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.
Egyptian authorities have arrested at least 40 human rights advocates, lawyers and political activists within the last 30 days and held them in “undisclosed locations”, Human Rights Watch has said.
“Many of those arrested were people who provided humanitarian and legal support to families of political detainees,” HRW said, calling on the government to reveal their whereabouts.
“The Egyptian security agencies’ repression now extends to disappearing those brave men and women who have been trying to protect the disappeared,” said Michael Page, HRW deputy director for the Middle East and North Africa region.
“The government apparently wants to quash what remains of Egyptian civil society.”
The rights group spoke with a lawyer and three activists who had been “in direct touch” with the families of those arrested.
One source told HRW that as many as 80 people had been arrested, but the rights group said it could verify only 40 names.
Sources told HRW that some of the detainees were close to the Egyptian Coordination for Rights and Freedoms, an independent human rights group which, it said, has come under fire from pro-government media in recent months.
Also arrested was Hoda Abdel Moneim, a 60-year-old lawyer and former member of the official National Council for Human Rights.
One of her family members said that authorities blindfolded Moneim, put her in a police car, and drove her to an undisclosed location.
Authorities also arrested Aisha Khairat al-Shater, the daughter of a former Muslim Brotherhood leader currently in detention, along with her husband, lawyer Mohammed Abu Horayra.
HRW called on Egyptian authorities to “immediately reveal all the detainees’ whereabouts, release all of those arrested solely for exercising their rights, and bring any others swiftly before a judge to review their detention”.
Since 2013, human rights groups have issued numerous reports criticising the government of President Abdel Fattah el-Sisi.
Sisi led the 2013 military overthrow of Egypt’s first democratically elected president, Mohamed Morsi, a member of the Muslim Brotherhood.
Thousands of people who share the ideology of the Muslim Brotherhood, which has since been declared a “terrorist” organisation, as well as secular and left-wing activists, have been jailed by the Sisi government since 2013.
Sisi’s supporters, however, say his tough security policy is needed to ensure stability as Egypt recovers from years of political chaos and economic decline.
Sisi won a second term last March in what critics called a “sham” election. He secured more than 97 percent votes.
The presidential elections featured only one other candidate – Moussa Mustafa Moussa – an ardent Sisi supporter who had once formed a campaign group called: “Supporters of President el-Sisi’s nomination for a second term”.
All other serious opposition contenders halted their campaigns citing intimidation and arrest.
Arundhati Roy, Aparna Sen, Romilla Thapar, Amitav Ghosh, Shabhana Azmi, Buddhadeb Dasgupta, Nandita Das, Mohammad Hanif, Anish Kapoor among other eminent persons from across South Asia have come together to write a letter to Bangladesh Prime Minister Sheikh Hasina Wazed demanding the immediate release of acclaimed photographer and cultural activist Shahidul Alam on the 100th day of his detention.
The letter states: “As well-wishers of Bangladesh and supporters of its 166 million citizens’ struggle for dignity, social justice and prosperity, we are distressed by the continued imprisonment of photographer and cultural activist Shahidul Alam.”
Alam was forcefully taken from his home on 5th August and has been held at Dhaka Central Jail for the last 100 days. He is accused of ‘hurting the image of the nation’ while reporting on protests by young students demanding road safety. He has been denied bail 5 times.
The letter notes: “Shahidul Alam is a Bangladeshi citizen, but the rest of us in South Asia are also proud to call him our own, for the values of truth, justice and social equality he promotes.”
Other distinguished persons who have joined this appeal include singer/songwriter Moushumi Bhowmik (Kolkata), Former Nepal Chief Justice Sushila Karki (Kathmandu), political scientist Jayadeva Uyangoda (Colombo), poet/critic Sankha Ghosh (Kolkata), historian/writer Ramchandra Guha (Bangalore), photographer Raghu Rai (Delhi), artist Salima Hashmi (Lahore) photographer Dayanita Singh (Delhi) among others.
The signatories state further: “It is clear to us that the case of Shahidul Alam is being used as a means to suppress criticism by others in civil society. His arrest and continued detention appear to be manifestation of an intolerant political atmosphere, an attempt to threaten and silence the voice of Bangladeshi citizens.”
The letter comes on the 100th Day of Shahidul Alam’s imprisonment.
The full text of the letter has been reproduced below:
Subject: Appeal for release of Shahidul Alam on 100th day in custody
As well-wishers of Bangladesh and supporters of its 166 million citizens’ struggle for dignity, social justice and prosperity, we are distressed by the continued imprisonment of photographer and cultural activist Shahidul Alam.
Since the founding of the nation in 1971, the people of Bangladesh have led by example, fighting poverty, ending social injustices and being standard-bearers of participatory development. This advance has been made possible by the democratic spirit of the people, who have challenged military rulers and autocrats alike. As well-wishers of Bangladesh, we fear that these gains are in danger due to the rising political intolerance and denial of fundamental freedoms.
Shahidul Alam is a Bangladeshi citizen, but the rest of us in South Asia are also proud to call him our own, for the values of truth, justice and social equality he promotes. His work and activism are respected all over our region and beyond, with innumerable friends who admire his concern for the voiceless and marginalised. One example is his latest work highlighting the tragedy of the Rohingya people, who have been given refuge in Bangladesh by your Government.
Since Shahidul Alam was forcefully taken from his home on the 5th of August, he was remanded first in Detective Branch custody for seven days and, then held at Dhaka Central Jail at Keraniganj. He is accused of ‘hurting the image of the nation’ while reporting on protests by young students demanding road safety.
It is clear to us that the case of Shahidul Alam is being used as a means to suppress criticism by others in civil society. His arrest and continued detention appear to be manifestation of an intolerant political atmosphere, an attempt to threaten and silence the voice of Bangladeshi citizens. With the country preparing for general elections, this is a time when there should be more space for debate and discussion, not less.
As believers in the rule of law, we are shocked to learn that government lawyers continue to oppose Shahidul Alam’s release on bail using various stratagems and delays intended to deprive him of his fundamental rights to liberty and due process. Across South Asia, politicians and citizens have fought for the right to speak, and to write, and it is astonishing to us that a government today, especially one which seeks to harness technology for progress, should choose to use a law to proscribe online speech to jail a citizen.
Prime Minister, we the undersigned urge you to ensure the release of Shahidul Alam on this, the 100thday of his detention. We look forward to Bangladesh retaining its place as an exemplar of participatory democracy in South Asia.
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.*
The Jammu and Kashmir Police have arrested a journalist working with a Srinagar-based magazine.
Journalist Aasif Sultan, who works with the Kashmir Narrator, was picked up from his home in Batamaloo on Monday night allegedly for questioning. His family claims he is under illegal detention for past six days and the police has not released him since then.
Showkat A Motta, the editor of the magazine, rejected the police’s claim that they would keep him in detention for a day and release him in the evening.
Tariq Ali Mir, Sultan’s colleague, posted took to Facebook and said the police questioned Aasif for his cover story in the previous issue of the magazine on slain militant commander Burhan Wani and his ideology. Tariq added that the police also took away Sultan’s laptop, cell phones and other documents during the raid. He said the Kashmir Narrator has taken up the issue with international media watchdogs such as the IFJ and the CPJ.
The Kashmir Working Journalist Association (KWJA) and the Kashmir Journalist Association (KJA) demanded disciplinary and legal action against police officials for violation of the fundamental rights of an individual through prolonged illegal detention.
“We demand his immediate release from illegal custody and action against police officials in charge of the station and SP of South Srinagar for keeping a journalist under illegal detention for a week,” a joint press statement of the journalist bodies said.
“We have learnt that Sultan is being questioned for his report on Wani, published in a recent issue of Kashmir Narrator, along with other stories and has been asked to report his sources to police”, the journalist bodies said.
Motta said the police have been delaying Sultan’s release through hollow assurances. He claimed South Srinagar’s Superintendent of Police GV Sundeep Chakravarthy questioned Sultan about his “political ideology”.
When contacted by Outlook, Chakravarthy said the journalist was called for questioning for past six days. He said the police would call him in the morning and release him in the evening.
He also said the police found evidence of Sultan being involved in unlawful activities. He was presented before the court and later sent to police custody. Chakravarthy, however, refused to reveal details about the “unlawful activities”.
“It is no secret that police and intelligence agencies have been trying their best to police the media in Kashmir, and harassing the media organisations and journalists has been a routine, but we want to make it clear that the journalist fraternity will fight such efforts tooth and nail,” the joint statement said.
“We are seeking release of Sultan at an earliest and ask the government and police chief to explain the laws and rules under which he has been kept in lockup for the past six days.”
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
Many, perhaps most, of our societies would consider it a taboo to let sentence-serving convicts mingle with ordinary citizens. The fear of prisoners being habitual law-breakers is enough to deter most governments from letting them outside jails. But this norm has been challenged with interesting results.
Take the case of Rajasthan, which took inspiration from a few other states and introduced an imprisonment model that is humane and more economical than traditional prisons. In fact, if all goes well, the Supreme Court may ask others states to similarly do away with iron bars and concrete walls – typical markers of gaols.
Such open prisons allow convicts to live with their families, go out every day to eke out a living and return in time for the evening roll call. In case anybody falls back onto criminal ways, s/he is sent to a traditional closed prison.
There are 63 such open jails in 15 states now; Rajasthan accounts 29 of them.
In 2013, the apex court took suo moto cognisance of the inhuman conditions prevalent in 1,382 Indian jails. Since then it has been passing orders to improve their conditions, highlighting the Right to Life and Personal Liberty as guaranteed by Article 21 of the Indian Constitution.
Last December the top court ordered the Union Ministry of Home Affairs (MHA) to hold a meeting of the Directors-general and Inspectors-general of Prison of all states and Union Territories (UT) to examine the possibility of opening such prisons in every district. The court also asked MHA to seek response to the idea from all states and Uts. It also asked National Legal Services Authority to similarly seek the views of state Legal Services Authorities.
Much of the basis of such observations from the Supreme Court was a report on the Rajasthan’s open prisons by Smita Chakraburtty. The court directed that the MHA meeting be held in the first week of February, and that it includes Chakraburtty. Catch spoke to her when she was in Delhi for the hearing, which has been postponed. Edited excerpts of the interview:
Akash Bisht: Why do we need open prisons? How did you take up this issue?
Smita Chakraburtty: Overcrowding is a major issue in prisons. During my visits to prisons in Bihar, I found there was not even enough space for inmates to sit. One ward I visited had a capacity of two but housed 25 prisoners. The inmates said they took turns to sleep; some even tied themselves to bars so that they could sleep standing up.
In 2014, Patna High Court SSLA VN Sinha asked me to ispect prisons in Bihar and prepare a report. I visited all 58 prisons there, spoke to 30,070 prisoners on record and filed a report that was published by the court. The National Human Rights Commission and a Parliamentary Standing Committee took cognisance of it.
Later, the DG (Prisons) of Rajasthan asked me whether I have visited any open prison. I informed him about my visits to such prisons in Bihar and West Bengal.
He told me how such jails in Rajasthan were different – family members were living with inmates, who were also working. He narrated a very interesting incident: inmates of an open prison in Sanaganer didn’t want to leave even after their terms ended. He would have to evict them and they were fasting in protest. I had never heard of prisoners being evicted earlier. All prisoners I interviewed wanted to e free, inclusing those in an open prison in Buxar.
When I spoke to the prisoners in Rajasthan they wanted extensions, saying they might not get similar employment as they had in jail after release. Then, I began studying Rajasthan’s open prison system.
SLSA Chairman Justice KS Jhaveri, who is from Gujarat, found it interesting and asked whether inmates would flee from such open prisons. After I told him how they were reluctant to leave, he commissioned a study that was taken up by the SC.
AB: Rajasthan is a success story. How did the concept of open prisons emerge there?
SC: RK Saxena, a former superintendent at Ajmer Model Prison, led a change. Some prisoners were given a chance to reform: they were allowed to live in open prisons with their families. Saxena drafted the rules that led to the creation of the first open prison in Durgapura near Jaipur in 1954-55. He started the Sanganer open prison.
When the convicts were shifted to Sanganer, people raised questions about safety and security. Saxena told them “you should get to know the inmates”. The then chief secretary supported the initiative. Saxena believed if you keep a prisoner in open prison, the onus of liberty is on the prisoner.
Now Rajasthan has 30 prisons and the government is planning to open more such prisons. Since it started here, we would want to take a lead and the judiciary too is extremely interested.
AB: How has the other states responded?
SC: During the MHA meeting, it seemed that the state governments had doubts. Open prisons are already part of the system and state governments said that they are reading my report. They are not negating or accepting it. They are saying we have two, we will open five more. That is a beginning and it is a positive response. Though there is a misunderstanding that open prisons are expensive to construct.
But what I am suggesting is that in the Rajasthan model there are no fixed structures – like Jyetsar where there are only clay structures. There is no electricity, but prisoners never complain. If you keep a prisoner in a Jyetsar who comes from a farming community, he will have no problem living in Jyetsar where there are huge farms. The farm owners come every morning and take them in tractors to work, feed them lunch, pay them wages and drop them back.
AB: What about social acceptability to open prisons?
SC: In Sanganer, when it started, the locals filed a complaint with the government and then chief secretary asked Saxena for a solution. He then suggested that let the prisoners go out and let outsiders also come to prison. At that time, there was a doctor and the locals would come visit him for treatment.
Prisoners in Sanganer, some of whom have been convicted for murder, work as security guards, domestic help, barbers, daily wagers, accountants, teachers, auto drivers, among others. There are some big restaurants in Sanganer which are being run by former prisoners. Also, a factory has been set up by a former prisoner. These all people employ former prisoners so there is a sort of social acceptability.
AB: Is there any criteria for whom can be sent to these open prisons?
SC: Yes, there is a criteria. It says if you are convicted and have spent five years in prison. A prisoner is also judged on his conduct. However, in reality, there is less space in open prison as compared to close prison. So, it is done on the basis of seniority.
AB: How would anyone know if someone is engaging in criminal activities in an open prison?
SC: For that one has to conduct surprise inspections. Second, if someone commits a crime, the police would be the first to know. If they find that someone from the open prison has done it, he would be sent to closed prison immediately.
Also, a criminal is constantly under the gaze of the society. In an open jail, just assume that there is a huge fight in the prison, the locals are bound to report it. Interestingly, in Sanganer, there is no domestic violence because the prisoner knows that if he gets reported, he would be sent back. They have to maintain good conduct.
AB: Won’t a victim’s family think the idea of justice gets diluted that in an open prison as inmates live a normal life?
SC: According to law, anybody in conflict with law is imprisoned. It does not mean it has be a closed prison. This is just a humane way. I am not saying that the prisoner is innocent. A common man might say that he killed my brother and he is walking freely. But, the convict is not living at home, he is living in a prison. He is bound by some rules and regulations. His imprisonment is the justice that you get.
Criminalisation is not a solution to crime or a social reform. That can only happen if prisoners live in an open prison. Every prisoner in an open prison is also a message to the society that if you do anything illegal, you might end up like them.
As far as the victim is concerned, he might want the accused to be hanged but the justice system doesn’t work like that. It has to be just to the victim as well as the accused. For me, open prisons should be the norm and closed prisons the exception. Also, if someone escapes on parole from open prison, I use it as a means to justify to victims that how open prisons are also like real prisons. Prison is also a psychological thing.
AB: Why do you say open prisons are more economical?
SC: What is the point of spending crores on a sense of security that doesn’t even exist? Why do you keep convicts in prisons? It is just for the sake of social security.
In my report, I have said get Vijay Mallya back and let him be in an open prison, considering it is a matter of international shame that our prisons are inhuman.
Jaipur Central Jail has an annual budget of Rs 18 crore while Sanganer’s annual budget is only Rs 22 lakh. I am not even calculating the architecture and land cost. When it comes to open prison, in Sanganer the cost per prisoner is Rs 500 while in Jaipur it is between Rs 7,000 and Rs 10,000.
AB: What is Bandi Panchayat?
SC: It was started by Saxena. Bandi panchayat is an elected five-member committee with a one-year term set up for administrative control. They take care of basic conducts like someone fighting or drinking. They control by warning prisoners. They can complain to the prison department about a certain individual and he would be sent back.
If any individual creates nuisance, the bandi panchayat tells them that if the locals complaint the entire open prison could be shut. So, for the liberty of all, we have to be careful and that is why we keep an eye on you. It is a process of self discipline.
AB: What is your opinion about keeping undertrials in such prisons?
SC: The case for undertrials is even stronger. In the court of law, it has been proven that convicts have perpetrated a crime but when it comes to undertrial, you know he is not convicted. So, he is on a better footing and legally he has not yet received the tag of a criminal.
If you keep someone in prison for five years and then acquit him, his life is destroyed. So, this is more humane because he continues to live his life. Prison becomes a regressive method because when he comes back, he is a social reject and then is more likely to commit another crime.