane treatment are the prime demands of the prisoners. Those on hunger strike include Adv Surendra Gadling, writer-editor Sudhir Dhawale, Mahesh Raut, Rona Wilson, being tried under the UAPA and Arun Bhelake and K Muralidhar, accused in other cases.
We must understand that when these prisoners are held for certain political ideas and action based on those ideas, they must be recognized as political prisoners. In the pre independence india the revolutionary political prisoners raised a similar demand before the british regime, but it was not fulfilled, and it remains unfulfilled even after 71 years of independence.
Books are as much essential for a thinking political prisoner as food for a human being. Hence, books of Law and a study of Judgements by High court in various cases are necessary for Adv Surendra Gadhling to satisfy his intellectual quest. The administration has obstructed the provision of these books despite clear orders from the session court.
Sudhir Dhawale, who is a writer and an editor, needs books on economics, sociology and Ambedkarite dalit movement in particular.
Mahesh Raut holds a post graduate degree from TATA institute of social science and is a researcher of tribal and forest laws, relevant policies and movements. He needs books about his subject of study.
Intellectual activity is necessary for the human brain to remain active. If the political prisoners are deprived of the reading material they need, it means they are being consciously harrassed.
The jail administration has intentionally been harrassing an intellectual like Surendra Gadling since last 3 months. The administration has shifted him as many as 5 times withing the jail so far, which is clearly a part of the harrassment.
The Jail administration has even refused to provide them the warm clothes. The administration has in clear terms denied provision of anything whatsoever on humane grounds. They are being harassed under the disguise of Law. A similar situation prevails among most political prisoners in other Jails as well.
*●1. Abolish UAPA/AFSPA and all other Draconian laws*
*●2. Abolish Death Penalty*
*●3. Declare and Observe today’s day (13 September) as ‘Political Prisoners Rights Day’.*
*●4. Give humane treatment to all the inmates irrespective of crime allegedly committed and irrespective of caste, class, gender, religion, etc.*
Thirumurugan Gandhi, civil rights activist and coordinator of May 17 Movement has been booked under the draconian Unlawful Activities Prevention Act (UAPA) act for expressing his solidarity to the Palestinian struggle in a public meeting, in 2017.
Thirumurugan Gandhi is in jail for the past 14 days. He was detained in the Bangalore international airport on his return from Geneva where he was attending the UNHRC sessions. Thereafter he was brought to Chennai and imprisoned in Vellore prison. Ever since then, 13 new cases have been filed on Thirumurugan Gandhi. Out of these 13, four cases have been booked for Sedition under IPC Section 124-A. The sedition cases are booked for the flimsiest of the reasons like Garlanding statues of Periyar and Ambedkar and addressing the gathering, posting videos on Facebook about the Sterlite massacre.
He is being kept under isolation in the prison and made to travel between various districts in Tamil Nadu for attending the court sessions. By putting him through physical and mental stress the government is making its intention clear. Even today when he was brought to the Alandhoor magistrate court, the police have denied his repeated requests to be taken to a clinic and did not even stop for a urinal.
Today, Thirmurugan Gandhi has been booked under the notorious Unlawful Activities Prevention Act (UAPA). The case has been filed for his participation and speech in a public meeting organized by the Islamic organizations in TamilNadu in 2017, to condemn the oppression and human rights violations in Palestine and to express the solidarity with the Palestinian struggle.
The Unlawful Activities Prevention Act, which was brought in with the pretext of tackling terrorism, has been used against political activists. The person accused booked under UAPA has a bleak prospect of getting a bail and can be kept under detention for 180 days even charge sheet being filed.In his last visit to UNHRC he had spoken the targeted of Sedition laws, UAPA and National Security Act against civil society activists.
June 8, 2018 marks one year since Chandrashekhar Azad, a rising Dalit leader in Uttar Pradesh, was arrested and imprisoned by the Bharatiya Janata Party (BJP) state government.
Azad was incarcerated after a month-long cycle of caste violence had claimed the lives of two men, a Dalit and a Rajput, and left dozens injured in and around Shabbirpur village in Saharanpur district, last year.
The 31-year-old was held on several serious charges including rioting, attempt to murder, unlawful assembly and looting, but he was granted bail by the Allahabad High Court on November 2.
Justice Mukhtar Ahmad said the charges were “politically motivated.”
The same day, the Yogi Adityanath government concluded that Azad’s release would threaten public order and national security, and hit him with preventive detention under the National Security Act, 1980.
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The 31-year-old lawyer, who also goes by the name Ravan, has been languishing in the Saharanpur district jail, without access to bail or a trial.
Over the course of the past year, at least four Dalits, three in connection with the caste violence in Saharanpur, and another Bhim army leader, have been placed under the NSA. Preventive detention has not been invoked against any member of the upper-caste Rajput (Thakur) community in connection with violence.
Chief Minister Yogi Adityanath hails from the Thakur community.
‘He doesn’t know how to get out’
Vinay Ratan Singh, who was lodged at the Saharanpur district jail until last week, told HuffPost India that Azad was suffering from a stomach and a throat infection, and he was in acute pain over a bad tooth.
“His tooth hurts him a lot. He is in urgent need of surgery but all he is getting are some medicines from the shop inside the jail,” he said.
Singh, who was also arrested in connection with the caste violence in Saharanpur, was released on bail, last week. He is the national president of the Bhim Army, an organization founded by Azad in 2014 to work for the emancipation of Dalits.
Singh, who spoke with Azad in prison, said the Bhim army chief was staying in a cell by himself, in an area the inmates call “tanahi,” but he was holding out hope for his release.
“He says, ‘If I haven’t done anything then how long can they keep me here. They will have to release me eventually,'” said Singh. “We have known each other a long time. I believe that this experience is only making him stronger.”
In the past four years, while the Bhim Army was setting up schools to educate children about the Dalit movement, Azad had gradually ingratiated himself in the community. Young Dalit couples in UP and Uttarakhand are even putting his photograph in their wedding cards.
Even with his growing clout in western UP, Azad had not run for political office. Until his arrest, last year, his Army appeared to be focused on social activities. Ahead of the crucial by-poll in Kairana, last month, Azad asked the “Bahujan Samaj” to vote for Tabassum Hasan, the candidate of the united opposition, against the BJP.
Those who have visited him in jail say that Azad spends a great deal of time reading books and talking about the state of the country. He has only left prison when he was rushed to a hospital in Lucknow and another one in Meerut, in October and November respectively, after suffering from an acute stomach infection. His supporters claim that he was suffering from typhoid in prison, last year, but he was not given any treatment. They also claimed that he was beaten up by other inmates, but the district administration said the allegation was baseless.
Pradeep Narwal, a Dalit rights activist, said, “Even from behind bars, he wants to know how the schools are doing.”
Narwal said that he used to meet Azad frequently in the Saharanpur district jail, but the authorities had denied him entry after the Bhim army chief had carried out a hunger strike following the Supreme Court’s order barring the immediate arrest of persons for alleged harassment of Scheduled Castes and Scheduled Tribes (SC/STs).
Recalling his meeting with Azad in March, Narwal said that while the Bhim army chief continued talking about the Dalit movement, but the prolonged confinement had taken its toll. “There is mental oppression. He doesn’t know when he will get out. He doesn’t know how to get out,” he said.
There is mental oppression. He doesn’t know when he will get out. He doesn’t know how to get out.
As Indian law on preventive detention stands today, Azad can be detained without trial or bail for one year. The 31-year-old, until November 2018, remains at the mercy of the state. At the end of the year, the BJP government has the power to issue another order of preventive detention.
Legal experts describe preventive detention as “confinement by the political executive” as opposed to “confinement by judicial sanction.”
The draconian law, enacted by the Indira Gandhi government, allows the state to preventively detain an Indian citizen if such person is deemed to be a threat to the defense of India, public order, the relations of India with foreign powers, the security of India and to the maintenance of essential supplies and services.
Human rights activists have long blamed the vague wording of the Act for legitimizing its misuse.
If the period of detention is more than three months, the NSA allows for a detained person to make a representation before an Advisory Board of three high court judges or persons qualified to be high court judges. It is worth pointing out that a person detained for less than three months does not even have the option of making such a representation.
India is one of the few remaining countries to use preventive detention. The European Court of Human Rights has long held such laws as illegal. In India, however, preventive detention finds place not just in the NSA, but several other laws like the Unlawful Activities Prevention Act (UAPA), 1967, the Jammu and Kashmir Public Safety Act, 1978, the Chhattisgarh Special Public Security Act, 2005, amongst others.
Not only is preventive detention invoked in crimes that can easily be prosecuted under other Indian laws, it has long been a tool for governments to crush dissent.
Abhirr VP, a senior campaigner with Amnesty International India, pointed to Azad, farmers’ rights activist Akhil Gogoi in Assam, who was detained under the NSA, and Kamran Yousuf, a Kashmiri journalist, who was booked under the UAPA.
“You can see a pattern emerging. The law is being used against activists who are expressing opinions contrary to that of the government,” he said.
The law is being used against activists who are expressing opinions contrary to that of the government.
The UP government on November 2 placed Azad under preventive detention for a period of three months. Following his representation to the advisory board in December, not only was Azad’s detention upheld, it was extended by another three months to May 2.
On May 2, the state government extended Azad’s detention till August 2.
Colin Gonzalves, the human rights lawyer, who is planning to challenge Azad’s preventive detention in the Supreme Court, said the UP government had failed to furnish any evidence that justified preventive detention.
Gonzalves noted that the six FIRs (First Information Reports) against Azad were “vague,” he had not been in possession of a weapon, and his defense team had found a video that showed the Superintendent of Police in Saharanpur calling on the Bhim Army chief to help control the crowd.
“They have absolutely nothing,” he said.
Mixed message from the Allahabad High Court
In February, Azad filed a writ petition in the Allahabad High Court, challenging the NSA order. In April, it was rejected by a two-judge bench comprising justices Ramesh Sinha and Dinesh Kumar Singh.
The judges endorsed the UP government’s apprehension that the petitioner, after getting bail, “would indulge in such activities which would spread caste feeling and would indulge in such activities which would have adverse impact on maintenance of the law and order…”
Amnesty International’s Abhirr VP noted how odd it was for the Allahabad High Court to have upheld the preventive detention imposed on Azad, just five months after having described the criminal charges against him as “politically motivated.”
“The Allahabad High Court’s ruling raises disturbing questions,” he said. “It is the duty of the court to guarantee a fair trail to all persons and to ensure the criminal justice system is respected.”
It is the duty of the court to guarantee a fair trail to all persons and to ensure the criminal justice system is respected.
Growing NSA terror
While it could be argued that even those detained under the NSA have recourse to the writ jurisdiction of the courts, human rights activists point out that not everyone has the means to pursue it.
In other words, not everyone is a prominent activist like Azad, who has the backing of his own supporters as well as sections of civil society and the public.
As one human rights activist put it, “What happens to you if you’re just an ordinary goon who has been slapped with the NSA?”
In August, last year, the state government extended the NSA to the crimes of cow smuggling and cow slaughter, even though these are covered under the UP Cow Slaughter Act, the Prevention of Cruelty to Animals Act.
At least three Muslim men, accused of cow slaughter, have been arrested under the NSA.
Legal expert argue that nothing justifies invoking preventive detention under the NSA for crimes related to cow slaughter.
Given that it is the Dalit and Muslim communities who are largely involved in the skinning, tanning and transporting of cattle, Gonsalves, the human rights lawyer, said, “This is totally anti-Dalit and anti-Muslim.”
This is totally anti-Dalit and anti-Muslim.
Azad’s prolonged detention, human rights activists believe, has revealed how the BJP government is using the NSA to target Dalits in the state.
Nakul Singh Sawhney, a documentary filmmaker who has worked extensively on caste and communal issues in western UP, asked why the NSA was not extended to the Shri Rajput Karni Sena, on organization that led violent protests to prevent the release of Sanjay Leela Bhasali’s Padmaavat.
“Why not the Karni Sena and why Chandrashekar Azad?,” he said.
Why not the Karni Sena and why Chandrashekar Azad?
Azad was not the only Dalit slapped with NSA following the caste violence in Saharanpur, last year.
Two Dalit men, Sonu Pradhan, the village head of Shabbirpur, and Shiv Kumar, another resident, have also been hit with preventive detention.
In contrast, a fact-finding investigation by the National Campaign for Dalit Human Rights (NCDHR) and the Commonwealth Human Rights Initiative (CHRI) has found that only three out of the 40 persons from the Rajput community, who were accused by Dalits in connection with the Shabbirpur violence, were arrested. A total of nine Rajputs have been arrested, according to the study.
The fact finding team also found that not all relevant sections of the (Prevention of Atrocities) Act, 1989 (SC/ST Act), which protects Scheduled Castes and Tribes, were not invoked in the FIRs.
In addition to the Dalit men who are in preventive detention in connection with the caste violence from last year, the UP government has also invoked the NSA against Upkar Bawara, Bheem Army’s Muzaffarnagar district president, even though he had already been jailed in connection with the violence that had erupted in the district on April 2, the day of the Bharat Bandh, over the Supreme Court’s ruling on the SC/ST Act.
Apurva Kumar, the younger sister of Shiv Kumar, the Shabbirpur village resident who is being held under the NSA, said her family is living in dread of receiving letters.
“When the time comes for the NSA to end, we get another letter saying another three months, and then another letter. We have tried everything to help him. We don’t know what to do anymore,” she said
Naively, I was under the impression that after covering the two nights that Salman Khan spent in jail, we would go a step further and find out what the other prisoners face, languishing night after night, in those hell holes. But, nah, we didn’t bother to find out the condition of our ‘caged’ men and women, sitting imprisoned in that Jodhpur Jail or in the other jails and prisons of the country. Mind you, this apathy when almost seventy-five percent of the imprisoned are undertrials and with that technically innocent.
We weren’t jolted by the near death condition of Indrani Mukerjea; even as news reports relayed she was either poisoned or else drugged with an overdose of medicines. Yes, all these murky build-ups well inside the high prison walls. Quite obviously, it’s not just the jail staff that rules and overrules the jailed, but also the political mafia. But how would we know the actual and factual happenings; fed that we are on government releases in the form of police briefings and handouts!
We haven’t even bothered to study the crucial ‘why’ inmates run away from prison hellholes. Perhaps, they are unable to cope with the daily round of humiliation and cannot pick up the courage to talk about the trauma they are undergoing. Who will listen to their long list of woes? How will they articulate details of those torturous rounds?
How will they or their families cope with the aftermath, in the backdrop of the fact that their unofficial tormentors are their official protectors!
Today, amidst the bogus developmental cries, where’s that required focus on the jails and on those languishing in jails? If the political rulers carried even faint traces of genuine connect with the disadvantaged the first thing they would have done was to reach out to the jailed inmates, at least in terms of reforms. To begin with, they ought to have expanded the very concept and idea of open jails. Let the jailed breath fresh air. Even if they have committed crimes it does not give the State the sanction to throttle them, slowly
In fact, way back in 2003, the then chairman of National Human Rights Commission, Justice AS Anand, had focused on the dismal conditions that the jailed face. During my interactions with him, he had detailed the congestion cum overcrowding in prisons, also the trauma faced by the undertrials, because of the delay and hurdles in getting bail.
To quote him from an interview given to me in 2003, “Yes, nearly 75% of our jail population consists of undertrials, many of whom are innocent… A large number of undertrials languish in jails even after they are granted bail because they are unable to raise the surety amount. In this context, we should consider the release of undertrials on personal bonds.” Justice Anand had also focused on the plight of the women prisoners. He had mentioned about two specific jails where women prisoners complained of the unavailability of sanitary napkins and with that of poor menstrual hygiene.
And if one were to read any of the books written by former prisoners, harsh truths come out. Anjum Zamarud Habib’s ‘Prisoner No. 100: My Nights and Days In An Indian Prison’ (Zubaan), Mohammad Aamir Khan’s ‘Framed As A Terrorist’ (Speaking Tiger), Abdul Wahid Shaikh’s — Begunah Qaidi (Pharos Media), Mufti Abdul Qayyum Ahmad Mansuri’s ‘I Am A Mufti & I Am Not A Terrorist:11 Years Behind the Bars’ (published by Jamat Ulama Ahmedabad and Maharashtra), Iftikhar Gilani’s ‘My Days in Prison’ (Penguin) … Space constraints come in way of my detailing the horrifying level of torture these hapless humans went through during their imprisonment, till they were proven innocent and set free by the Courts.
Shouldn’t these books authored by former prisoners be read by the heads of the Human Rights Commissions? Also, shouldn’t we, the not-so-jailed, question and query: Why jails and prisons are not getting developed and spruced up along the developmental cries? Where is the transparency in the treatment meted out to the jailed? Why should we go only by police hand-outs? Why shouldn’t a non-governmental agency be allowed to carry simultaneous investigative probes? Why shouldn’t the biased and corrupt and ruthless police officers be dismissed from service? Why is it getting easy for the police and agencies to arrest an innocent and frame terror charges on him; with which he sits languishing as an undertrial for years to come? Why are details to jail deaths and tortures not probed by an independent agency or any watchdog? What is the condition of the ‘alive’ jailed; not to overlook the fact that all those who cannot take the strain die, slowly and steadily, day after day? Slow death!
For God’s sake, can there be some degree (not third degree!) of transparency to what’s taking place inside those high walls? Also, how I wish that several of the jailed political prisoners of the day write what’s taking place in their jails. Lalu Prasad Yadav should write his autobiography, with ample focus on his jailed years.
Leaving you with these lines of Faiz Ahmad Faiz-
Wearing the hangman’s noose, like a necklace,
The singers kept on singing day and night,
kept jingling the ankle-bells of their fetters
and the dancers jigged on riotously.
We who were neither in this camp nor that
just stood watching them enviously.
shedding silent tears.
Returning, we saw that the crimson
of flowers had turned pale
and on probing within, it seemed
that where the heart once was
now lingered only stabbing pain.
Around our necks the hallucination of a noose
And on our feet the dance of fetters.”
Ahead of International Blasphemy day on Saturday, the International Humanist and Ethical Union (IHEU) dedicated its final statement at the 36th session of the UN Human Rights Council to call for the immediate release of Raif Badawi, Ashraf Fayadh, and Ahmad Al Shamri – all in prison for “religious insult” offences.
In the statement, IHEU director of advocacy, Elizabeth O’Casey, highlighted the double human rights abuse committed by states who arbitrarily detain citizens on accusations of blasphemy. She said, “the problem of arbitrary arrest and detention is often seriously compounded by anti-blasphemy laws and the outlawing of religious insult.”
O’Casey pointed to Saudi Arabia, a country where authorities repeatedly fail to abide by international standards for fair trial, as a case in point. Liberal and human rights activist, Raif Badawi, Palestinian poet, Ashraf Fayadh, and social media user, Ahmad Al Shamri are all in jail on charges related to religious insult and atheism. Al Shamri was sentenced to death in February 2015; his appeal to overturn that sentence was rejected in April this year.
Badawi faces another five years in jail after having served five already and suffered at least 50 lashes by the state. He has been sentenced to 600 in total. One of Badawi’s calls before he was imprisoned to was lift the driving ban for women in Saudi Arabia. Yesterday saw the announcement of that wish being fulfilled.
Fayadh has been in prison since 2014 and was sentenced to eight years in jail and 800 lashes in January last year. Both Badawi and Fayadh had their original death sentences overturned.
In the statement to the UN, O’Casey observed, “For a state to prohibit blasphemy and religious insult goes against their international human rights obligations. But for a state to then punish and detain people without a fair trial or just procedure on such charges represents a peculiarly cowardly and reprehensible practice.
“Like those at the World Conference on Human Rights, we express dismay and condemnation that gross and systematic violations of human rights are still happening in spite of the plethora of laws protecting them.”
She closed by calling for the immediate release of the three men.
Saudi Arabia was re-elected as a member of the Human Rights Council last year.
The statement follows in full below:
ORAL STATEMENT International Humanist and Ethical Union
UN Human Rights Council, 36th Session (11 September – 29 September 2017) General Debate on Item 8 Elizabeth O’Casey
The Vienna Declaration expresses dismay and condemnation that gross and systematic violations and obstacles to the full enjoyment of all human rights, including arbitrary arrest and detention still occur across the world. The declaration also forcefully defends the right to freedom of thought, conscience, expression and religion.
In reality, the problem of arbitrary arrest and detention is often seriously compounded by anti-blasphemy laws and the outlawing of religious insult.
These cases demonstrate states acting in violation of the detention and trial provisions of both the UDHR and the ICCPR, and Articles 18 and 19 protecting freedom of belief and expression.
For a state to prohibit blasphemy and religious insult goes against their international human rights obligations. But for a state to then punish and detain people without a fair trial or just procedure on such charges represents a peculiarly cowardly and reprehensible practice.
Like those at the World Conference on Human Rights, we express dismay and condemnation that gross and systematic violations of human rights are still happening in spite of the plethora of laws protecting them.
We call for the immediate release of Ahmad Al Shamri, Raif Badawi, and Ashraf Fayadh, and urge members and observers concerned about arbitrary detention and the right to free expression and belief to do the same.
24,000 prisoners across 29 prisons in 12 states protested against inhumane conditions, timing it around the anniversary of the Attica Prison uprising, a prisoner strike now 46 years old.
That violent uprising originated from prisoners rebelling against overcrowded cells, unsanitary conditions, medical neglect and abuse. From Attica to the strike led by the Incarcerated Workers Organizing Committee last year, these protests draw attention to an ugly truth: Prisoner abuse runs rampant and it has extended into modern-day versions of slavery. Last year’s strike organisers described slavery-like conditions in prisons in the nationwide call to action.
Slavery persists by another name today. Young men and women of colour toil away in 21st-century fields, sow in hand. And Corporate America is cracking the whip.
Influenced by enormous corporate lobbying, the United States Congress enacted the Prison Industry Enhancement Certification Program in 1979 which permitted US companies to use prison labour. Coupled with the drastic increase in the prison population during this period, profits for participating companies and revenue for the government and its private contractors soared. The Federal Bureau of Prisons now runs a programme called Federal Prison Industries (UNICOR) that pays inmates under one dollar an hour. The programme generated $500m in sales in 2016 with little of that cash being passed down to prison workers. Stateside, where much of the US addiction to mass incarceration lies, is no different. California’s prison labour programme is expected to produce some $232m in sales in 2017.
These exploited labourers are disproportionately African American and Latino – a demographic status quo resulting from the draconian sentencing and other criminal justice policies ransacking minority communities across the United States. African Americans are incarcerated at a rate five times higher than that of whites. In states like Virginia and Oklahoma, one in every 14 or 15 African American men are put in prison.
We lock people of colour up at alarming rates. We put them to work. Corporations gain. This story is an age-old American tradition. Throughout history, our nation has successfully pulled back corporate greed, but private corporations have always found new ways to reap enormous wealth from cheap labour.
The historical circumstances following the abolition of slavery provide the necessary context to understand how corporations function in a de facto replacement for slavery. Although the US Constitution’s Thirteenth Amendment prohibited slavery and involuntary servitude, it made an exception – a loophole for “punishment for crime whereof the party shall have been duly convicted”, which made prison labour possible.
Workers flipping burgers and frying french fries for minimum wage at McDonald’s wear uniforms that were manufactured by prison labourers.
Following the Civil War, the Southern economy was in shambles and the slaves were emancipated. A cheap labour source was needed, and the convict lease systemwas invented. States leased out their convicts to industrialists and planters to work in locations such as railroads, coal mines and plantations, and entrepreneurs bought and sold these leases.
With little capital investment required and no need to care for the health of the prisoners, the system of economic exploitation became highly profitable for businesses and states and even cheaper than slavery. For example, in 1883 convict leasing provided Alabama with 10 percent of its revenue, 73 percent in 1898. Leased convicts were treated abysmally, with death rates 10 times higher than prisoners in states that did not employ leased convict labour. Secret graveyards contained the bodies of prisoners who had been tortured and beaten to death.
The viability of the convict lease system required that black people be returned to their former status as a source of labour. Hence, the Black Codes were enacted to suppress the rights of the recently emancipated African Americans, and criminalise them for minor offences such as vagrancy. Under the vagrancy laws, any black person under the protection of a white person could be swept up by the system for simply loitering, as black people were rounded up in this manner to provide a source of nearly free labour.
Today, prison labour is a billion-dollar industry, and the corporate beneficiaries of this new slavery include some of the largest corporations and most widely known brands. For example, Walmart has purchased produce from farms, where women prisoners face bad working conditions, inadequate medical care and very low pay.
Workers flipping burgers and frying french fries for minimum wage at McDonald’s wear uniforms that were manufactured by prison labourers.
Further, UNICOR manages 83 factories and more than 12,000 prison labourers who earn as little as 23 cents an hour working at call centres, manufacturing items such as military body armour, and in past years, defective combat helmets. In 2013, federal inmates made $100m worth of military uniforms.
UNICOR has also provided prison labour in the past to produce Patriot missile parts for defence contractors Raytheon and Lockheed Martin, and parts for others such as Boeing and General Dynamics.
Some critics oppose the characterisation of the US prison system as a slave labour camp. For example, James Kilgoreargues that prison labour is infrequently used, and identifying multinational corporations that profit from it loses sight of the key issues behind mass incarceration.
Kilgore is correct in his analysis that a lack of economic opportunity coupled with draconian laws results in a perverse private incentive to drive up mass incarceration. We should enhance employment options for former inmates to reduce recidivism and integrate returning citizens back into society. However, this does not mean that corporations do not profit from prisons and prison labour today and it is obscene that this still happens.
The Trump administration reversing the Obama-era order to phase out private prisonsand enacting new law-and-order policies to increase arrests and fill these prisons will only increase opportunities for profit for Trump’s corporate donors and their many investments in mass incarceration. Exploiting prison labour is consistent with this troubling trend.
Over a century and a half since the abolition of slavery, the dreaded institution still lives on in another, dressed up form. Taking advantage of a constitutional loophole, corporate profiteers continue the modern-day version of the convict lease system. In the land of the free, the dollar still takes precedence over human rights, and that which can be monetised and exploited for profit will be, regardless of ethical or moral considerations.
Once again, race, criminal justice and capitalism have joined forces to deprive captive black and brown bodies of their human rights. In the age of President Donald Trumpand hardliner Attorney General Jeff Sessions, the return to “law and order” and a war on drugs signals a reversal of progress the US was making untethering itself from the expansive grip of a carceral state.
The anniversary of last year’s prison strike is a chilling reminder that one need not point to authoritarian regimes in distant countries to find examples of blatant labour rights violations. If you want to find slavery in the US, look no further than its penitentiaries, jails and detention centres where the consequences of being locked-up extend much farther than doing time.
Vijay Das is a Washington-based essayist and policy advocate who writes on social, economic and criminal justice issues.
David A Love is a Philadelphia-based freelance journalist and commentator, and adjunct instructor at the Rutgers University School of Communication and Information.
The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial policy.
The maximum 68 arrests were recorded in Bihar, ruled by the Grand Alliance of RJD, JD(U) and Congress. Most of these were made in the 2014 and 2015. Only two of the 53 persons chargesheeted during this period were convicted.
As many as 165 people were arrested on the charge of sedition in the last three years across the country, which averages to one arrest every week. In all, 105 cases were registered.The figures, compiled by the National Crime Records Bureau, were given by Minister of State for Home Hansraj Ahir in the Rajya Sabha on Wednesday.
According to the records, 111 people were arrested in four states — 68 in Bihar, 18 in Jharkhand, 15 in Haryana and 10 in Punjab — of which Jharkhand and Haryana are BJP-ruled.
The maximum 68 arrests were recorded in Bihar, ruled by the Grand Alliance of RJD, JD(U) and Congress. Most of these were made in the 2014 and 2015. Only two of the 53 persons chargesheeted during this period were convicted.
Delhi Police, under the BJP-led central government, made four sedition arrests in 2016.
Six arrests were made in Left-ruled Kerala, and one each in Congress-ruled Karnataka and TDP- ruled Andhra Pradesh.
Section 124 A of the IPC says whoever by words, written or spoken, or by signs or visible representation brings or attempts to bring hatred or contempt or excites disaffection towards the government shall be punishable with imprisonment for life or with imprisonment which may extend to three years.
In the last three years, Jharkhand has arrested 18 people for sedition, while 15 were held in Haryana. Incidentally, there were no arrests under sedition charge in Jharkhand in 2015 and 2016 when the BJP has been in power.
In contrast, all the 15 arrests in Haryana were made in 2015 and 2016 under the BJP regime. Officials said sedition cases were registered against Jat Sangharsh Samiti chief and others for allegedly threatening peace and communal harmony by instigating people to launch a fresh agitation for reservation.
The number of sedition cases, it turns out, is low in some states hit by militancy. For instance, in Jammu and Kashmir, only one case was registered in 2015 and none in 2014 and 2016.
“Fifty-eight people were arrested in 47 cases registered in 2014. The number increased to 73 in 2015 with as many as 30 cases being registered. Only 34 people were arrested in 28 cases in 2016 under the offence of Sedition (Section 124A of IPC),” MoS Home Hansraj Ahir said.
The 2016 figure excludes Uttar Pradesh and West Bengal as data from the two states were not available.
Hedi Hammami was a detainee in the United States detention facility in Guantánamo Bay, Cuba, for eight years. After his return to Tunisia, he has lived under a constant regimen of police surveillance, raids and harassment.CreditTara Todras-Whitehill for The New York Times
TUNIS — Dressed in a thick jacket and wool hat on a cool winter evening, counting the coins for his bus fare, Hedi Hammami looks like any other Tunisian on his way to work.
But he walks with a limp and sometimes pauses midspeech and screws up his face in pain. “That’s Guantánamo,” he explains. After eight years as a detainee in the United States detention facility in Guantánamo Bay, Cuba, he says he still suffers from headaches, depression and anxiety attacks from the torture and other mistreatment he says he suffered there, even six years after his release.
Married with two children now and employed as a nighttime ambulance driver, Mr. Hammami, 47, seems to have rebuilt his life. Yet the pressures of living in Tunisia’s faltering democracy, under harassment and enduring repeated raids by the police, have driven him to make an extreme request.
“It would be better for me to go back to that single cell and to be left alone,” he said recently. “Two or three weeks ago I went to the Red Cross and asked them to connect me to the U.S. foreign ministry to ask to go back to Guantánamo.”
The Red Cross refused to take his request, he said, but he insists nevertheless that at this point, that would be best for him.
“I have lost my hope,” he says. “There is no future in this country for me.”
When he was first released from Guantánamo in 2010, Tunisia was still a dictatorship under the rule of President Zine el-Abidine Ben Ali and notorious for torturing prisoners, in particular Islamists. Deemed no longer a threat to the United States, Mr. Hammami was sent to the former Soviet republic of Georgia.
After the popular uprising in 2011 that overthrew Mr. Ben Ali and set off the Arab Spring, Mr. Hammami negotiated his return to Tunisia. He timed it well, benefiting from a national amnesty for political prisoners and a program of compensation that gave him a job in the Ministry of Health.
“I hoped very much that after the revolution everything would get better,” he said in one of several interviews in his rented home in a working-class suburb of Tunis.
Yet, soon after he began work in 2013, the police raided his apartment with dogs at 3 a.m., breaking the door and hauling him down to the police station. “They made me crawl on all fours down the stairs,” he recounted.
At the police station they said they just wanted to get to know him, and let him go after 15 minutes. “That was just the beginning.”
Since then, Mr. Hammami has lived under a constant regimen of police surveillance, raids and harassment. His cellphone and computer were confiscated. When he moved to a new house, the police followed him, turning up at all hours to question him.
In December 2015 he was placed under house arrest, told he no longer had the right to work and ordered to sign in at the police station morning and evening for six weeks.
He remains under “administrative control,” and the police enforce the order at will. He cannot travel outside Tunis. Every so often, like on Sept. 11, the police order him to sign in with them. “I feel someone is doing it for revenge,” he says.
The police have also scared landlords from renting to him, forcing him to move six times in three years. His Algerian wife’s residency card was confiscated, preventing her from working to supplement his meager salary. The family is barely managing, she said, asking not to be named for fear of further police harassment.
Stress and tension from the police actions have intensified the psychological problems Mr. Hammami brought with him from Guantánamo. “I feel too much pressure,” he said, rubbing his temples. “All that blackness comes back.”
Rim Ben Ismail, a psychologist working for the World Organization Against Torture in Tunisia, who has counseled 12 Tunisians who were detained in Guantánamo, says Mr. Hammadi’s wish to return to his cell is fairly typical of the Guantánamo detainees.
“They lived with suffering, physical suffering,” she said in an interview. “But now there is a psychic suffering, and often they say, ‘Take me back there.’”
“Because of their past they are all presumed guilty and it is unlivable for all of them and their families,” she added. “The families are being threatened and harassed.” Parents in particular fear the Tunisian security forces and say they think their sons would be safer in Guantánamo, she added.
Raids have often been needlessly violent, she said; police officials break down doors and wake a suspect with a gun to his head, often in front of his wife and children. “Everything is being done to create aggression in a person,” she said. “They do not need to raid the house at 2 a.m.”
One of her former Guantánamo patients was harassed so relentlessly by police that he became suicidal and ran off to Syria, where he was killed. “He was such a gentle person,” she said sadly. “By treating these people like this you create a climate of revenge and the sense that they have no place at home.”
There is no doubt that Tunisia has a terrorism problem. It has been grappling with attacks from Al Qaeda-linked groups since 2013. The violence escalated to spectacular attacks in 2015 and 2016 that killed more than 70 people, many of them foreign tourists at a national museum and at a beach resort hotel.
Moreover, Tunisians reportedly make up the largest number of foreign fighters to have joined the Islamic State and other extremist groups in Syria and Iraq, and some have been encouraged to conduct attacks when they return home.
After an attack killed 12 members of the presidential guard in November 2015, the government imposed a state of emergency. At least 139 Tunisians have been placed under house arrest since, according to Human Rights Watch, which documented the cases in a report released in September. The sanctions have been justified in the context of countering terrorism but have “left people facing stigmatization and unable to pursue studies and work,” it stated.
International human rights officials have voiced growing concerns of abuses resurfacing in Tunisia. In a report released this week, Amnesty International accused the Tunisian police and security forces of employing repressive measures used by past dictatorships, including torture, deaths in custody, arbitrary house raids and often unlawful harassment of suspects, their families and communities.
Ben Emmerson, the United Nations special rapporteur for human rights while countering terrorism, said during a recent visit to Tunisia that human rights should be central to counterterrorism operations, noting that torture and other repressive measures fuel radicalism.
Mr. Hammami says he feels the police are pushing him that way. The son of a farmer from Tunisia’s poor northwest, he says he originally left for Italy in 1986 in search of work. There he fell in with an Islamic missionary group, Tablighi Jamaat, and later traveled to Pakistan, where he obtained refugee status.
He was arrested in Pakistan and handed over to the American military in 2002 and transferred to Guantánamo, where he was accused of training in Qaeda camps in Afghanistan. The Americans also say they found his identification papers in Tora Bora, the last redoubt of Osama bin Laden in the country, according to papers released by WikiLeaks.
Mr. Hammami, who denies going to Afghanistan or having any links to Qaeda or terrorism, was eventually released without charge.
Whatever his past, he says after nearly 20 years away, he just wants to live quietly. “I never committed a crime,” he said. “I don’t have a record, no theft, no ethics problems, nothing.”
“My only demand is to be stable, but they don’t let me live my life in stability,” he said. “They are pushing you towards death.”https://www.nytimes.com/2017/02/17/world/africa/after-eight-years-in-guantanamo-he-yearns-to-return.html?emc=eta1&_r=0
Deliberate delays and denial of bail has amounted to sentencing without trial.
Activists of the Kabir Kala Manch, perhaps one of the best known progressive cultural troupes of Maharashtra, heaved a sigh of relief on January 3 when three of their members finally walked out of jail after three-and-a-half years. A Supreme Court bench granted bail to Sagar Gorkhe, Ramesh Gaychor and Sachin Mali.
The apex court’s bail order pointed out that though the state had told the Supreme Court in July 2016 that the trial would be completed within six months, it had, till January 2017, only partially completed the examination (leave aside cross examination) of just one of the 147 witnesses it proposed to examine. Such a rate of progress in trial would have meant a lifetime of waiting for its completion. The bench ordered their release.
Method in the madness of trial delays
While it has become customary to blame the backlog of cases in courts for these seemingly crazy delays in trial, there is at the same time a method in the madness that is quite clearly at work, particularly when in comes to political dissenters.
The delays are often the fruit of a deliberate dalliance between police and prosecution to postpone service of summons, hold back witnesses, neglect bringing the muddemaal or physical evidence to court and other such means to ensure that the trial process is effectively paralysed.
This strategy is deployed because the prosecution is aware that most cases against political detainees are weak and often falsely fabricated by the investigating authority and likely to end in acquittal. These “political” cases are normally instituted under harsher laws like the Unlawful Activities Prevention Act (UAPA) and the Public Security Acts of various states. Such laws allow arrests on vaguely defined charges with insubstantial evidence. They also prescribe bail norms which render it difficult for courts to grant bail.
Inordinate delays then become the prosecution’s means for imposing a “sentence” of long years, which entails rotting in jail as an undertrial without bothering to go through the hassle of obtaining a conviction. Thus, though the accused are finally found to be innocent, the judgment offers small comfort for someone who has already spent almost the maximum possible sentence as undertrial.
Inordinate delays then become the prosecution’s means for imposing a ‘sentence’ of long years rotting in jail as an undertrial without bothering to go through the hassle of obtaining a conviction.
Protection for the perpetrators
Such tactics, while being criminal, neither hold consequences for the investigator or the prosecutor; nor are there any redressal for the victim. A classical case in this regard was related to the Akshardham Temple terror attack of 2002. Six accused in the matter remained in custody for 12 years before being finally acquitted in 2014 by the Supreme Court. The judgment, quoted then in DailyO, explained how the case had been fabricated and the accused framed through concocted statements.
The accused then filed a writ petition in the Supreme Court asking for redressal and compensation for the years lost. Despite the unequivocal observations of the 2014 SC judgment indicating that the accused had been falsely implicated, the same court refused to either punish the perpetrators or compensate the victims. If, in a case which the SC itself has held to be fabricated, there is not scope for recompense, there is obviously nothing much the judicial system can offer by way of righting such wrongs committed by the police-prosecutor combine.
Laxity of the courts
In fact it often seems that the bench too is, unwittingly or otherwise, part of a system that ensures that political dissenters are “punished” without trial. In the case of the KKM members too, though the SC granted bail, almost half of their period spent in custody was during the pendency of their application before the same court.
In another similar case of a political prisoner from Maharashtra, Sudhir Dhawale, editor of the magazine Vidrohi, the Nagpur Bench of the Bombay High Court rejected bail, but ordered a timebound trial within a period of six months — only to extend this period three times over, while each time rejecting Sudhir’s bail. He was finally declared not guilty — but only after serving a “sentence” of 40 months as an undertrial.
Reluctance to grant bail
The irony is that, even where the duplicity of the investigating agency is prima facie quite apparent, the courts have been reluctant to exercise their power to grant bail. A recent case is that of the team of lawyers and human rights activists from Telengana who, in December 2016, were on a fact-finding mission to Chhattisgarh to probe accusations of police atrocities in Bastar. Though they were arrested in Telangana they were taken across the border to Chhattisgarh so that they could be charged under the severe Chhattisgarh Special Public Security Act. The basis shown for arrest was the purported seizure of demonetised notes of one lakh, which they were allegedly taking to “help” naxalites in Bastar.
Despite the illogicality of the argument of lawyers carrying demonetised notes from Telangana to naxalites in Bastar, despite the notes being obviously planted and despite there being no law or rule in force prohibiting the possession of one lakh of demonetised notes, the bail applications of the team members were denied first by the magistrate’s court of Sukma and then by the sessions court of Dantewada. The Dantewada court felt that it was premature to grant bail.
The option of approaching the Chhattisgarh High Court in Bilaspur is not only cumbersome but also, considering the delaying tactics of the prosecution, likely to be long drawn out. The Telangana lawyers, research scholars and journalists who are part of this team will now have to prepare themselves to eke out a few months, if not more, in Bastar’s jails — a “sentence” being imposed without any realistic case at all.
Death sentence by encounter
But perhaps they should consider themselves lucky. In their very own state of Telangana, the police have taken the lead in taking this practice of delivering prison sentences to their logical conclusion. On April 7th 2015, five Muslim prisoners, who were on the verge of completion of their trial where they expected acquittal, were killed in cold blood while being taken to court. The Telangana police probably decided that they deserved not acquittal but the death sentence. They executed accordingly.
A similar dubious “encounter” killing of eight undertrial accused of the Students Islamic Movement of India whose trial was reportedly approaching acquittal was executed by the Bhopal police on October 31 2016.
Despite widespread protest by human rights organisations, the political establishment has indicated that those who have carried out these killings enjoy its support. Pehaps an indicator of the forms of justice delivery in the days to come.