A prison diary from Tihar, by Natasha Narwal and Devangana Kalita

 

In these times of suffering brought on by the pandemic, it is imperative for the Indian judiciary and the state to ensure the right to life of the people it continues to hold in its custody and not let prisons become graveyards of human rights and dignity.

“Aisa lagta hai kabr mein aa gaye hain, na koi awaaz bahar ja sakti hai, na koi awaaz andar aa sakti hai” (It feels like we have entered a grave, no one can hear us and we cannot hear anyone) — a piercing observation made by one of our co-inmates last year, as we lived the deadly second wave of the pandemic inside Tihar’s women’s prison, Jail No.6. With the third wave currently unfolding, urgent attention must be paid to the terrible conditions under which one of the most neglected groups of this country is surviving — India’s prison population. The latest NCRB data tells us that 76 per cent of prisoners are undertrials with a stark overrepresentation of Dalits, Adivasis, Muslims and other minority communities amongst both undertrials and convicts.

The days of incarceration when the second wave was devastating lives outside and inside, its pain and horror, continue to haunt us. Tihar’s women’s prison witnessed a massive spread of the virus. We watched helplessly as cases emerged from one overcrowded ward after another. We mourned the deaths of our co-inmates far away from their homes. We waited in restless dread for the next day’s five-minute phone call for what news it may bear of our loved ones outside. We began to confront the fear of our own deaths inside that wretched place. On contracting the virus, a prisoner would be shifted to the “Corona ward”, while the barrack where the case was detected would become a “quarantine” barrack for the next 14 days where the inmates inside were locked up 24/7. Since cases kept emerging from every barrack, most of us lived in a state of permanent quarantine. We spent many heart-breaking days and nights listening to the shattering cries of little children when their barrack came to be quarantined.

Our barrack mate and co-accused, Gulfisha, suffered high fever, severe head and body ache, sleeplessness and loss of appetite. Identified as “symptomatic”, she was put in a tiny suffocating cell with two other inmates. Her Covid was never detected because no RTPCR tests were available — only a limited number of antigen tests were being conducted. Testing kits were in short supply, along with all other equipment such as sanitisers, masks, gloves, PPE suits. Barracks full of symptomatic patients were given a liberal supply of paracetamols, cetirizine, cough syrups and various other drugs through untrained inmates who had to work as paramedics in the absence of a requisite number of trained medical staff.

During the initial days of the outbreak, access to mulaqaats/phone calls/letters/newspapers was terminated. Imagine contracting the virus, being shoved into an overcrowded diseased barrack or a lonely cell all alone, provided negligible medical attention and allowed no contact with your family or friends at a time when you most desperately need it. It was only after the intervention of the Delhi High Court that some of these facilities were resumed inside prison and vaccination of inmates was undertaken. Family and legal mulaqaats in prison have remained suspended through most of the last two years. Even as the facility of e-mulaqaats came to be instituted in August 2020, families of most inmates do not possess smartphones or the digital literacy for accessing the same. Additionally, as a result of courts becoming online and visits by judges or government bodies being discontinued during the pandemic, the impunity that rests in the hands of the jail administration has come to be strengthened. The minimal mechanisms of redressal available to prisoners with regard to discrimination and abuse by prison staff have thus ceased to exist.

Indian prisons have always been overcrowded. In Delhi for example, against a sanctioned prison population of 10,024, the three jails — Tihar, Mandoli and Rohini — have around 19,000-20,000 prisoners. The infrastructure and facilities simply do not exist inside prisons to be able to handle and mitigate a pandemic of this scale. The Supreme Court of India took suo motu cognisance of this issue and on March 23, 2020, issued guidelines for state/UT-wise formation of High Powered Committees (HPC) for the decongestion of prisons. However, the criteria decided by the HPCs of different states for interim release of prisoners, instead of being based on the fundamental principle of equality of all human life, create an arbitrary categorisation of prisoners that deserve to live, based on nature/severity of offence, number of years of sentence but not factors like age, health, comorbidities and other vulnerabilities. So, despite being at “high risk” of mortality, because an undertrial/convict may be charged under certain laws like UAPA, sedition, NDPS or is a foreigner, they are not entitled to interim bail/parole. The online functioning of courts meant that trials couldn’t commence or remained suspended, further prolonging the incarceration for undertrials charged under these sections.

Such unfair criteria in the grant of interim bail are the reason why Father Stan Swamy was not granted bail last year and died in custody, and G N Saibaba, a 90 per cent disabled former Delhi University professor continues to be incarcerated after having contracted Covid once again in Nagpur Jail. These are the names we know but our prisons are filled with hundreds of such undertrials and convicts who are most at risk from the virus but have been denied access to any form of interim relief. Like Elsie, who was from Bolivia and lived in our ward. Despite her co-morbidities, as a foreigner and an NDPS undertrial, she was not eligible for the HPC’s interim bail criteria and died inside prison, thousands of miles away from her two little children whose faces she longed to see. She was put to rest inside prison premises as her family did not have the resources to reclaim her body. Even in death, there was no freedom.

In these times of suffering and despair brought on by the pandemic, it is imperative for the Indian judiciary and the state to ensure the right to life of the people it continues to hold in its custody and not let prisons become graveyards of human rights and dignity.

Written by Natasha Narwal , Devangana Kalita

Source: Indian Express, 24/01/22

Across India, minorities are overrepresented in jails

 

Christophe Jaffrelot, Maulik Saini write: This is a clear indication of the communalisation of the police that tends to prevail, irrespective of the ideology of the ruling party.

The National Crime Records Bureau (NCRB) reports show that in almost all the states of the Indian Union, irrespective of the party holding office, religious minorities are over-represented in jail.

Muslims are a case in point. During UPA II, they represented 21 to 22.5 per cent of the “undertrials” and under NDA II (from 2014 to 2019) 19 to 21 per cent. But law and order being a state subject, this question needs to be scrutinised at this level. Muslims are (and were) over-represented among jail inmates in almost all the Hindu-majority states: In Assam, Muslims, according to the 2011 census, are 34 per cent of the population and they represent 43 to 47.5 per cent of the “undertrials”; in Gujarat, Muslims are 10 per cent of the population and since 2017, they have been about 25 to 27 per cent of the “undertrials” (they were 24 per cent in 2013); in Karnataka, Muslims are 13 per cent of the population and they are 19 to 22 per cent of the “undertrials” since 2018 (they were 13 to 14 per cent in 2013-2017); in Kerala, they are 26.5 per cent of the population and 28 to 30 per cent of the “undertrials”; in MP, Muslims are 6.5 per cent and 12 to 15 per cent of the “undertrials” since 2017 (they were already 13 per cent in 2013); in Maharashtra, Muslims are 11.5 per cent of the population, and their percentage among the “undertrials” peaked at 36.5 per cent in 2012 (it went back to its 2009 level, 30 per cent, in 2015); in Rajasthan, Muslims are 9 per cent and they represent 18 to 23 per cent of the “undertrials” (they were 17 per cent in 2013); in Tamil Nadu, Muslims are 6 per cent, and 11 per cent of the undertrials since 2017; in Uttar Pradesh, Muslims are 19 per cent of the population, and 26 to 29 per cent of the “undertrials” since 2012; in West Bengal, Muslims are 27 per cent of the population, and they represent more than 36 per cent of the “undertrials” since 2017. The only major state where Muslims have been under-represented among the “undertrials” is Bihar, where the latter are 15 per cent when Muslims constitute 17 per cent of the population.

The over-representation of Muslims in jail is to some extent a reflection of the communal bias of the police. In many states, the percentage of “convicted” Muslims is much lower than their percentage amongst “undertrials”. Take 2019: The percentage drops from 47.5 per cent of “undertrials” to 39.6 per cent of “convicted” in Assam; from 19.5 to 14 per cent in Karnataka; from 31 to 27 per cent in Kerala; from 12 to 10 per cent in MP; from 30 to 20 per cent in Maharashtra; from 18 to 17 per cent in Rajasthan; from 29 to 22 per cent in UP. These data show that when the judiciary, at last, take up the cases of many “undertrials”. the judges realise that there is not enough evidence and they release people who have spent a lot of time — years sometimes — incarcerated for no reason. The police and judiciary are, therefore, somewhat at cross purpose in many states, to such an extent that the share of the convicts is not much larger than the share of the Muslims in many states, including Karnataka, Kerala and even UP. At the pan-Indian level, the proportion of Muslim convicts was 2.5 percentage points above the percentage of Muslims in the population, according to the 2011 census (14.2 per cent).

The police and the judiciary are on the same page in only a few states. The percentage of Muslim “convicts” is equal to the percentage of Muslim “undertrials” in only one state, Tamil Nadu (11 per cents) and the former are more than the latter in only three states: Gujarat (31 against 25 per cent), West Bengal (38 against 37 per cent) and Bihar (18 against 15 per cent).

If Muslims are overrepresented among jail inmates in most of the Hindu-majority states — among “undertrials” more than “convicts” — Hindus are overrepresented among jail inmates in the only Muslim majority state, Jammu and Kashmir. In this state, where Hindus represent 28.5 per cent of the population, they were 34 to 39.5 per cent of the “undertrials” between 2014 and 2019 and were even more over-represented among convicts — between 42.6 and 50.5 per cent. Muslims, 68.3 per cent of the state population, followed the opposite trajectory: Their percentage of “undertrials” (between 60.5 per cent and 56 per cent) was much higher than their share of the “convicts” (between 53 and 43 per cent). Similarly, in Punjab, Sikhs — 58 per cent of the population — tend to be under-represented among the undertrials at 51 per cent in 2019 and 52 per cent in 2018, whereas Muslims (2 per cent of the population) are over-represented at 4-5 per cent.

These detailed figures suggest something very disturbing: In almost every state, the minorities are over-represented in jail and the majorities are under-represented. This is a clear indication of the communalisation of the police that tends to prevail, irrespective of the ideology of the ruling party. One of the only ways to correct this state of affairs could be the recruitment and promotion of policemen from minority communities. Indeed, Muslims are under-represented among the IPS officers, except in J&K.

Written by Christophe Jaffrelot , Maulik Saini 

Source: Indian Express, 10/12/21

Ripe for prison reform

Political will is crucial to reform India’s criminal justice system

In an acknowledgment that the more than a century-old system of prisons in India needs repair, the Supreme Court, late last month, formed a committee on prison reforms. Headed by former Supreme Court judge, Justice Amitava Roy, it is to look into the entire gamut of reforms to the prison system. But this is not the first time that such a body is being set up, examples being the Justice A.N. Mulla committee and the Justice Krishna Iyer committee on women prisoners (both in the 1980s).

While marginal reforms have taken place, these have not been enough to ensure that prison conditions are in tune with human rights norms.

Punish or reform?

The terms of reference for the new committee are omnibus and seem ambitious. One must also not forget that its formation comes at a time when controversy surrounds the Tamil Nadu government’s recommendation that the seven convicts in the assassination, in 1991, of former Prime Minister Rajiv Gandhi be released. The plea of the petitioners is that however heinous the crime, the penalty imposed — they have served 27 years — was beyond endurance.

This is the crux of the debate: incarceration in any form is uncivilised, especially when it is so long-drawn-out, and when the objective of criminal punishment should be one of reform rather than wreaking vengeance on a perpetrator of crime. The Hammurabi Code, it is argued, is no longer acceptable. In my view, any exercise to improve prison conditions — though not directly related to a plea for mercy, such as convicts in the Rajiv Gandhi case — must not ignore this axiom.

There is a divide here. Significantly, those pleading for clemency in this case are outnumbered, which is reflective of popular sentiment that a gruesome crime needs to be dealt with severely. It is also about the unresolved conflict in attitudes about incarceration — punishment or reform — which also explains the halfway jail reforms agenda seen in many countries.

So how do we render conditions within prisons less harsh and more humane? There are those who believe that if you keep improving prison conditions, there is likely to be an attendant impact on the incidence of crime. This accounts for the reluctance of many criminal justice administrators to employ or enlarge non-prison alternatives such as community service.

The offshoot of all this is growing numbers of prisoners and the woeful incapacity of governments to build more and larger prisons. The question often asked by governments is, in these days of extreme fiscal stress, why should state resources be diverted to a ‘negative exercise, whose benefits are dubious’? This is why jail officials are often asked to ‘somehow manage’ with existing modest facilities.

Packed to the gills

The data on prison overcrowding are frightening. Except in parts of Europe, where crime is still low or at acceptable levels, overcrowding is rampant.

In the U.S., for example, which has a humongous crime problem, complicated by gun violence and a strident racist overtone in combating crime, the prison system is creaking under the stress of numbers. At any time, it is estimated, there are more than two million prisoners in state and federal prisons. In the U.K., the latest available data (July 2018) show a current prison population of approximately 92,500.

In India, the publication, Prison Statistics India, brought out by the National Crime Records Bureau will provide food for thought for the Justice Roy Committee. In 2015, there were nearly 4.2 lakh inmates in 1,401 facilities, with an average occupancy rate of 114% in most. About 67% of total inmates were undertrials, a commentary on the speed and efficiency of India’s criminal justice system.

There is an obvious poverty of ideas in justice administration. While public officials and social workers are agreed upon the need to reduce overcrowding, there is hardly any convergence on how to go about this delicate exercise. There is also an obvious fear of backlash against any move to decriminalise what is now prohibited by statutes.

Handling white collar crimes

There is a popular view that in order to reduce prison populations, proven non-violent offenders could be dealt with differently. But it is frustrating that no consensus has evolved across the world on this relatively uncomplicated issue.

White collar crime has assumed monstrous proportions but there is no reason why we should continue to lock up offenders instead of merely depriving them of their illegal gains. Devising swift processes of attachment of properties and freezing of bank accounts are alternatives to a jail term. There are legal impediments here, but these can be overcome by ensuring a certain fairness in the system, of the state taking over illegally acquired wealth. The argument that not all gains made by an economic offender are open is not convincing enough to opt for incarceration over punitive material penalties. In India, progress has been made in freezing ‘benami’ holdings of major offenders even though it may not be a 100% effective step of cleaning up. But these are the first steps towards making economic crimes unaffordable and unattractive for the average offender.

On prison officials

Another complaint against prisons is the brutality and venality of prison officials, again common across the world. A solution will be a point to ponder over for the Justice Roy Committee.

Finally, improving prison conditions has no political leverage. Just as humane prisons do not win votes, the bad ones do not lose votes for any political party. As long as there are no stakes here for lawmakers, one can hardly hope for model prisons, where inmates are accommodated with due regard to their basic human needs and are handled with dignity.

R.K. Raghavan is a former CBI Director

Source: The Hindu, 23/10/18

Gross misuse: on States using 'Goondas Act'

The Supreme Court’s caution against use of ‘Goondas Act’ for arbitrary detention is timely

Preventive detention laws in the country have come to be associated with frequent misuse. Such laws confer extraordinary discretionary powers on the executive to detain persons without bail for a period that may extend to one year and courts tend to review them on the touchstone of strict adherence to the prescribed procedure. Sometimes they question the invocation of the draconian power when sufficient provisions are available in the ordinary laws of the land. Several States have a law popularly known as the ‘Goondas Act’ aimed at preventing the dangerous activities of specified kinds of offenders. In a recent order, the Supreme Court has questioned the use of words such as “goonda” and “prejudicial to the maintenance of public order” as a “rhetorical incantation” solely to justify an arbitrary detention order. It struck down the detention of a man who had allegedly sold spurious chilli seeds in Telangana, holding that the grounds of detention were extraneous to the Act. This detention order has captured what is wrong with the frequent resort to preventive detention laws. It stated that recourse to normal legal procedure would be time-consuming and would not be an effective deterrent against the sale of spurious seeds. Therefore, it claimed, there was no option but to invoke the preventive detention law to insulate society from the person’s evil deeds. The court rightly termed this as a gross abuse of statutory powers.

The Goondas Act is meant to be invoked against habitual offenders, but in practice it is often used for a host of extraneous reasons. The police tend to use it to buy themselves more time to investigate offences and file a charge sheet. At times, it is used merely to send out a “tough message”. For instance, four persons seen in video footage of women being molested in Rampur in Uttar Pradesh were detained under the Act even though it was not clear if they were habitual offenders. And there are times when preventive detention is overtly political. The recent detention of four political activists in Chennai under the Goondas Act is a direct result of a pathological tendency in Tamil Nadu to crack down on any kind of political activity even remotely linked to the Sri Lankan Tamils issue. The detention of Thirumurugan Gandhi, leader of the ‘May 17 Movement’, a pro-Tamil Eelam group, and three of his associates under the Goondas Act is a brazen violation of their fundamental rights and another instance of abuse of the law. The case involved nothing more than violation of prohibitory orders to hold a candle-light vigil in memory of Sri Lankan Tamils who died in the last phase of the civil war in 2009. Those who authorise such preventive detention for flimsy reasons should understand that prevention of crime needs an efficient system of investigation and trial, and not draconian laws.

Source: The Hindu, 3-06-2017

Reform Prisons





Reduce incarceration periods for undertrials who have not been convicted

The Law Commission is reported to have finalised recommen dations for reform in bail jurisprudence. Specifically , the commission is expected to recommend release of undertrials who have served one-third of their maximum possible sentence.This will be a welcome reform of India's dysfunctional criminal justice system which moves at a glacial pace, and the government should accept it. India's jails are overcrowded and a majority of prisoners are undertrials. Providing relief to them will not only be a humane move, it will reform today's counterproductive system where long periods of incarceration for alleged petty crimes give rise to hardened criminals.An undertrial is a prisoner in jail during an investigation, an unconvicted prisoner. At the end of 2015, Indian jails had 2.82 lakh undertrials.
Close to half of them are below the age of 30, often with limited education. A little over a decade ago, the criminal procedure code was amended to provide for their release on a personal bond if they had served half of their term. But this law is seldom followed.In 2014 the Supreme Court had to direct the criminal justice system to follow the law.
Therefore, on this occasion the government should not only accept the recommendation but also nudge different parts of the criminal justice system to comply . As states oversee prisons there is a lot they can do to ease the burden of a burgeoning undertrial population. For example, Tamil Nadu allows people arrested to be released on their bond till a charge-sheet is filed. Subsequently , the state's legal aid tries to help impoverished prisoners in for petty crimes.However, the last decade's experience shows that it is not enough just to change the law. The justice system must also follow suit.
Source: Times of India, 25-05-2017

Sex offender registries don’t work

They have failed to reduce sex crimes in countries where they exist, and have resulted in severe hardships to former offenders

Last month, Minister for Women and Child Development Maneka Gandhi once again reiterated the need to set up a national sex offender registry after a convicted sex offender allegedly confessed to raping hundreds of girls for over 10 years in New Delhi. These registries are not a novel suggestion. They have been operational in the United States, the United Kingdom, Australia, Canada and a few other English-speaking countries for more than a decade.

Sex offender registration laws typically require offenders convicted of a sexual offence to periodically check in with law enforcement agencies, such as the police, informing them about where they are residing, their place of employment, and provide details of their physical description. In addition, these laws often place severe restrictions on where a previously convicted sex offender can reside and work. This in theory is meant to aid officials to track and monitor former sex offenders. The laws in the U.S. and South Korea go even further. They allow the public to access these records so that the community may be aware of a sex offender in their locality. This data is generally accessed through websites that will provide you the name, physical description, address, and photo of all the sexual offenders near you. Ms. Gandhi has vouched for a similar system in India where the public can have access to such records.

Impact on crimes

While sex offender registration laws and public access to these records create a sense of security to parents and residents, they have failed in making any significant difference in sex crimes. Sometimes they create more harm than good. Even in the U.S., where stringent registration laws with public access have been around for over 30 years, several independent studies arrive at the same conclusion: that these registers are simply not reducing sex crimes. A comprehensive study conducted by J.J. Prescott and J.E. Rockoff in 2010 conclude that although basic registration laws through which officials may track former offenders shows a marginal reduction in recidivism (namely, reoffending) by 1.1%, public notification laws, through which the public have full access to this data, undo this effect and instead result in an actual increase in reoffending. J.J. Prescott and J.E. Rockoff in their report note that, “notification laws may harden registered sex offenders, however, making them more likely to commit additional sex offences, perhaps because criminal behaviour is relatively more attractive for registered sex offenders living under a notification regime.”

The failure of these registries to show any empirical evidence of reducing crimes or reducing recidivism is significant while comparing the tremendous associated costs and damage they impose on law officials and former convicts. With no positive outcomes from these registries, these laws disproportionately result in severe hardships to former offenders. As a consequence of being on the register, former convicts often find it very difficult to gain meaningful employment and have very limited options in finding housing as many localities are proudly branded as ‘Sex Offender-Free Zones’. Several studies find that because of open and free public access to these registries, former convicts often face threat, harassment and violence from other members of the community. Their status as former sex offenders has the effect of stigmatising them for life, rendering reformation and a dignified life after prison impossible.

A troubling aspect of Ms. Gandhi’s suggestion is that she wants to include even juveniles and persons standing on trial for sexual offences to be on the register. The hasty proposal to include even undertrial persons on the register ignores a basic consideration for civil rights of an accused person and the disproportionate impact it would have on their lives while only being accused of an offence. Similarly, the proposal to put children on a sex offender register displays a complete lack of understanding of their rights under the Constitution and our international obligations under the UN Convention for the Rights of the Child (UNCRC).

Framing sexual offences

More importantly, before proposing a sex offender registry it is significant to have a look at how our sexual offences have been framed. At present, the Protection of Children From Sexual Offences Act, 2012 criminalises consensual sexual intercourse with minors and between minors. Two 17-year-olds who have consensual sexual intercourse with each other can be imprisoned for a minimum term of seven years under this law if convicted. A brief look at the cases registered under POCSO Act is sufficient to tell us that most special courts are now barraged with romantic cases instigated through complaints filed by objecting parents. In the state of the current law, a person could possibly face the consequences of being on the register for a lifetime for having a consensual sexual relationship.

To effectively tackle the incidence of sexual offences will require a hard look at our own institutional failure in tackling these cases. The rate of conviction for the offence of rape is at an abysmal 29% and worse still, the rate of pendency for rape cases is at a staggering 86.2% (National Crime Records Bureau, 2015). A study conducted by the Centre for Child and the Law, NLSIU (2016) on the functioning of children’s courts in Delhi found that 67.5% of victims do not even testify against the accused. The study further found that conviction resulted only in 16% of the child sexual abuse cases in Delhi.

With a poor conviction rate and a majority of cases still pending before courts, how would a register aid in preventing sexual offences by former convicts? Even in the present case, where the former convict allegedly confessed to raping hundreds of girls over a period of 10 years, we must question why the investigative machinery failed completely. What happened to the complaints and investigations into these cases assuming that at least some of them registered a complaint? Why did it take a decade for them to nab a dangerous criminal? Where is the institutional set-up and mental health evaluations to deal with violent sex offenders and paedophiles?

In the background of weak investigative and institutional machinery and overwhelming evidence showing that these sex offenders registries simply don’t work, Ms. Gandhi’s suggestion that the recent attacks in Delhi could have been prevented if a national sex offender registry had been implemented seems far-fetched and unrealistic. The Delhi attacks expose the glaring gaps in our existing systems that need to be urgently addressed before we jump to formulating new solutions.

Shruthi Ramakrishnan is an advocate & independent legal researcher. She may be contacted at shruthiramakrishnan0@gmail.com.

Source: The Hindu, 13-02-2017

Two-thirds of prisoners in India are undertrials’

The ‘Prison Statistics India 2015’ report was released by the National Crime Records Bureau (NCRB) on Monday. Here are five things the data tells us about the state of Indian prisons.

The problem of overcrowding

The report calls overcrowding as “one of the biggest problems faced by prison inmates.” It results in poor hygiene and lack of sleep among other problems. “Keeping in view the human rights of the prisoners, it is essential that they are given reasonable space and facilities in jails,” the report says.

The occupancy rate at the all India level at the end of 2015 was 114.4 per cent.

Look at the map below. The red-coloured states have overcrowded prisons while the green ones have adequately managed their prison population.

At 276.7 per cent, Dadra & Nagar Haveli is reported to have most overcrowded prisons, followed by Chhattisgarh (233.9 per cent), Delhi (226.9 per cent), Meghalaya (177.9 per cent) and Uttar Pradesh (168.8 per cent).

Two-thirds of the prisoners are undertrials

Sixty-seven per cent of the people in Indian jails are undertrials — people not convicted of any crime and currently on trial in a court of law.

Among the larger States, at 82.4 per cent, Bihar had the highest proportion of undertrials, followed by Jammu & Kashmir (81.5 per cent), Odisha (78.8 per cent), Jharkhand (77.1 per cent) and Delhi (76.7 per cent).

Three States from the Northeast also had a high proportion of undertrials: Meghalaya (91.4 per cent), Manipur (81.9 per cent) and Nagaland (79.6 per cent).

On an average, four died every day in 2015

In 2015, a total of 1,584 prisoners died in jails. 1,469 of these were natural deaths and the remaining 115 were attributed to unnatural causes.

Two-thirds of all the unnatural deaths (77) were reported to be suicides while 11 were murdered by fellow inmates — nine of which were in jails in Delhi.

Foreign Convicts

Over two thousand foreign convicts (2,353) were lodged in various jails in India at the end of 2015. The highest number of foreign convicts — 1,266 — were in jails of West Bengal, followed by Andaman & Nicobar Island (360), Uttar Pradesh (146), Maharashtra (85) and Delhi (81).

Prisoner Profile

Seventy per cent of the convicts are illiterate or have studied only below class tenth.

Source: The Hindu, 24-10-2016

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1,584

Preventing death in custody

While the liberty of a person in custody can be curtailed according to ‘procedures established by law’, it cannot be stretched to extinguish life.

Seven weeks after a 25-year-old inmate allegedly hanged himself in the Puzhal Central Prison in Chennai, P. Ramkumar, the sole accused in the murder of Infosys techie Swathi, also allegedly committed suicide in the same prison by “pulling and biting into a live electric wire”.

The Puzhal prison complex was inaugurated in 2006 by the then Tamil Nadu Chief Minister, M. Karunanidhi, with the promise of making it a model for reform. It has become notorious, however, for being a den of drugs and a place where mobile phones are frequently seized.

The Puzhal prison isn’t alone.

From 1995 to 2014, 999 suicides were reported inside Indian prisons. Tamil Nadu alone has seen 141 of them. The State houses less than 4 per cent of the country’s prisoners, yet it accounts for 14 per cent of suicides inside prisons. With such a poor track record, the State machinery should at least deliberate possible solutions.

Is Tamil Nadu the bad apple or is the entire orchard rotten? Data show that in the last 20 years, three inmates on average have been found dead daily in Indian prisons. In 2014, there were five deaths every day, so 35 deaths in a typical week. Two of these deaths were suicides. In the same period, the death rate inside prisons rose by 42 per cent. Ninety per cent of these deaths were recorded as ‘natural’, but what constitutes ‘natural’ in a custodial set-up is questionable.

Violation of rights

The numbers show that the prison department is ill-equipped to protect the health and safety of inmates. Little public scrutiny in jails provides the possibility of violation of basic rights. It is only when violations result in deaths that questions are raised, and even then only cursorily.

This perfunctory attention to prisons helps overlook the fact that deaths are the consequence of the everyday reality of prison life. Inmates live in despair of little or no contact with the outside world, are denied the basic desires to eat or wear clothes of their choice, to forge relationships. They wait for basic medical needs, their movements are restricted, and they are frustrated as they know nothing about their cases. As they are not taken to court often, they miss the chance of meeting a judge, their lawyers, and families. There is also lack of a mechanism to hear their complaints.

And this is just the tip of the iceberg. As an undercover operation in Uttar Pradesh’s Kasna Jail showed recently, abuse takes place in prisons. Extortions, corruption, and torture are common.

The only way to thwart what goes on in these institutions is to make them accountable. Prison monitors are mandated to regularly visit jails, listen to prisoners’ grievances, identify areas of concern, and seek resolution. These visitors include magistrates and judges, State human rights institutions, and non-official visitors drawn from society.

However, an upcoming Commonwealth Human Rights Initiative study (CHRI), ‘Looking into the haze — a study on prison monitoring in India’, shows that not even 1 per cent of Indian jails are monitored. In Tamil Nadu, according to recent media reports, most prisons await appointment of non-official visitors. As per National Crime Records Bureau (NCRB) figures for 2014, just 500 inspections were made across the 136 jails in Tamil Nadu, perhaps by the official visitors. This means that there were less than four inspections per jail in an entire year.

Surveillance

The Supreme Court last year ordered the Centre and the States to install CCTV cameras in all the prisons in the country. CCTV cameras serve two purposes: they bring on record incidents that could otherwise be suppressed, and play a preventive role in violation of rights, as the fear of facing consequences for the same would increase under vigilance.

However, Ramkumar’s death remains a mystery despite the Puzhal prison installing CCTV cameras. This is because the alleged suicide occurred near a water pot in the dispensary block where no cameras were placed. So, while the court’s order was a step in the right direction, it fell short by not formulating guidelines for implementation.

Suicide is a critical problem in prison complexes — in the last 20 years, the suicide rate (suicides per lakh population) in prisons is recorded at 15.4. A person is 1.5 times more likely to kill himself or herself inside jail than outside it. In Tamil Nadu prisons, the suicide rate is higher than 40.

Providing counselling to inmates is crucial for them to deal with the ordeal they undergo in custody. But are prisons prepared for this? Tamil Nadu prisons have only sanctioned 105 correctional staff. Less than half the positions are filled. Out of the 13 psychologists sanctioned, only eight have been hired. With around 16,000 prisoners, this translates to one psychologist for every 2,000 inmates.

After Ramkumar’s death, the DG (Prisons) announced that a magisterial inquiry will be ordered. But does that mean anything? The National Human Rights Commission (NHRC) has expressed concern in the past about post-mortem reports “appearing to be doctored due to influence”. There is no information in the public domain about the details of these reports, whether the magistrate visited the death scene, what evidence was gathered, the time taken for the inquiry, the outcome, and whether prison officials were charged or found guilty.

Saving lives

The prison department is mandated to report all cases of custodial death to the NHRC within 24 hours of their occurrence. But the prison department data collated by the NCRB and the NHRC data don’t match. Also, almost half of the unnatural deaths in prisons are reported as ‘others’ by the NCRB. It is important that these ‘others’ be demystified.

While the liberty of a person inside custody can be curtailed according to “procedures established by law”, it cannot be stretched to extinguish life itself. The NHRC has repeatedly issued guidelines to prevent and respond to custodial deaths. It is time for the State governments to start taking these guidelines seriously. If the state works to promote communication between the inmate and his family and lawyer, increase conjugal visits, ensure adequate trained prison staff, and open up the prison to civil society, we might be able to save some lives. If not, we know who is responsible for the next suicide inside our jails.

Raja Bagga is Project Officer, Prison Reforms Programme, CHRI.

Keywords: Swathi murder case, P. Ramkumar suicide, Puzhal jail, Prison Reforms Programme

Source: The Hindu, 27-09-2016

Custodial torture: It’s a shame that so much that is shameful thrives

Can one be proud to be an Indian and ashamed to be an Indian?

One cannot be one without the other.

This reflection has been occasioned by two recent court judgments.

The first of these is the extraordinary judgment of Madras high court’s chief Justice Sanjay Kishan Kaul and Justice Pushpa Sathyanarayana in the writ petitions pertaining to the right of free thought and expression. Occasioned by the psychological tormenting of the Tamil novelist Perumal Murugan for his story One Part Woman, the order says “Surprisingly, on the issue of a liberal ethos on the relationship of man and woman, sex and religious mores, the ancient scriptures seemed to be more liberal than at times what appears to be the current norm”. And affirming the right to free speech, it says: “The author…should be able to write and advance the canvas of his writings”. In a final sentence that has an ‘all-time and everywhere’ resonance to it, Justice Kaul and Justice Sathyanarayana observe: “Let the author be resurrected to what he is best at: Write.”The judgment recalls the words of Milton in Areopagitica: “Lords and Commons of England, consider what Nation it is whereof ye are, and whereof ye are the governors: a Nation not slow and dull, but of a quick, ingenious, and piercing spirit, acute to invent, suttle and sinewy to discours, not beneath the reach of any point the highest that human capacity can soar to….Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

The second is the judgment of the Supreme Court of India in which Justice Madan Lokur and Justice Uday Lalit have ruled that the armed forces cannot escape investigation for excesses in the discharge of their duties even in “disturbed areas”. Hearing a PIL demanding an inquiry into 1,528 deaths in counter-insurgency operations and related incidents in Manipur, the court said the provisions of the Armed Forces (Special Powers) Act have to yield to the larger principles of human rights. Responding to the arguments of the government, the judges said: “The submission of the learned attorney general is nothing but a play on words and we reject it and hold that an internal disturbance is not equivalent to or akin to a war-like situation and proceed on the basis that there is no war or war-like situation in Manipur but only an internal disturbance, within the meaning of that expression in the Constitution – nothing more and nothing less.” The 85-page order makes it clear that action against terrorists cannot be indistinguishable with disappearances and extra-judicial killings.The judgment recalls the words of Milton in Areopagitica: “Lords and Commons of England, consider what Nation it is whereof ye are, and whereof ye are the governors: a Nation not slow and dull, but of a quick, ingenious, and piercing spirit, acute to invent, suttle and sinewy to discours, not beneath the reach of any point the highest that human capacity can soar to….Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

It is a matter of pride that our courts can call the shameful to account. It is a shame that so much that is shameful thrives in India.

Our criminal investigative system has some truly remarkable achievements to its credit. The rule of law owes a great deal to our police. Bravehearts among their ranks keep us from personal and collective harm. The martyrdom of Hemant Karkare in Mumbai on November 26, 2008, places him in the world’s annals of duty performed in the face of death. The recent killing of two police officers in Mathura at the hands of a violent cult whose unauthorised headquarters they were sent to break up, is another example of policemen courting death for the security of the State and society. The loss suffered by their bereaved families is no different from that of soldiers killed in war. These instances can and should make us proud of them, honour them.

But India does not permit pride to stay where it is.

We have had earlier this year a masterpiece of a research document placed in our hands by the Centre on the death penalty set up by the National Law University (NLU), Delhi. The product of direct interviews with persons on death row in different states, Death Penalty India Report 2016 gives hard evidence to tell us that India is home to some of the grossest of criminal investigative malpractices. The report tells us: “Of the 270 (Death Row) prisoners who spoke about their experience in police custody, 216 (80%) admitted to have suffered custodial violence”. The report is about convicts on death row but there is no reason to doubt that what is true of them is also true, more or less, of other prisoners as well, many if not most of who will be found later to have been innocent. Custodial torture degrades not just the system within which it operates but all of us. From needles inserted into fingernails, heads crashed against walls/glass, water-boarding, being forced to sit on a slab of ice, have electric current passed through the wet body, we have them all in India, the India that is asking the world to visit India, Incredible India! with its upside down exclamation mark, to Make In India, Trust India, Adore India.

That it is possible in India to investigate shaming truths, as the NLU has done, reassures us. That torture, custodial torture, is rampant in India, shames us.

The government should tell us why India, which signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture) in October 1997, has yet not ratified it. Why has the Prevention of Torture Bill, which will pave the way for ratification, not yet been passed? Is India afraid that the world will castigate it, call it hypocritical? Or is one part of the State unwilling to shake off this ‘secret weapon’ in its investigative armoury?

We, as a people, are not asking these questions. But do we really care about custodial torture? Do we look upon it as a national shame? In truth, we do not. And there lies the bigger shame.

Gopalkrishna Gandhi is distinguished professor of history and politics, Ashoka University . The views expressed by the author are personal.

Source: The Hindu, 4-09-2016

Cybercrime up 2,400 times in 10 yrs

Vishwa Mohan

New Delhi:





41% More Cyber Thugs Held In 2015

With the internet and social media becoming a way of life, cybercrime numbers have steadily climbed over the years. Such crimes went up 20% last year compared to 2014, logging a 2,400% increase over the last decade.The latest National Crime Records Bureau (NCRB) report shows that cybercrime cases rose from 9,622 in 2014 to 11,592 last year, nearly onethird of the crimes committed for financial gain.
The number of people arrested in cybercrime cases rose by over 41% during the same period -from 5,752 in 2014 to 8,121 in 2015.
Besides crimes for financial gain, the motives also included cheating, insulting women, sexual exploitation and personal revenge or settling scores.
The report cited `political motives', which could be related to tarnishing the image of opponents through morphed pictures or fudged data. The report said 44 cybercrimes cases for `political motives' were reported last year.
Data theft, breach of an individual's internet banking or other service platforms through hacking, cyber stalking, digital forgery such as fabrication or destruction of electronic records were some methods used by criminals in the internet space.
An analysis of past NCRB reports revealed that the number of cybercrimes was quite low 10 years ago, with only 453 such cases reported in the country in 2006. Barring 2008 when the number of cases fell compared to 2007, the numbers have consistently risen.
Though the NCRB did not give any reason for the rising figures, they could be attributed to increasing internet penetration in the past few years. Use of internet for various services has led many to use the web for multiple purposes -be it personal and official communication, banking, teaching, e-marketing, digital lockers or social networking.
The latest NCRB report said Uttar Pradesh, Maharashtra, Karnataka, Rajasthan and Telangana reported the highest number of cybercrimes last year. All five states are home to several companies dealing with information technology and related services.
In terms of arrests, Bihar, Andhra Pradesh and Assam made it to the list of top five.Experts said this could be attributed to multiple people's involvement in one case.
Uttar Pradesh recorded the largest number of cybercrime cases largely because of its spread and resultant internet penetration in major cities and in the hinterland as well. The state's figures could also be high due to the IT destination of Noida which has emerged as a hub of cyberattacks in the country .

Source: Times of India, 1-09-2015

Fishermen in troubled waters

India and Pakistan must immediately revive the Joint Judicial Committee on Prisoners.

To be in prison in one’s own country is itself a nerve-wracking ordeal. But imagine how much more agonising it must be to languish in another country’s prison, often endlessly, and for no fault or for minor transgressions, especially if the two countries in question happen to be India and Pakistan?

Every time relations between the two nations nosedive, it automatically affects Indian prisoners in Pakistan, and vice versa. This was most recently typified in the film Sarabjit. Sarabjit Singh, an Indian national convicted by a Pakistani court, died in May 2013 after prison inmates brutally attacked him in Lahore’s Kot Lakhpat Jail. A week later, in what was seen as a tit-for-tat assault of Sarabjit, Sanaullah Ranjay, a Pakistani prisoner, died in a Jammu jail when Indian prisoners attacked him. The stories are similar: if Indian prisoners like Sarabjit, Kirpal Singh, Vaaga Chauhan and Ratan Das have died in Pakistani prisons, Pakistani prisoners like Nawaz Ali and others have died in Indian prisons. What ties their stories together is pain, pathos, and a sense of being victimised.

Jatin Desai

Profile of prisoners 

Whenever a fisherman who has been arrested from the other side of the border dies, it takes at least a month for his body to reach his relatives back home. Fishermen Vaaga Chauhan and Ratan Das, both from Una in Gujarat’s Saurashtra region, were reportedly arrested by Pakistani authorities when their boats strayed into the country’s waters. Though they died in Karachi on December 12, 2015, and February 8, 2016, respectively, their bodies arrived in India months later, only on April 14 this year. Similarly, Nawaz Ali’s body reached Pakistan a month after his death.

These men were not criminals or terrorists; small errors on their part and hostilities between their nations cost them their lives. Yet, not even a fraction of the concern and outpouring of emotion for the deaths of brave jawans is extended to these fishermen; there is no uproar, no debate. Perhaps this has something to do with their low economic status, semi-literacy, and invisibility to the public in both countries.

I have met many Indian fishermen who spent a long time in Karachi Jail. I have also met a few Pakistani fishermen in Rajkot Jail in Gujarat. All their stories are either of miscalculations made while negotiating the sea or errors in direction, both of which have to do with the absence of a clear demarcation of boundaries in the waters.

These prisoners have nothing to do with the policies of their respective governments, but they bear the consequences of these policies or are often held up as “prizes” in a tense geo-political conflict. In Gujarat, where there is pollution near the shores and an overabundance of trawlers, fishermen have no other option but to go farther into the sea to catch fish. This explains why there are more Indian fishermen in Pakistan’s jails than the other way round. Also, while most Indians in Pakistan’s prisons are fishermen, the opposite is not true.

A couple of weeks back, I met some Indian fishermen who had been released from Pakistan’s prisons and repatriated to India in March, in their villages in Gujarat. They recounted similar horror stories: of being denied sufficient food, health services, communication with family members, and delay in consular access. The sad reality is that neither India nor Pakistan treats these prisoners within the norms laid down by international covenants or with any decency.

The need for timely repatriation

And here’s what makes the situation glaringly unfair. India and Pakistan had signed the Agreement on Consular Access in 2008, according to which consular access must be provided within 90 days of arrest of either country’s prisoners. This period is given to help verify the person’s nationality and enable necessary steps to repatriate the person to his or her country of origin.

There have been instances where prisoners could not be released and repatriated because their nationalities were not verified on time. Even today, 18 Indian fishermen remain in Pakistan’s prison after completing their sentences more than a year ago.

In January 2008, India and Pakistan set up the India-Pakistan Joint Judicial Committee on Prisoners, which consisted of retired judges from both countries. The committee worked hard to seek early repatriation of prisoners who have completed their sentences in the other country’s jail and also ensure that they are treated humanely. It met every six months and visited prisoners in both countries. It discussed issues such as health and food of the prisoners and the need to evolve a mechanism for humanitarian treatment of women, the mentally challenged, juvenile prisoners, and so on.

For prisoners lodged in jails in the neighbouring country, meeting judges from the higher judiciary meant a lot. It gave them hope and confidence of returning to their homes. They brought to the notice of the committee members the hardships they faced in these prisons. This intervention helped the prisoners receive better medical treatment. It also allowed family members to find them through the committee members. Both governments applauded the role played by the committee.

Unfortunately, this committee has not met since the Narendra Modi government came to power. In April, External Affairs Minister Sushma Swaraj, while assuring the family members of Kirpal Singh that his remains would be brought back soon, said the government would try to revive the judicial committee. Union Minister V.K. Singh told the Rajya Sabha later, much to everyone’s surprise, that the committee had been meeting. This is not true.

India and Pakistan must immediately revive the committee to ensure that the prisoners are ensured their rights and are repatriated at the earliest. It is time that these prisoners, who are victims twice — first of poverty and circumstance, and then of a geo-political conflict — are not held hostage. The least India and Pakistan can do is evolve a policy of no arrest on straying fishermen.

Jatin Desai is a journalist and General Secretary of Pakistan-India Peoples’ Forum for Peace and Democracy.

Keywords: India, Pakistan, Joint Judicial Committee on Prisoners

Source: The Hindu, 23-05-2016