Saturday, July 01, 2017
PIL - Compensate Prisoners
S.O.S e - Voice For Justice - e-news weekly
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Editor: Nagaraja.M.R.. Vol.13..Issue.27........08 / 07 / 2017
PIL – Compensate Prisoners illegally detained
An Appeal to Honourable Supreme Court of India , Karnataka High Court & National Human Rights Commission
IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION
CRIMINAL WRIT PETITION NO. OF 2017
IN THE MATTER OF
NAGARAJA . M.R
editor SOS e Clarion of Dalit & SOS e Voice for Justice
# LIG 2 , No 761 ,, HUDCO First Stage , Laxmikantanagar ,
Hebbal , Mysore – 570017 , Karnataka State
Honourable Chief Secretary , Government of Karnataka & Others
PETITION UNDER ARTICLE 12 to ARTICLE 35 & ARTICLE 51A OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLE 32 & ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Hon'ble The Chief Justice of India and His Lordship's Companion
Justices of the Supreme Court of India. The Humble petition of the
Petitioner above named.
MOST RESPECTFULLY SHOWETH :
1. Facts of the case:
"Power will go to the hands of rascals, , rogues and freebooters. All Indian leaders will be of low calibre and men of straw. They will have sweet tongues and silly hearts. They will fight among themselves for
power and will be lost in political squabbles . A day would come when even air & water will be taxed." Sir Winston made this statement in the House of Commons just before the independence of India & Pakistan. Sadly , the forewarning of Late Winston Churchill has been proved right by some of our criminal , corrupt public servants.
Majority of prisoners in Indian jails belong to poor , minority , oppressed sections of society and 2/3rd of prison population comprises of undertrials. Are not there any criminals among rich , affluent and forward castes , majority community ? It proves the bias , prejudice of police , establishment. There are good , honest people as well as criminals in all castes , religions and all walks of life. There are deadly anti nationals , criminals among the police force , judiciary , parliament , but due to their caste , financial clout escaping from conviction , legal prosecution.
As per law , all citizens of india are equal. However under trials ( who are innocents till proven guilty ) are discriminated in Indian jails. Ordinary citizens / accused are crammed in rooms resembling pig stays . whereas accused from rich / influential back grounds are given separate rooms with cot , bed , television , news paper , etc.
As per law , all citizens of india are equal. A criminal is a criminal . However Indian prison authorities discriminates here also. Former ministers who looted crores of rupees from public exchequer , corporate persons industrialists who have cheated public , public banks of crores of rupees are given royal treatment , get best food , health care where as an ordinary pick pocket , house burglar are treated like slaves , pigs don’t get proper food , health care.
India Jail Manual procedures differentiate prisoners based on their caste , social background , while allotting prison cells , food , visitor facility , parole , mandatory work , recreation facilities - which in itself is illegal.
Apart from this , corruption in Indian jails is rampant. Prisoners with money , influence get everything within jail itself , mobile phone , drugs , fire arms , etc. some mafia dons run their empire from prison itself.
Poor prisoners are tortured by police , jail personnel and criminals within jails. Indian Jails are reform centre , where everyone should treated equally in all respects. By practicing discrimination jail authorities are promoting small time criminals to commit bigger crimes to get royal treatment in society as well as in jail.
Few prisoners convicted by lower court due to bias of police , prosecutor & lower court judges are acquitted by higher courts. However due to this wrong conviction of innocents , the innocent person is deprived of his life & liberty for years , decades. But the culprits Investigating officer , police , public prosecutor & judge are not prosecuted for their crimes. In this manner even innocents are killed in fake encounters or by death sentence.
It is the duty of the judge who awards jail sentence to a convict or an accused , to ensure his safety , health care and to see that prisoner gets right punishment as per law. Here our judges have failed. SHAME SHAME to police & judges.
If the Supreme Court of India , NHRC delays in acting on this PIL petition resulting in prolonged imprisonment of undertrials , convicts or Innocents , Supreme Court of India / NHRC judges also jointly become responsible for the crimes against those illegally imprisoned and SCI judges are also equally responsible to pay compensation from their personal pockets.
2. Question(s) of Law:
Are not all prisoners equal ? is not theft of ten rupees or theft of thousand crores of rupees , both crimes ? Are not both criminals thieves ? then why differentiation ? Is it not the constitutional duty of a judge who has awarded jail sentence to an accused / a convict , to ensure safety , health care of the said prosiner ? is it not the duty of the judge to monitor whether the convict is getting right punishment as per law nothing less nothing more ?
Requests for equitable justice , equal treatment of prisoners. Requests of stopping torture of poor prisoners. Prosecution of corrupt judges , police & jail personnel.
Prosecute Sanjay Dutt under TADA
Revoke Bail of Salman Khan
Aeroplane Rides for Corrupt Police Corrupt Judges
Traitors in Judiciary & Police
Crimes by Khaki
FIRST Answer Judges Police
Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants in the cases to perform their duties.
In the above premises, it is prayed that this Hon'ble Court may be pleased:
a . Hereby , I do request the honorable supreme court of India to consider this as a PIL for : “writ of Mandamus” and to issue instructions to the concerned public servants , Government of Karnataka authorities in the case to perform their duties.
b. Hereby , I do request the honorable supreme court of India to immediately annul the Jail Manuals of all state governments of india , which are discriminatory.
c. Hereby , I do request the honorable supreme court of India to constitute an expert committee to frame a “ Model Jail Manual “ applicable to all Indian states , union territories.
d. Hereby , I do request the honorable supreme court of India to initiate legal prosecution of jail personnel , police & judges who failed in their duties to ensure safety of prisoners , resulting in torture of prisoners and for prolonged imprisonment or illegal imprisonment of innocents.
e. Hereby , I do request the honorable supreme court of India to order all state governments to ensure food , health care , recreational facilities , parole on an equal footing to all prisoners without discrimination.
f. Hereby , I do request the honorable supreme court of India to order respective state governments pay compensation to prisoners for suffering discrimination , torture.
g. Hereby , I do request the honorable supreme court of India to order respective state governments pay compensation to prisoners who spent years behind bars , finally acquitted by courts and in the case of prisoners who spent more years in jail than the quantum of punishment codified in IPC due to prolonged case trials. In both such cases afterwards state government must recover money from respective presiding judges , investigation officer & government legal prosecutor.
h . to pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND, EVER PRAY.
Dated : 01st July 2017 …………………. FILED BY: NAGARAJA.M.R.
Place : Mysuru , India…………………….PETITIONER-IN-PERSON
SC dismisses state govt's plea against acquittal of man who "mistakenly" served seven years in prison for rape
In a setback to the Maharashtra government, the Supreme Court has dismissed a petition filed by it seeking permission to file an appeal challenging the acquittal of a Ghatkopar resident booked for rape in a case of "mistaken identity". Gopal Shetye had served seven years in prison for the rape case and has now filed a case in the Bombay high court seeking Rs 200 crore as compensation for the "wrongful prosecution".
"There is a delay of 357 days in filing the special leave petition, which has not been satisfactorily explained (by the state)," said a division bench of Justice A K Sikri and Justice N V Ramana. "Also the fact that Shetye, though acquitted, has served the complete sentence awarded by the Trial court, we are not inclined to entertain this special leave petition," the apex court bench added while dismissing the state's plea as barred by limitation.
The state had filed the appeal after Shetye filed his petition seeking compensation.
Shetye, who used to work in a hotel in Ghatkopar, was arrested on July 29, 2009. He later found out that he was charged with raping a 28-year-old woman from Aurangabad sleeping on a railway bridge at Ghatkopar station 10 days prior to his arrest.In 2010, a sessions court convicted him and sentenced him to seven years jail. By the time, the HC decided his appeal, he had served his jail term. In 2015, HC found no evidence to link Shetye to the murder.
The victim had said that the man who raped her was "Gopi" and the court said that the police themselves had floated the theory that "Gopi" was Gopal Shetye.
The HC had also picked holes in the police case—Shetye was shown to the victim in the police station before the test identification parade and the investigation agency had not produced the CCTV footage."This was a case where the identity of Shetye as the culprit had not been satisfactorily established," the HC had said. "The investigation had not been satisfactory. No serious efforts were taken to find out the truth or to collect evidence."
False Terror Cases: Can Compensation Assuage a Victim’s Trauma?
By Alok Prasanna Kumar
With a trial court acquitting two out of the three accused in the Delhi blast case of 2005, The Quint revisits the debate on whether the state is liable for compensation for falsely implicating the innocent in terror-related cases. This article was first published on 31 January 2017.
Another so-called “terror case” prosecution has fallen apart in the light of judicial scrutiny. Eleven years after Delhi’s notorious “Special Cell” detained Irshad Ali and Maurif Qamar for allegedly being members of the Al-Badr Brigade, a trial court in Delhi acquitted them of all charges pointing out that they were in fact police informers who had been falsely framed.
This is in addition to the debacle it suffered in court over the “Malda fake currency” case, where the Special Cell claimed to have caught – in filmy-style – men attempting to smuggle fake currency into Delhi. Once again the trial court found out that there was simply no basis for the Special Cell’s case.
Adambhai Ajmeri was found guilty of having been part of the terrorist attack on the Akshardham Temple in Ahmedabad, his conviction was upheld by the Gujarat High Court, but was entirely acquitted by the Supreme Court that found that the whole case had been concocted against him and five others. This was after 11 years in prison and eight years on death row.
Victimisation of Minorities
I could go on, but the stories are depressingly identical. Innocent men – mostly Muslims – are picked up in the name of “anti-terror operations”, detained for years, while evidence is cooked up and false charges slapped on them. Usually these cases fall apart on the most basic judicial scrutiny. Sometimes, as in Adambhai’s case, it requires the Supreme Court’s intervention before justice is done.
All of these cases are indicative of a deep-rooted prejudice and dysfunction in our police forces.
Delhi Police’s “Special Cell” may be the most notorious, but by no means exceptional in its persecution of innocents. The Jamia Teachers’ Solidarity Association has documented 16 such cases, including Irshad and Qamar’s cases. Such abuse of the criminal justice process and the victimisation of Muslims have been well-documented and widespread.
It’s not just Muslims in the context of terror cases. People from socially and economically backward classes are also severely discriminated against by police when it comes to even routine cases.
Is the State Responsible for False Charges?
• The root cause behind false charges in terror-related cases is the lack of reforms in the police, often seen as an instrument of state control.
• The State owes responsibility in false terror cases since the law establishes that onus of malfeasance of public servants lies with the government.
• What needs to be worked out is a mechanism of providing compensation to the victims, by the State and its intricate bureaucracy.
• Compensation should be provided only in cases where the accused has been in custody for more than 60-90 days and the case is a fabricated one.
• There should be a punitive element as well, making the errant police officers liable to bear a certain amount of the compensation.
Discrimination Against Tribals, Dalits
The caste-wise break-up of under-trials across the country, and also those who have been sentenced to death, shows a distinct bias towards the Dalits and adivasis. The recent “Swathi murder case” is another example of this discrimination. After detaining a Dalit man, who was accused of being the murderer on the most flimsy evidence, police were unable to file a chargesheet even six months after having allegedly “cracked” the case.
His death in police custody – in poorly explained circumstances – only makes the initial arrest and investigation more suspicious. Many adivasis still languish in jail as the Chhattisgarh government detains them under the notorious Special Public Security Act, 2005, slapping multiple false cases on them, denying even basic legal protection to the most vulnerable sections of the society.
The basic, underlying cause for this is the fact that the colonial police force inherited by the modern Indian state has not been reformed at all. It is still seen as an instrument of state control of the subject population, both by the rulers and the ruled. The police forces are ill-equipped and ill-trained to be modern police forces fit for a constitutional democracy, and are in no way representative enough to inspire confidence in the weaker sections of the society.
Need for Police and Judicial Reforms
Reforming the police forces will take a generation at least – that is, if the state governments cease resistance to reform and seriously start implementing even the most basic recommendations made by the Supreme Court. There is a need for a much-wider reform, including reconceptualisation of what a police force in India is supposed to do, who it is supposed to protect and from whom.
That said, there are some things that can be done instantly to remedy the injustices suffered by those who have been at the receiving end of the police malfeasance in criminal cases.
One argument that is made is the granting of compensation to those who have been victimised by false terror or other criminal cases. However, this didn’t find favour with the Supreme Court recently when the victims of such false accusations approached it seeking compensation.
Responsibility of the State
There is no denying though that the need is pressing and the State cannot escape responsibility. It is well-established in law that the state is responsible for the malfeasance of its servants in the course of their official duties. This principle is applicable even if the government servant exceeds her brief, but so long as the act was done while she was “in uniform” (so to speak), the Government can be held liable. This is a claim that can be made not only in the context of the law of torts, but also in the realm of constitutional law.
For instance, the Union Government on the orders of the Calcutta High Court and the Supreme Court, had to pay compensation to a Bangladeshi woman who was raped by the Indian Railways employees on railway premises. Custodial deaths have been held to entitle the deceased’s family to compensation from the government responsible. Most recently, we have seen the National Human Rights Commission direct the Chhattisgarh government to pay compensation to the adivasi women who were raped by the security forces.
But, false terror and other criminal cases are not one-off failures that require one-off remedies from the court. The victims of the criminal justice system, who have suffered economically, emotionally, physically and psychologically for years on end can’t be expected to gird their loins for a long and bruising battle in courts. The problem is systemic and so should be the solution.
Compensation for the Victims
Equally, it would also be utopian to expect the State to set up a sufficiently-responsive and active mechanism to provide compensation for such victims of the criminal justice system. Given that most of the victims are dis-empowered, to expect them to negotiate the intricacies of bureaucracy and other state agencies on a matter where the State would already be disinclined to believe them would be an unfair burden.
In such a situation, what reasonable solution can we offer?
One possible answer is to empower the court that acquits or discharges unfairly charged persons to award compensation to those whose lives have been destroyed by the false case. Since this court or more specifically, this judge, is the one who has just examined all the evidence in a case and has taken a call on the guilt or otherwise of the accused, where the judge finds that the case has been falsely foisted on a person by the police, she should be empowered to award compensation to the person she has acquitted or discharged.
To make this mechanism more effective, and targeted, compensation should be awarded not in all acquittals, but only when two criteria should be met: the accused should have been in custody for more than 90 days or 60 days statutory limit placed in the Code of Criminal Procedure, 1974 and that the case should have been patently false. The latter would be fulfilled if the police did not follow the statutory procedures in collecting evidence, or made false statements in the court or elsewhere, or are shown to have subjected the accused to torture or other degrading treatment to obtain a confession. This does not preclude separate criminal proceedings against the concerned police officers for perjury, assault and other crimes; it will ensure that at least the unfairly accused gets some relief.
Quantum of Compensation
The concerned court should be empowered to take any further material that the victim can place before deciding the quantum of compensation. The compensation should not only address the economic aspect, loss of income, and expenditure on litigation, but also address the emotional and psychological trauma that such false cases cause. There should, in addition, be a punitive element to this compensation that should, ideally, be recoverable from the concerned police officers.
The concept of a criminal court awarding compensation is not unknown in the Indian law. Section 357 of the Code of Criminal Procedure, 1973, allows the court to direct the payment of compensation to the victim of a crime from the fine payable by a convicted person.
State Governments Should Take the Lead
Likewise, if an accused has been arrested on the basis of a complaint given by a person, and the court finds that no case was made out against accused, it can award compensation to such accused in accordance with Section 250 of the Code of Criminal Procedure. It is also not entirely unfamiliar to the system – in most places the same judge exercises both civil and criminal jurisdictions in a given district. To that extent, it is a reform that is rather easily implementable.
When compared with large-scale police reform, this is relatively low hanging fruit for the state governments in India to undertake. That our criminal justice is broken and dysfunctional cannot be disputed. Rectifying it should not only focus on addressing the larger issues, but also address the needs of the victims of this system.
Prisoners of the system
By Sonam Saigal
Terror suspects find themselves jailed for long periods without trial, and when proven innocent, find that the country does not make any kind of reparation
On January 15, 1994, Mohammad Nisarudin was at home in Gulbarga, Karnataka, preparing for his Diploma in Pharmacy final exams, 15 days away. After he qualified, the 19-year-old planned to get a job in one of the Gulf countries, a dream he and his best friend Sajid (name changed) had talked about since they were seven. But that day, the police knocked at the door of his parents’ home and took him away in handcuffs. Initially, the police booked him for a bomb blast that had taken place in October 1993 in a Muslim educational institute in Hyderabad, then he was booked in a few unsolved bomb blasts that had taken place in August and September in 1993, then he was booked under the anti-terror law Terrorist and Disruptive Activities (Prevention) Act (TADA) — which was repealed two years later, in 1996 — for planting the bombs that took two lives and injured 22 in five trains on December 5 and 6 1993 in Mumbai, and after a ‘confession,’ put into Ajmer Central Jail. On February 28, 2005 a TADA court at Ajmer convicted him and gave him a life sentence.
Mr. Nisarudin stayed there for 23 years labelled a terror-accused. “Main yaad bhi nahin karna chahta unn dino ko; mujhe darkinar kar diya tha 73 days ke liye, chaar din tak khade rakha bediyon se baandh kar. (I don’t even want to recount those days, I was isolated for 73 days in the lock up, was made to stand and chained for four days]. On May 11 2016, the Supreme Court ruled that his confession, which was taken in police custody, was totally inadmissible, acquitted him of all charges and set aside his life sentence.
When The Hindu spoke to Mr. Nisarudin at the home of his older brother Zahirudin, in Gulbarga, Karnataka, his voice quavered with emotion. “23 years of my life are gone to prove my innocence. Sab mujhse aage badh gaye, aur main sabse peeche reh gaya [Everyone has gone ahead in life and I am left far behind]. Most of my friends have gone abroad and those here don’t relate to me anymore. They could not even recognise me, how would they? There is a difference in the 19-year-old Nisarudin they last saw and today’s 42-year-old. An entire generation has gone by.” When this reporter asked him whether he had sought compensation of any kind from the State, his sorrow turned to anger: “How can I be compensated for all the years lost? Can I ever be compensated in any manner?”
Unable to carry on, he put his brother on the line. Mr. Zahirudin says that the family has used up all their savings in the long legal fight to bring Mr. Nisarudin home and were living day to day at the moment. “We do not have any resources to fight another legal battle.” Mr. Zahirudin says. “It takes a lot of money to do so and we lost all that we had to bring my brother home. Even if I seek action against those who falsely implicated him, half of them are dead. What is the way forward then?”
The focus now, Mr. Zahirudin says, is to help his brother put his life together again. “He is also entitled to be happy, just like you and me. I want to see him settle down. But people still don’t want to get their daughter or sister married in our family. Not only my brother, my entire family is a victim of the judiciary.” He says that though he tries to explain that his brother was falsely implicated and has been proved innocent, people fear that because he was accused of a terror crime, he will probably be picked up by the police for any blast that takes place in the country.
What rankles most is that though his brother has spent more than half his life in jail, the system has not expressed regret: “The least the judges could have done was expressed some sympathy or remorse.” In his opinion, the system has much to answer for; he says that when TADA was repealed his brother should have been released, but because presiding judges got transferred, public prosecutors were absent or repeatedly sought adjournments, it cost Nisaruddin 23 years in jail.
Victims of the system
While the length of Mr. Nisarudin’s incarceration is an extreme, his isn’t an isolated case.
Take Abdul Wahid Din Mohammad Shaikh, 39 now. He was charged of complicity in the Mumbai train blasts of November 7, 2006 and spent nine years in Arthur Road Jail in Mumbai before being acquitted of all charges — the only one of those accused to be acquitted — and released. Mr. Shaikh told The Hindu that all the accused were made to sign many documents, some of which were blank. “Had I known the consequences I would have never done so.” While in jail, he enrolled in a law course, and finished a course in journalism. If he knew something of the law at the time he was arrested, he said, “I would have known what a confession is, what the consequences of signing on any written or blank pages are, what is the rights of an accused are, what the rights of those arrested are, what the duties of an investigating officer and agency are.”
While he was in prison, his wife, who had never stepped out of the house, had to go out to work to make ends meet. Now that he is free and exonerated, his goal is to secure the release of the others who were, in his opinion, wrongful implicated and convicted in the same case. “Once those trapped in this case are out, I will strive to release those languishing in jail for being falsely implicated.”
And there is Adnan Mulla, 40, who was sentenced to 10 years for the Mulund blasts of March 1, 2003. Initially he was illegally detained in 2003 and not released because the police wanted to make him a witness. Then he was made an accused after he refused to give a statement against his brother-in-law of Saquib Nachan (former general secretary of the now-banned Students Islamic Movement of India, SIMI). “I spent six years and one month in jail,” he says. Throughout his incarceration, he was kept in the anda cell, an egg-shaped high security block. “I was going to get married the same month I was picked up,” he says. “My fiancée waited for seven years for me to be released. Only I know how much she and both our families suffered. How can the loss of time be compensated by any officer or government?”
A system in need of reform
In 1765, in Commentaries on the Laws of England, jurist Sir William Blackstone wrote, “It is better that ten guilty persons escape than that one innocent suffer.” While India borrowed much of the UK’s legal system, the spirit of the ‘Blackstone Formulation’ (as it has come to be known) does not seem to be followed. (See box.)
There are no figures for the number of people released for lack of evidence after long spells in prison. Even more disquieting is that India does not have any compensation for people who have lost years of their lives to the justice system.
“Under normal circumstances we want to book the real culprit and have no motive to trap someone in a case,” says Prakash Singh, a retired Director General of Police. “We want to do a fair investigation, but the instruments of investigation are blunted and rusted as the police apparatus is in bad shape. It is possible that police officers are susceptible to bias and pressures from all areas and if politicians decide, don’t catch people from my community but from the other one, then there is selective prosecution.”
“When there is a terror case, you should have an open mind and take into consideration all aspects,” Mr. Singh says. “It is unfortunate that 90% of the time members of a certain community are involved. When one is investigating, I am not denying there may be some prejudice as there are pressures. Sometimes there are mistakes, and sometimes just because someone has a bad character and is in the bad books, an officer succumbs to the temptation [of implicating him]. These things do happen in real practice; I am not denying it.”
Although the Supreme Court has granted compensation in some cases in the past, it has not laid down any guidelines on how compensation can be calculated. One possible difficulty: terror cases are very different from, say, a motor vehicles case, which can have a formula.
Advocate Indira Jaisingh, former Additional Solicitor-General of India says, “The first step for the State would be to just acknowledge the wrong-doing. Then reparation. This will also act as a deterrent, as the officers need to be more careful in future. The demand for compensation certainly raises an issue that the Indian legal system has to learn to deal with, whether by legislation or in courts.”
Right to compensation
“The right to compensation is a human right,” says advocate and human rights activist Vrinda Grover, “and it is the responsibility of the State in falsely implicated cases because people are picked up for their religious affiliation or denomination and the police, who is an agent of the State, know that the person has nothing to do with the case but wrongly implicated the person.”
Courts have the power to compensate, says P.D. Kode, a retired judge of the Bombay High Court, “It depends upon the judge; once the trial is over and he has ascertained the evidence and if a person is prosecuted maliciously, the victim can file a suit for damages.” He says that high courts have awarded exemplary compensation in many cases, for example in ‘encounter’ cases. “They have to show that witnesses were liars. If such things come on record, the court has the power to order compensation. If courts come to a conclusion that the accused was framed, courts have wide powers to do justice to the accused.”
The Innocence Network (IN) is an affiliation of organisations that provides free legal and investigative services to individuals seeking to prove their innocence of crimes, and supporting them after they are freed. It is also working to eliminate the causes of wrongful convictions. IN suggests that the government should grant compensation to the those exonerated, for the loss and harm caused to them and for violating their rights under Article 21 (Right to Life) of the Constitution of India. It says compensation should be calculated on case-to-case basis, factoring in the length of incarceration, loss of income, loss of opportunities (of education, possibilities of livelihood, skills), and the amount spent on legal fees, as well as more intangible harm like the loss of family life, stigmatisation, psychological and emotional harm caused to the accused and their families. They also recommend that the amount may be recovered from the officers responsible for the wrongful arrests and prosecution.
Ms. Grover agrees that compensation must be directly taken from officers responsible — so a clear signal is sent that these acts won’t be condoned — but says that an arithmetic calculation could not be done. “But there needs to be a very high compensation, something to the tune of ₹10 lakh is a small minimum.”
Justice A P Shah, former Chairman of the Law Commission and a member of the jury of the Innocence Network, says, “Terror cases are very different. With the stigma of being associated with terror cases, families are huge sufferers. Ideally we should have legislation but even in the absence of that courts have awarded compensation in several cases. The courts have even booked erring officers if evidence is fabricated, officers are booked for perjury, contempt of court and other offences under the Indian Penal Code.” He says that since the Prevention of Torture Bill, 2010, has not been introduced in Parliament — it was sent back by the Select Committee four years ago — the only way to fight is in the court of law.
Abandoned by all
“Ours is a befitting case for compensation,” says Mr. Zahirudin. “But there need to be categories for those acquitted: benefit of doubt, insufficient evidence, falsely implicated. The third category needs to be chalked out differently. The courts need to look into reasons of why this happens and how and why someone is implicated. Why is only a certain section of the society targeted? Pick up any blasts case whether it is Ajmer or Malegaon…”
Mr. Nisarudin interrupts, not quite calm, but less emotional now: “I want to start a business of my own. I always wanted to open a hardware shop with my brother, but we have no money to do so. Will people come forward and help me financially in any manner? If they do it will go a long way in rehabilitating me. I have very little hope from the government.”
The story has a small silver lining. The Hindu first spoke to the brothers in December 2016. A few weeks later, the family found a bride for Mr. Nisarudin, “after great difficulty,” his brother says. He was married on February 10.
How the world makes reparation
Article 14 (6) of International Covenant on Civil and Political Rights: When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
• United Kingdom: The Home Secretary, under specified conditions and upon receipt of applications, is obligated to pay compensation for wrongful conviction or incarceration.
• France: Code de Procedure Penale follows International Covenant on Civil and Political Rights.
• Germany: An Act of Parliament (the Law on Compensation for Criminal Prosecution Proceedings 1971) specifies that whoever has suffered damage as a result of a criminal conviction which is later quashed or lessened the applicant shall be compensated by the State.
• Australia: In 2004, the Australian Capital Territory incorporated a slightly reworded version of Article 14 (6) within ACT legislation. As per the Human Rights Act 2004, an individual who is wrongfully convicted of a criminal offence may seek compensation.
• New Zealand: A guided discretionary system of compensation under the Compensation and Ex Gratia Payments for Persons Wrongly Convicted and Imprisoned in Criminal Cases.
Born to the wrong community
According to the National Crime Records Bureau’s 2015 statistics, out of 185,182 prisoners in Central Jails, 94,675 (51.1%) are ‘undertrials’ (the term for people who are suspected of a crime, arrested, incarcerated but not yet tried in court) and in district jails, out of 180,893 prisoners, 143,495 (79.3%) are undertrials.
NCRB numbers say that over 55% of undertrials across the country are either Muslims, Dalits or tribals. Scheduled Castes are 16.6% of India’s population, and Scheduled Tribes are 8.6%. Muslims are roughly 18% of India’s population, but make up 15.8% of the country’s convicts and 20.9% of its undertrials.
The creaking legal system means that long periods can pass before a case comes to trial: in 2013, 62% of total inmates were undertrials who had been in jail for more than three months; on 2014, that figure was 65%.
A study by the Quill Foundation’s Centre for Research and Advocacy on terror prosecution in Maharashtra since 1993 found that an overwhelming number of the more than 460 accused of terrorism in Maharashtra have been declared innocent after spending an average of three to six years in prison. More than half of the accused in the state were doctors, engineers, and educated professionals at the beginning of their careers. Almost all of who had been released after being found innocent had, after their release, been forced to pick up traditional occupations or small scale businesses, or remain unemployed. The study found that both the judicial process and the conviction rate in terror-related cases has been very low: only 42 of 93 cases filed since 2001 against SIMI (with more than 200 accused), have been heard and concluded. Of these 42, only three saw convictions (with sentences of two years each) and 39 have resulted in acquittals.
COMPENSATE ACQUITTED INNOCENTS - JUSTICE A P SHAH
One of the biggest pitfalls of arresting a person on malicious and wrongful intent in terror cases is that while innocents get behind the bars, the real culprits go scot-free which can be very dangerous for the society, observed Justice AP Shah, former Chief Justice of Delhi High Court, while releasing the first Peoples’ Tribunal report on acquitted innocents.
“We need to improve the efficiency of our investigating agencies to ensure that such pitfalls that have ruined and are still ruining hundreds of lives are removed. The trial in such cases takes seven to eight years or more to complete, and by the time the accused is released, his or her life is in a shambles,” said Justice Shah, citing the case of Nisaruddin, who was acquitted by the Supreme Court in 2016 after spending 23 years in prison.
The tribunal, first of its kind, heard depositions from nine acquitted innocents over a period of two months who were picked up by the police in terror cases but later exonerated by the courts for want of evidence but in the process had to suffer the humiliation and social stigma of being a terror accused.
One of the acquitted victims who spent 14 years in jail, Mohammed Aamir Khan, termed the report as a milestone but found it lacking in spelling out what could be done to save the terror accused within the four walls of prison.
“I was acquitted after 14 years. Our jails are no better than Abu Ghraib where accused like me go through the worst kind of torture and are always at the mercy of police and other convicts. Many get killed like what happened in Bhopal jailbreak case,” said Aamir.
Giving its recommendations to save, compensate and rehabilitate exonerated accused of terror cases, the tribunal observed that the government should grant compensation to the exonerees for violating their right to life and liberty and the torture they underwent under Article 21 of the Constitution.
“It is shameful that India does not have any such provision,” said Justice Shah, adding that the cost may be recovered from the officers responsible for the wrongful arrests and prosecution.
The tribunal recommends greater accountability and transparency of investigating agency for which they should be subjected to initiation of departmental enquiry against the officers concerned and the erring officers must be suspended with immediate effect pending enquiry. “If found that the criminal prosecution against the acquitted persons was malafide and amounts to offences under IPC Sections 194, 196 and 211, the officers named by the exonerees should be prosecuted,” the report said.
The report recommended enactment of law to compensate for miscarriage of justice, pass the prevention of torture bill that is pending in the parliament for four years, shifting the burden of proof in offenses related to custodial violence and torture by bringing amendment in section 114B (1) of the Indian Evidence Act as proposed by the Tenth Law Commission.
The tribunal explicitly recommended repealing Section 18 of MCOCA thus calling for an end to the admissibility of confessions as evidence and bringing all undergoing trials in repealed and lapsed TADA and POTA under ordinary law.
Shoeb Jagirdar — Mecca Masjid Blast case
Shoeb Jagirdar is a resident from Jalna, Maharashtra. He was first accused in the Mecca Masjid blast case. After his bail was furnished in this case he was charged in the Gokul Chat blast case. The charges against him in the Mecca Masjid blast case was of smuggling RDX and of fake passport acquisition. In the Gokul Chat case he was charged against Sec 107 of the IPC. He was acquitted after spending 7 years as an undertrial.
Mohammad Aamir Khan
Mohammad Aamir Khan is a residence of Delhi. All the blast between the years of 1996-97 that took place in Delhi was charged against him. They were a total of 19 cases against him under charges of sec 121, 122 302 and 307 IPC and sec 3 and 4 of Explosive Act. He spent 14 years in the prison.
Dr. Yunus — Jaipur SIMI case
Dr Yunus and 10 others were arrested for the Jaipur SIMI case. They were accused of taking forward the activities of the banned organization SIMI. Dr Yunus was brutally tortured in prison where he spent a total of 3years. The baery of charges against Dr Yunus had to do with speech and association- talking against national unity , integrity and secularism , of involving Muslim youth in anti- national activities, taking forward the activities of the banned organization SIMI and sympathizing with those carrying on similar activities, and not violence. He was found innocent on all counts.
Abdul Azeem — Aurangabad Arm Haul Case
Abdul Azeem is a resident of Beed, Maharashtra. He was alleged to be the driver of the terrorists of the Aurangabad Arms Haul case. He was acquied after spending 10 years and 3 months in prison. The charges against him included Sections 10(a), 13, 16, 18, 20, 23, 38, 39 of the Unlawful Activities (Prevention) Act, and Sections 3(2), 3(1)(ii) & 3(4) of the Maharashtra Control of Organized Crime Act, 1999.
Maulana Salees — SIMI case
He spent about 2.5 years in jail and still some of the charges continue to be against him. He was alleged to be a SIMI member at the age of fifty. Later 4 more charges were put against him. He was also held responsible for the Kanpur blast case. However, he was found innocent on all counts.
He was accused of waging war against the nation (sedition), rioting, of aempt to murder under Indian Penal Code (IPC) and some other sections of national security act (NSA). He was also accused of being a Hizbul Mujahideen operative. Nothing though could be proved in the court, and he was honorably acquied. The prosecution appealed against Wasif’s acquittal in the High Court, but its appeal was dismissed by the court at the primary stage itself.
Nisar and Zaheer Ahmed — 1996 Railway Blast case
Nisar Ahmed was acquied after 23 long years of jail. He along with his brother Mohammad Zaheer- who spent 14 years in prison- was convicted for the railway blast cases in 1996. The charges against them were of under various sections of TADA, IPC, Explosive Substances Act, Arms Act and Railways Act for planting bombs in five trains.
Wahid sheikh — 7/11 Train Blast case
Wahid Sheikh was charged for 7/11 train blast case. The charged included 3 (1) (2) (3) (4) (5) of MCOC Act 1999 r/w Sacs 10, 13, 16, 17, 18, 19, 20, and 40 of UAPA 1967 r/w Sacs. 302, 307, 326, 325, 324, 427, 436, 121-A, 122, 123, 124-A, 201, 212, 120-B. Wahid Sheikh was acquitted of all charges after spending more than 10 years in prison. A government school teacher before his arrest, he has fought an uphill battle to get his job back. However, he is yet to receive his salary as well as his arrears for the last 10 years which he spent incarcerated as an undertrial.
Iftikhar Gilani — Official Secrets Act
He was charged for violating the Official Secrets Act. He was accused of possessing classified documents that violated the provisions of the statute. The evidences against him included the possession of a public document released in 1995 by Pakistan's Foreign Ministry that includes information about alleged human rights abuses committed by Indian troops in Kashmir. The charge was found fake and the evidence planted. He spent about 7 months in the jail without any bail.
Wrongful Execution DEATH PENALTY
Wrongful execution is a miscarriage of justice occurring when an innocent person is put to death by capital punishment. Cases of wrongful execution are cited as an argument by opponents of capital punishment, while proponents suggest that the argument of innocence concerns the credibility of the justice system as a whole and does not solely undermine the use of death penalty.
A number of people are claimed to have been innocent victims of the death penalty. Newly available DNA evidence has allowed the exoneration and release of more than 20 death rowinmates since 1992 in the United States, but DNA evidence is available in only a fraction of capital cases. Others have been released on the basis of weak cases against them, sometimes involving prosecutorial misconduct; resulting in acquittal at retrial, charges dropped, or innocence-based pardons. The Death Penalty Information Center (U.S.) has published a list of 10 inmates "executed but possibly innocent". At least 39 executions are claimed to have been carried out in the U.S. in the face of evidence of innocence or serious doubt about guilt.
In the UK, reviews prompted by the Criminal Cases Review Commission have resulted in one pardon and three exonerations for people executed between 1950 and 1953 (when the execution rate in England and Wales averaged 17 per year), with compensation being paid.
Colin Campbell Ross was hanged in Melbourne in 1922 for the murder of 12-year-old Alma Tirtschke the previous year in what became known as the Gun Alley Murder. The case was re-examined in the 1990s using modern techniques and Ross was eventually pardoned in 2008. Capital punishment in Australia was abolished in all jurisdictions, with the last execution taking place in 1967.
People's Republic of China
Wei Qing'an (Chinese: 魏清安, 1961–1984, 23 years old) was a Chinese citizen who was executed for the rape of Kun Liu, a woman who had disappeared. The execution was carried out on 3 May 1984 by the Intermediate People's Court. In the next month, Tian Yuxiu (田玉修) was arrested and admitted that he had committed the rape. Three years later, Wei was officially declared innocent.
Teng Xingshan (Chinese: 滕兴善, ?–1989) was a Chinese citizen who was executed for supposedly having raped, robbed and murdered Shi Xiaorong (石小荣), a woman who had disappeared. An old man found a dismembered body, and incompetent police forensics claimed to have matched the body to the photo of the missing Shi Xiaorong. The execution was carried out on 28 January 1989 by the Huaihua Intermediate People's Court. In 1993, the previously missing woman returned to the village, saying she had been kidnapped and taken to Shandong. The absolute innocence of the wrongfully executed Teng was not admitted until 2005.
Nie Shubin (Chinese: 聂树斌, 1974–1995) was a Chinese citizen who was executed for the rape and murder of Kang Juhua (康菊花), a woman in her thirties. The execution was carried out on April 27, 1995 by the Shijiazhuang Intermediate People's Court. In 2005, ten years after the execution, Wang Shujin (Chinese: 王书金) admitted to the police that he had committed the murder.
Qoγsiletu or Huugjilt (Mongolian:qoγsiletu, Chinese:呼格吉勒图, 1977-1996) was an Inner Mongolian who was executed for the rape and murder of a young girl on June 10, 1996. On December 5, 2006, ten years after the execution, Zhao Zhihong (Chinese: 赵志红) wrote the Petition of my Death Penalty admitting he had committed the crime. Huugjilt was posthumously exonerated and Zhao Zhihong was sentenced to death in 2015.
Harry Gleeson was executed in Ireland in April 1941 for the Murder of Moll McCarthy in County Tipperary in November 1940. The Gardai withheld crucial evidence and fabricated other evidence against Gleeson. In 2015 he was posthumously pardoned.
Republic of China (Taiwan)
Jiang Guoqing (Jiang is the family name, Chinese: 江國慶, 1975–1997) was a Republic of China(Taiwan) Air Force private who was executed by a military tribunal on August 13, 1997 for the rape and murder of a five-year-old girl. On January 28, 2011, over 13 years after the execution, Xu Rongzhou (Chinese: 許榮洲), who had a history of sexual abuse, admitted to the prosecutor that he had been responsible for the crime. In September 2011 Jiang was posthumously acquitted by a military court who found Jiang's original confession had been obtained by torture. Ma Ying-jeou, Republic of China's(Taiwan) president, apologised to Jiang's family.
• In 1660, in a series of events known as the Campden Wonder, an Englishman named William Harrison disappeared after going on a walk, near the village of Charingworth, in Gloucestershire. Some of his clothing was found slashed and bloody on the side of a local road. Investigators interrogated Harrison’s servant, John Perry, who eventually confessed that his mother and his brother had killed Harrison for money. Perry, his mother, and his brother were hanged. Two years later, Harrison reappeared, telling the incredibly unlikely tale that he had been abducted by three horsemen and sold into slavery in the Ottoman Empire. Though his tale was implausible, he indubitably had not been murdered by the Perry family.
• Timothy Evans was tried and executed in March 1950 for the murder of his wife and infant daughter. An official inquiry conducted 16 years later determined that it was Evans's fellow tenant, serial killer John Reginald Halliday Christie, who was responsible for the murder. Christie also admitted to the murder of Evans's wife, as well as five other women and his own wife. Christie may have murdered other women, judging by evidence found in his possession at the time of his arrest, but it was never pursued by the police. Evans was posthumously pardoned in 1966. The case had prompted the abolition of capital punishment in the UK in 1965.
• George Kelly was executed in March 1950 for the 1949 murder of the manager of the Cameo Cinema in Liverpool, UK and his assistant during a robbery that went wrong. This case became known as the Cameo Murder. Kelly's conviction was overturned in 2003. Another man, Donald Johnson, had confessed to the crime but the police bungled Johnson's case and had not divulged his confession at Kelly's trial.
• Mahmood Hussein Mattan was executed in 1952 for the murder of Lily Volpert. In 1998 the Court of Appeal decided that the original case was, in the words of Lord Justice Rose, "demonstrably flawed". The family were awarded £725,000 compensation, to be shared equally among Mattan's wife and three children. The compensation was the first award to a family for a person wrongfully hanged.
• Derek Bentley was a mentally handicapped young man who was executed in 1953. He was convicted of the murder of a police officer during an attempted robbery, despite the facts that it was his accomplice who fired the gun and that Bentley was already under arrest at the time of the shooting. The accomplice who actually fired the fatal shot could not be executed due to his young age, and served only ten years in prison before he was released.
See also: List of wrongful convictions in the United States
University of Michigan law professor Samuel Gross led a team of experts in the law and in statistics that estimated the likely number of unjust convictions. The study, published in Proceedings of the National Academy of Sciences determined that at least 4% of people on death row were and are likely innocent. Gross has no doubt that some innocent people have been executed.
Statistics likely understate the actual problem of wrongful convictions because once an execution has occurred there is often insufficient motivation and finance to keep a case open, and it becomes unlikely at that point that the miscarriage of justice will ever be exposed. For example, in the case of Joseph Roger O'Dell III, executed in Virginia in 1997 for a rape and murder, a prosecuting attorney argued in court in 1998 that if posthumous DNA results exonerated O'Dell, "it would be shouted from the rooftops that ... Virginia executed an innocent man." The state prevailed, and the evidence was destroyed.
Chipita Rodriguez was hanged in San Patricio County, Texas in 1863 for murdering a horse trader, and 122 years later, the Texas Legislature passed a resolution exonerating her.
Thomas and Meeks Griffin were executed in 1915 for the murder of a man involved in an interracial affair two years previously but were pardoned 94 years after execution. It is thought that they were arrested and charged because they were viewed as wealthy enough to hire competent legal counsel and get an acquittal.
Joe Arridy (April 15, 1915 – January 6, 1939) was a mentally disabled American man executed for rape and murder and posthumously granted a pardon. Arridy was sentenced to death for the murder and rape of a 15-year-old schoolgirl from Pueblo, Colorado. He confessed to murdering the girl and assaulting her sister. Due to the sensational nature of the crime precautions were taken to keep him from being hanged by vigilante justice. His sentence was executed after multiple stays on January 6, 1939, in the Colorado gas chamber in the state penitentiary in Canon City, Colorado. Arridy was the first Colorado prisoner posthumously pardoned in January 2011 by Colorado Governor Bill Ritter, a former district attorney, after research had shown that Arridy was very likely not in Pueblo when the crime happened and had been coerced into confessing. Among other things, Arridy had an IQ of 46, which was equal to the mental age of a 6-year-old. He did not even understand that he was going to be executed, and played with a toy train that the warden, Roy Best, had given to him as a present. A man named Frank Aguilar had been executed in 1937 in the Colorado gas chamber for the same crime for which Arridy ended up also being executed. Arridy's posthumous pardon in 2011 was the first such pardon in Colorado history. A press release from the governor's office stated, "[A]n overwhelming body of evidence indicates the 23-year-old Arridy was innocent, including false and coerced confessions, the likelihood that Arridy was not in Pueblo at the time of the killing, and an admission of guilt by someone else." The governor also pointed to Arridy's intellectual disabilities. The governor said, “Granting a posthumous pardon is an extraordinary remedy. But the tragic conviction of Mr. Arridy and his subsequent execution on Jan. 6, 1939, merit such relief based on the great likelihood that Mr. Arridy was, in fact, innocent of the crime for which he was executed, and his severe mental disability at the time of his trial and execution."
George Stinney, a 14-year old black boy, was electrocuted in South Carolina in 1944 for the murder of two white girls, aged 7 and 11. He was the youngest person executed in the United States. More than 70 years later, a judge threw out the conviction, calling it a "great injustice."
Carlos DeLuna was executed in Texas in December 1989. Subsequent investigations cast strong doubt upon DeLuna's guilt for the murder of which he had been convicted.
Jesse Tafero was convicted of murder and executed via electric chair in May 1990 in the state of Florida for the murders of two Florida Highway Patrol officers. The conviction of a co-defendant was overturned in 1992 after a recreation of the crime scene indicated a third person had committed the murders.
Johnny Garrett of Texas was executed in February 1992 for allegedly raping and murdering a nun. In March 2004 cold-case DNA testing identified Leoncio Rueda as the rapist and murderer of another elderly victim killed four months earlier. Immediately following the nun's murder, prosecutors and police were certain the two cases were committed by the same assailant. The flawed case is explored in a 2008 documentary entitled The Last Word.
Cameron Todd Willingham was executed in February 2004 for murdering his three young children by arson at the family home in Corsicana, Texas. Nationally known fire investigator Gerald Hurst reviewed the case documents, including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene, and said in December 2004 that "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." In 2010, the Innocence Project filed a lawsuit against the State of Texas, seeking a judgment of "official oppression".
In 2015, the Justice Department and the FBI formally acknowledged that nearly every examiner in an FBI forensic squad overstated forensic hair matches for two decades before the year 2000. Of the 28 forensic examiners testifying to hair matches in a total of 268 trials reviewed, 26 overstated the evidence of forensic hair matches and 95% of the overstatements favored the prosecution. Defendants were sentenced to death in 32 of those 268 cases.
Exonerations and pardons
Main article: List of exonerated death row inmates
Kirk Bloodsworth was the first American to be freed from death row as a result of exoneration by DNA fingerprinting. Ray Krone is the 100th American to have been sentenced to death and then later exonerated.
In the UK, reviews prompted by the Criminal Cases Review Commission have resulted in one pardon and three exonerations for people that were executed between 1950 and 1953 (when the execution rate in England and Wales averaged 17 per year), with compensation being paid. Timothy Evans was granted a posthumous free pardon in 1966. Mahmood Hussein Mattan was convicted in 1952 and was the last person to be hanged in Cardiff, Wales, but had his conviction quashed in 1998. George Kelly was hanged at Liverpool in 1950, but had his conviction quashed by the Court of Appeal in June 2003. Derek Bentley had his conviction quashed in 1998 with the appeal trial judge, Lord Bingham, noting that the original trial judge, Lord Goddard, had denied the defendant "the fair trial which is the birthright of every British citizen."
Colin Campbell Ross (1892–1922) was an Australian wine-bar owner executed for the murder of a child which became known as The Gun Alley Murder, despite there being evidence that he was innocent. Following his execution, efforts were made to clear his name, and in the 1990s old evidence was re-examined with modern forensic techniques which supported the view that Ross was innocent. In 2006 an appeal for mercy was made to Victoria's Chief Justice and on 27 May 2008 the Victorian government pardoned Ross in what is believed to be an Australian legal first.
U.S. mental health controversy
There has been much debate about the justification of imposing capital punishment on individuals who have been diagnosed with mental retardation. Some have argued that the execution of people with mental retardation constitutes cruel and unusual punishment as it pertains to the Eighth Amendment to the United States Constitution. While the U.S. Supreme Court interpreted cruel and unusual punishment to include those that fail to take into account the defendant's degree of criminal culpability,[clarification needed] it did not determine that executing the mentally retarded constitutes cruel and unusual punishment until 2002.
This issue was first addressed in the case of Penry v. Lynaugh, in which Johnny Paul Penry had filed a habeas corpus petition in federal district court that claimed his death sentence should be vacated because it violated his Eighth Amendment rights. His reasoning was that he suffered from mental retardation, and numerous psychologists had confirmed this to be factual, indicating that his IQ ranged from 50 to 63 and that he possessed the mental abilities of a six-and-a-half-year-old. Penry's petition was denied by the district court, whose decision was subsequently affirmed by the Fifth Circuit Court of Appeals. Penry would later appeal to the Supreme Court, who ultimately ruled in a five-to-four decision that the Eighth Amendment to the United States Constitution did not categorically prohibit the execution of persons with mental retardation. Following the 1989 Penry ruling, sixteen states as well as the federal government passed legislation that banned the execution of offenders with mental retardation.
Penry was overruled in 2002 by Atkins v. Virginia, which held that the Eighth Amendment's ban on cruel and unusual punishment precluded the execution of the mentally handicapped, but the Supreme Court left the definition of mentally handicapped as something to be determined by the states.
In 2014, the Supreme Court ruled in Hall v. Florida that states cannot rely solely on an IQ test in determining whether a borderline mentally handicapped person can be executed.
Editorial : Safety of Jail Inmates Responsibility of Judges
The presiding judge of the case who issues arrest warrant against a person , who rejects the bail plea of the accused and the judge who remands accused to police custody / judicial custody is fully responsible for safety , human rights of the prison / jail inmates. Use of 3rd degree torture is rampant in jails and in all such cases , respective presiding judges must be made to pay compensation from their pockets and judges must be charged for AIDING & ABETTING THE MURDER ATTEMPT on prisoner by jail / police authorities. Are the JUDGES & POLICE above Law ?
Review: In Jails, Illegality Is the Norm
BY MAHTAB ALAM
Sunetra Choudhury‘s Behind Bars: Prison Tales of India’s Most Famous highlights how different jail experiences can be depending on who you are and what you can pay.
When I met Santosh Yadav, a journalist from Bastar, for an early morning breakfast in Delhi a few weeks ago, he looked happy. There was a sense of relief and freedom in his eyes. Yadav had been recently released on bail after 17 months of imprisonment. He was arrested by the Chhattisgarh police in September 2015 from his village Darbha in Bastar. At the time of his arrest, Yadav used to report for two Hindi local dailies, the Navbharat and Chhattisgarh. He was accused of being a Maoist supporter and charged under various sections of the Indian Penal Code and other laws pertaining to crimes ranging from rioting, criminal conspiracy, murder, criminal intimidation and with being a part of the banned Communist Party of India (Maoist), among the other alleged offences. He was granted bail by the Supreme Court on February 26 this year, after his earlier bail petitions were rejected by the lower courts.
As soon as he started narrating his jail experiences, he assumed a different persona altogether. There was a sense of intense gloom and despair in his eyes. “What I saw and went through in jail was beyond my imagination,” he said, adding that “I used to think aisa angrezon ke samay hi hota hoga (things like this could have only happened during colonial rule).” Yadav said he was severely tortured and even kept in solitary confinement during his incarceration, apart from routine beatings by the other inmates on the instructions of the jail officials. Listening to Yadav was like re-reading journalist Iftikhar Gilani’s jail memoir, My Days in Prison. Gilani had been jailed in June 2002 on the charges of possessing ‘classified documents’ and booked under the draconian Official Secrets Act. The only evidence presented was a report he had downloaded from the internet. Eventually, he was discharged. In his memoir, Gilani writes, “I was beaten up many times while inside the prison. For 41 days, I worked as a labourer…”
Not everyone goes through the trials and tribulations that Yadav and Gilani underwent. Jail can be quite a ‘haven’ for some, depending primarily on one’s socio-economic background and political influence, irrespective of how grave the charges or the crimes committed. In fact, it’s possible that the graver the nature of the alleged crime, the better the facilities you can avail. All, of course, through illegal means. Unfortunately, in jails, illegality is the norm.
Sunetra Choudhury’s book Behind Bars: Prison Tales of India’s Most Famous tells us how all of this is possible. In so doing, she gives us a glimpse of the underground and parallel economy of jails across the country. Based on extensive secondary research and detailed interviews with people who have spent time in jail as well as those who have worked in or on jails, Choudhury presents a series of stories which are nothing short of eye-opening – dare I say, even eye-popping – in their revelations.
Choudhury profiles the incarceration of 13 people who are either in jail or were at one point of time. While the book mostly concentrates on describing famous people in prison, it does cover others as well. Among the former are politicians Amar Singh, A. Raja and Pappu Yadav, the arms dealer Abhishek Verma’s wife, Anca Verma, CEO Peter Mukherjea and Maoist ideologue Kobad Ghandy. Businessman Subrata Roy of Sahara also finds a brief mention in the introduction.
Narrating her meeting with Roy, Choudhury writes:
“After walking through a long corridor inside the Chandragupta suite [at the Maurya Sheraton, New Delhi] that had been used by heads of state, and after passing a room that only had his shoes, I was ushered into a sitting room with Roy. He was very polite and spoke to me in Bangla, appreciating my work as I’m sure his secretary may have briefed him. Someone brought in some mishit doi and sandesh. As soon as I took out my notebook he said, ‘Listen, don’t include me in this book of yours. I’m not a criminal.’ I told him that not everyone featured in my book would be a criminal. Many would be those wrongly accused of crimes which led them to unfairly spend long years in custody. ‘But I am different. There isn’t even an FIR against me,’ he clarified.”
Roy was given VIP treatment during his jail term. In fact, as the author informs us, he paid a whopping Rs 1.23 crore for the facilities that he received in Tihar. He lived like a king even in jail.
Unbelievable and ridiculous as it may sound, the sad reality is, in the words of Anca Verma, “If you steal 1,000 rupees, the hawaldar will beat the shit out of you and lock you up in in a dungeon with no bulb or ventilation. If you steal 55,000 crore rupees then you get to stay in a 40-foot cell which has four split units, internet, fax, mobile phones and a staff of ten to clean your shoes and cook you food.” This singular quote from the book speaks volumes about the privileges and deprivation faced by people in jails, given their money power and political connections. It also tells us about the rotten nature of our criminal justice system. However, as the author notes, “special treatment in jail is, of course, not a new phenomenon.” She draws our attention towards the case of the infamous Charles Sobhraj. However, what is striking is how, over a period of time, a new normal of ‘super’ special treatment for a certain type of jail inmate has been drawn into our discourse.
Among the most tragic and lesser-known stories is the one of Rehmana. Hers is a clear case of guilt by association. Now out of jail, she is the wife of Pakistani national, Arif who is currently on death row for being an operative of Lashkar-e-Tayyiba convicted in the Red Fort attack case. Though there are several unanswered questions about Arif being an operative of the LeT and his involvement in the attack, Rehmana and her entire family suffer for the crime. “Don’t write their names,” Rehmana requested the author when she met her for an interview.
“Rehmana’s aware that she’s already created considerable problems for everyone associated with her. One of her sisters, a government school teacher in Bhopal, is afraid that Rehmana has spoilt her daughter’s chances of getting a good match. Her brother, a year younger than Rehmana, is still mentally disturbed by all that had happened. Rehmana may have married Arif but they were all hauled to the police station for one night in December. And that night’s nightmare is still too scary for them to emerge from.”
The story of the transgender bar dancer Khushi Sheikh as well as that of the school teacher and a once terror accused Wahid Sheikh are nothing short of horrifying. In both these cases, the perpetrators are those who are entrusted by law to protect the lives and liberties of the people – the police. Referring to Wahid’s case, the author confesses that “Even after two decades of reporting, his account gave me sleepless nights. I realised how in daily journalism we err in relying too much on what authorities say, in not questioning the prosecution agency.”
“Wahid stands acquitted after a decade in jail yet there is no compensation for the time he has lost, for the wounds that he bore from prison. Wahid has given real names of his tormentors, not just to me, but to courts and judges. All of them are decorated police officers—A. N. Roy, K. P. Raghuvanshi, Vijay Salaskar. You can’t dismiss his words because he (Wahid was not convicted) and the others who have been convicted can show you a Mumbai High Court judgement which upholds how they were beaten in jail, their rights violated and then denied medical treatment.”
Though the author regrets not having been able to include the stories of politician M.K. Kanimozhi, IPS officer R. K. Sharma and actress Monica Bedi, one feels that she could have tried including some of the most important stories of those who are either still lodged in jail or have spent years in the prisons of central Indian states like Chhattisgarh, Odisha and Jharkhand. Stories of people like Soni Sori, Linga Kodopi and Jiten Marandi would have enriched the book. Nevertheless, it is a well-researched book and should be read widely and translated into Indian languages.
Jailed for Over a Year, Chhattisgarh Journalist Santosh Yadav Granted Bail
BY THE WIRE STAFF
Bastar-based Santosh Yadav had been jailed in September 2015 by the Chhattisgarh police who accused him of having links with Naxals and of involvement in operations against the security forces.
Chhattisgarh journalist Santosh Yadav was granted bail by the Supreme Court, the Committee to Protect Journalists (CPJ) announced in a tweet. Yadav was arrested in September 2015 by the state police under the Chhattisgarh Special Public Security Act for “associating with a terrorist organisation” and “supporting and aiding terrorist groups”.
Yadav, a Bastar-based freelance journalist, was arrested on September 29, 2015, after Chhattisgarh Police Special Task Force Commander Mahant Singh had said he saw him standing behind a Maoist fighter during an ambush in Darbha in August of that year. The district police echoed Singh’s claims, accusing Yadav of being a Maoist sympathiser; the superintendent also announced that Yadav was suspected of having links with Shankar, a Maoist leader in the area. However, Singh later “expressed inability to identify the accused with certainty”, according to an identification parade memo dated January 1, 2016.
Described as a fearless writer by fellow journalists, Yadav has contributed stories to various Hindi dailies including Dainik Navbharat, Patrika and Dainik Chhattisgarh, reporting on human rights violations in Bastar. Yadav often introduced the family members of those arrested by state police forces to the Jagdalpur Legal Aid Group, a lawyers’ collective that offered free legal services to victims of police excesses. Journalists and activists across the country protested following Yadav’s arrest.
Yadav had served as a point of contact and verification for other reporters writing Bastar, which has been described as a media blackhole, with journalists subjected to routine threats, intimidation, and harassment by both Maoists and the police.
In the chargesheet filed by the Chhattisgarh Police on February 17, 2016, Yadav was charged under various sections of the Arms Act 1959 and the Explosive Substances Act 1908. He was also charged under sections of the Unlawful Activities (Prevention) Act 1967 (UAPA) and the Chhattisgarh Special Public Security Act 2005 (CSPSA), both of which are anti-terrorism legislations.
Sudha Bharadwaj, general secretary of the People’s Union for Civil Liberties, told Scroll.in that the UAPA and the CSPSA are “widely held as draconian as the ‘unlawful activity’ laid down in these Acts are vague and so broad as to be highly amenable to gross abuse and arbitrary and unreasonable action by the state police and administration”.
Yadav’s case points to the broader issue of dwindling press freedom in India, coupled with increasing rates of violence against journalists. In its report published in December 2016, the CPJ had said Yadav was the only Indian journalist to be imprisoned because of his work. According to the 2016 World Press Freedom Index released by Reporters Without Borders (RSF), India ranks abysmally low at 133 among 180 countries, The Hindu reported.“Prime Minister Narendra Modi seems indifferent to these threats and problems, and there is no mechanism for protecting journalists,” the RSF report asserted.
Covert op on Dawood compromised by some Mumbai cops: RK Singh
Noting that Dawood and Lashkar-e-Taiba chief Hafiz Saeed were protected by Pakistani forces, Singh said a secret operation must be carried out in the manner the United States did to kill terrorists Osama bin Laden and Mullah Omar.
India had planned a covert operation to take down underworld don Dawood Ibrahim, but the operation was compromised by some Mumbai Police officials. These are the explosive revelations made by former Home Secretary and now BJP leader RK Singh in an interview to Seedhi Baat on Aaj Tak.
RK Singh revealed details of how corrupt elements of the Mumbai Police foiled a secret operation to take down Dawood. The operation was launched when Atal Bihari Vajpayee was the prime minister and current NSA Ajit Doval was at the IB. Indian government had roped in some elements from the Chota Rajan gang and they were being trained at a secret location outside Maharashtra. But Mumbai Police officials who were in touch with D-company landed up at the training camp with arrest warrants for the covert operatives who had been engaged by India. The entire operation to take down Dawood failed due to these rogue elements in Mumbai police. This is the first time that there is confirmation of a botched covert operation to take down Dawood by someone who has held a position of authority.
Noting that Dawood and Lashkar-e-Taiba (LeT) chief Hafiz Saeed were protected by Pakistani forces, Singh said a secret operation must be carried out in the manner the United States did to kill terrorists Osama bin Laden and Mullah Omar. He added that Pakistan will never admit that Dawood is in Pakistan. Similarly, it will shamelessly deny the presence of other terrorists despite funding and training these terror groups on its soil. "India must repeat the Myanmar operation in Pakistan," he maintained. He added if one operation fails, the government shouldn't be disheartened but launch another operation right away.
Singh said Modi's advisors are not giving him the right advice on this issue. "Nothing will be achieved by handing over dossiers to Pakistan. It is globally recognised as a snake pit. We can't depend on the US to fight India's battles. India has to fight its own enemies," Singh added.
Singh also said the neighbouring country needs to be wise and avert a possible war by not shielding a terrorist. "Pakistan has to calculate the cost of a war. I don't think Pakistan is such a big fool that it would engage in a war with India," he said. "If America sees any threat from Pakistan, it will act. Similarly, Israel can kill its enemies. We need to develop this mentality," he added. The retired bureaucrat revealed that specially-trained private security men comprising mostly ex-army men protect Dawood in Pakistan under the supervision of the ISI. Singh exuded confidence that Modi's visit to the UAE would yield desirable results. He did acknowledge though that Dawood still has significant influence in Dubai.
Coming down heavily on Pakistan, Singh said India must stop dialogue with its neighbor and instead deal with the situation in a strategic manner. "India must hit back in a way that hurts Pakistan the most," he said while suggesting that the dialogue process only helps Pakistan restore credibility which it has lost all over the world. "Pakistan believes in a constant war with India. We have the capability to hit back hard. Any dialogue with Pakistan is futile. For a discredited country like Pakistan, dialogue process is an opportunity to regain its credibility and strike parity with India," Singh said. He said the elected government in the neighbouring country had no control over its military force and the ISI.
Singh lauded the central government's firm stand on separatists in Kashmir. He said the Pakistani government was using separatists to claim in international platform that it has the support of a section of people in Jammu and Kashmir. The Indian government has done the right thing by not talking to separatists, he said.
Criminal justice system victimises poor and vulnerable: CJI
New Delhi: The criminal justice system largely victimises the poor and vulnerable sections of society and there is an urgent need for reform on multiple fronts, Chief Justice of India HL Dattu said today as he called for the scrapping of laws which criminalise begging and sex work.
"Not only does the criminal justice system largely victimise the poor and vulnerable sections of society, very often, laws themselves criminalise poverty and destitution," Dattu said on the occasion of Law Day function on the Supreme Court lawns.
"In India, laws criminalising beggary, sex work and certain occupations of the tribal community are often largely seen by the scholars and human rights activists as widening the net of criminality by punishing destitution.
"Along with legal aid, there must be an intense process to redo the acts that are criminalised towards decriminalisation of acts that has a disproportionate impact on the poor," he said at the function where Union Law Minister DV Sadananda Gowda, too, was present.
On the issue of protection of women against sexual violence, Dattu said, "We seem to be having a growing affinity for ensuring physical safety of women by curbing their freedom.
"As far as I am concerned, I would like to emphatically state in no uncertain terms that the security of women is not achieved by curbing their freedom and liberty and it is no security at all. We have to evolve some systematic reforms," he said.
The Law Minister, who spoke before the Chief Justice, dwelt upon Prime Minister Narendra Modi's ambitious 'Make in India' project, saying that the country is being converted into a major global player through the creation of a business- friendly environment.
Efforts should be undertaken to make India an international arbitration hub, he added.
He said, "The government is pushing the concept of 'Make in India' and converting the country into a major global player, for which we need to have a business-friendly environment.
In ‘safe’ custody
Meenakshi Ganguly, South Asia director, Human Rights Watch, throws light on custodial torture
In-custody torture, though illegal under law, is often resorted too, worldwide, making it one of worst forms of human rights violations. Meenakshi Ganguly, former Time journalist and now, South Asia director, Human Rights Watch, takes up a few questions here to address the subject. Excerpts:
Do you think India should also come out with an official report documenting in-custody torture as the U.S. Senate recently did on CIA's secret torture program?
Torture and other ill-treatment are absolutely forbidden under universally applicable international laws. Most that defend torture argue, as was done by the CIA, that harsh methods are necessary when there is great danger to public security. They speak of the ‘ticking bomb.’ In fact, any experienced interrogator would agree that using torture is not effective because it can produce inaccurate intelligence or generate false leads. The Senate Select Committee on Intelligence (SSCI) report on the CIA’s detention and interrogation program shows that not only was the CIA torture far more brutal and harsh than previously admitted, it was not an effective means of producing valuable or useful intelligence. Repeated claims that the program was necessary to protect Americans turned out to be false.
India has prepared a draft bill seeking to prohibit torture. But as long as there is a culture of impunity, where public officials are protected from prosecution, the law will fail.
Some argue that our judiciary already has enough checks and balances to protect prisoners from abuse. Do you agree with it?
Indian law does not allow confessions to the police as evidence because there is concern that such confessions might be coerced. Under POTA, confessions to the police were permitted, and eventually the law was repealed because it was abused.
Although most police will argue that “third degree” is generally discouraged, in our discussions with the police we also found that it is the most used instrument in their non-existent toolkit. Overworked, where good work is seldom rewarded, junior level staff is expected to produce prompt results — and they do so by rounding up suspects and beating them, hoping to solve the case. Inevitably, they end up with false leads, often make wrong arrests and are unable to secure convictions due to lack of evidence. Poor witness protection and harassment to witnesses also means that they do not want to get involved in a long drawn out trial.
The senior officer level police complain of undue pressure from politicians and powerful figures, who can act as patrons to criminals, demanding they be protected from arrest and prosecution. Instead of upholding the law, it is the police that end up breaking it. The Supreme Court has ruled that the government must engage in police reform. This is crucial to ensure that police in India becomes an effective and accountable force. The judiciary rightly acquits people for lack of evidence. But if police does not receive the training to gather proper evidence, it also means that criminals can get away, while innocents suffer wrongful Muslim, calling me a traitor arrests, torture, and lengthy under trial detention. It also leads to an even more frightening outcome — where the police do not have evidence to convict, they decide to be both judge and executioner, doling out punishment that can range from slaps to extrajudicial killings, or fake encounters.
What vital points does HRW’s in-custody torture report of 2011 throw up?
We found that there is urgent need to implement reforms to the criminal justice system. The police in India operates as it did under colonial rule. We found that fear of police is a barrier to seeking justice. Women and children, victims of sexual attacks, said they feared further abuse if they did venture into a police station. Dalits complain that if they muster the courage to complain, they often find that the victims are made to sit on the floor outside while the upper caste perpetrators are served tea by the officer. Muslims complain of being held in suspicion.
The constabulary and the police station is often the only State presence available to the public, and it is not a pleasant experience. Many policemen agreed that they are often rude and harsh, but they also point to their own frustration, having to deal with a range of issues from domestic violence to communal riots, often because the civil administration simply fails to do its part inimplementing policy. We found police stations with desktop computers, but no electricity or even a trained operator, forget access to data and information. At some places, the residential quarters were shocking. Policemen said they are accused of demanding money when they have to travel a distance in rural areas to investigate a complaint, but said there was a shortage of vehicles or funds to pay for fuel. On the other hand, we found that many State governments are yet to establish independent and effective human rights commissions or set up a complaints authority to investigate police abuse.
Don’t we have guidelines to prevent custodial torture?
The Supreme Court and the NHRC have laid down guidelines. Unfortunately, they are routinely ignored. That is why there is such a strong demand to seek the repeal of AFSPA to be replaced by one that has stronger human rights protections. The law provides widespread powers, but protects soldiers when those powers are abused.
In the investigation of terror attacks, police have made mistakes, often due to the use of torture. The Andhra Pradesh Minorities Rights Commission, for instance, found the wrongful use of torture and recommended compensations. In one case in Orissa, we had a man tell us that he was beaten by the police so severely, his leg was fractured. In agony, when the police continued to hit his injured leg, he blurted out the names of his office colleagues, who were then arrested and tortured. All of them were charged under the counter terror laws as members of the banned Maoist groups. Eventually, they were found to be innocent by the courts.
India is yet to sign the UN Convention Against Torture. Will it help?
Pakistan, Bangladesh and Sri Lanka had even permitted UN special rapporteurs on torture to visit their countries but reports of in-custody torture continue to pour in from such countries. Police often say that human rights impose restrictions when tough measures are needed for tough challenges. Unfortunately, any compromise is only going to lead to bad outcomes.When the State allows, even rewards, its security forces to violate the fundamental principles of the Constitution, it rarely turns out well. It leads to corruption at the very least. It can also turn policemen into killers for hire, or as a military court discovered recently, lead soldiers to kill innocents for profit.
In Sri Lanka, we have documented torture including sexual abuse of suspected LTTE supporters and sympathisers. In Bangladesh, the Rapid Action Battalion was created as a counter-terror force, but instead has repeatedly been accused of extrajudicial executions. People want to feel safe. However, we often find that denial of rights can cause security challenges, but the continued violation of human rights aggravates the situation, leading to a cycle of violence and placing innocents at risk.
Muslims, dalits and tribals make up 53% of all prisoners in India
Muslims, dalits and adivasis — three of the most vulnerable sections of Indian society — make up more than half of India's prison population, according to an official report on prisons released this month. Although the proportion of these three communities in India adds up to about 39%, their share amongst prisoners is considerably higher at 53%.
India had 4.2 lakh people in prison in 2013. Nearly 20% of them were Muslims although the share of Muslims in India's population is about 13% according to Census 2001. Religion-wise data from Census 2011 is yet to be released but it is unlikely to be much different. Dalits make up 22% of prisoners, almost one in four. Their proportion in population is about 17% according to Census 2011. While adivasis make up 11% of prisoners, their share in the general population is 9%.
Most experts say that this disturbing trend is not because these communities commit more crimes. Rather, it arises because they are economically and socially under-privileged, unable to fight costly cases or often even pay for bail. Some say that these communities are targeted with false cases.
Former chief justice of Delhi high court Rajinder Sachar, who headed the committee that brought out a report on the condition of Muslim community in India in 2006, pointed out that there had been several cases of Muslim youths being acquitted after years in prison.
"Poverty is more prevalent among these three communities and that becomes an obstacle in dealing with the legal system," said Colin Gonsalves, human rights activist and lawyer.
"Our system has an ingrained communal and casteist bias. Also, the proportion of these communities in the police officers and even judiciary is less. These are key factors behind this shocking imbalance," he added.
Pointing out that nearly 68% of the prisoners are undertrials, Abusaleh Sharif, who was member-secretary of the Sachar Committee and later brought out an updated report on the conditions of Muslims, said that they had to remain behind bars because of inability to negotiate the hostile system.
"Among those in prison under preventive detention laws, nearly half are Muslims. This is the kind of thing that the government needs to speedily investigate and resolve," Sharif said.
Ramesh Nathan of the National Dalit Movement for Justice alleged that false cases are filed against dalits in order to intimidate them, causing this disturbingly high number of prisoners among vulnerable sections.
"In my experience as a lawyer, whenever a dalit person files a case under the Atrocities Act, a false countercase under some penal code provision is filed by the culprits," he said.
Prison statistics are published annually by the National Crime Records Bureau since 1995, although caste breakup is available since 1999. The proportions of Muslims, dalits and adivasis have remained virtually unchanged over the past 15 years indicating that this is a systemic problem.
NCRB data: Almost 68 percent inmates undertrials, 70 per cent of convicts illiterate
Almost 68 per cent of all inmates in the 1,387 jails in the country are undertrials, according to the latest figures released by the National Crime Records Bureau (NCRB) for 2014. Over 40 per cent of all undertrials remain in jail for more than six months before being released on bail.
The percentage of undertrial prisoners who remain in jail for more than three months has also gone up from 62 per cent in 2013 to 65 per cent in 2014. The data looks worse when compared to previous years which showed a declining trend. In 2012, the figure stood at 62.3 per cent.
According to the NCRB data, Goa, Jammu and Kashmir, Gujarat and Punjab are the worst performing states, with over 75 per cent of undertrials remaining in jail for over three months. On the other hand, Kerala and Tripura recorded the lowest such cases — 35 per cent and 32 per cent respectively.
A large number of undertrials remain in jails due to their inability to secure bail. The highest percentage (27.3 per cent or 63,225 of the total 2,31,962) of undertrials under IPC crimes were charged with murder. Uttar Pradesh reported 17.9 per cent of such undertrials, followed by Bihar at 8.8 per cent. A total of 6,274 convicts were habitual offenders.
The NCRB data shows that there were 4,18,536 inmates in various jails against a capacity of 3,56,561. Chhattisgarh (259 per cent) and Delhi (222 per cent) were among those which reported high overcrowding. Muslims continue to form a large share of the undertrial population, with their numbers being disproportionate to their overall population.
According to the 2011 census, Muslims constitute 14.2 per cent of India’s population. But the community accounts for 21.1 per cent of all undertrials. Among the convicted inmates, however, the Muslim share is just over 16 per cent.
An analysis of the caste-based classification of undertrials reveals that 37.4 per cent are from general category, 31.3 per cent OBCs, 20 per cent Scheduled Castes and 11 per cent Scheduled Tribes.
A total of 318 convicts, including eight women, lodged in different jails were facing capital punishment at the end of 2014. Of these, 95 were awarded death sentences in 2014 alone. As many as 112 inmates had their death sentences commuted to life imprisonment last year.
The data also show that 1,702 imates died in jails due to various reasons, of which 1,507 were recorded as natural deaths.
Health Care for Prisoners
People believe that prisoners are sent to prison as punishment, and not for punishment. This implies that the loss of an individuals right to liberty is enforced by containment in a closed environment. Thus keeping the individual in the custody of the state, should not, however, have a deleterious effect on him. But this is, unfortunately, the case to some degree or another in many of the worlds prisons. Is it possible then to define what is healthy environment in a prison? Let alone, talking about a prisoners right to health services that are to be provided to him by the prison authorities?
The answer to this question is that prisoners have unalienable rights conferred upon them by international treaties and covenants, they have a right to health care, and most certainly have a right not to contract diseases in prison. Prison jurisprudence recognizes that prisoners should not lose all their rights because of imprisonment. Yet, there is a loss of rights within custodial institutions, which continue to occur. Public health policies are meant to ensure the best possible living conditions for all members of society, so that everyone can be healthy. Prisoners are often forgotten in this equation. They are in constant contact with all kinds of people who come in and out of prison every day. This constant movement in and out of prison makes it all the more important to control any contagious disease within the prison so that it does not spread into the outside community.
In India, overcrowding has aggravated the problem of hygiene. In many jails, conditions are appalling. At the tehsil level jails, even rudimentary conveniences are not provided. Prisoners in India are not even tested for specific infectious diseases, although all prisoners undergo a medical examination when they begin serving their sentence. No studies of the prevalence of viral infections among prison inmates have been done at a national level. India's prison manuals provide for
segregation of prisoners suspected of having contagious diseases. A few jails have established informal contacts with medical and social organizations for counseling of inmates to prevent the spread of infections.
Violence in prison settings has many causes. Clashes may have ethnic causes, or rivalries between clans or gangs. The closed, often vastly overcrowded, living conditions also lead to hostilities between inmates. The tedious prison environment, lack of occupation of mind and body and just plain boredom, lead to accumulated frustration and tension. This environment leads the way to high-risk activities, such as use of drugs and sex between men. Some indulge in these activities to combat boredom. Others, however, are forced to engage in them, in a coercive play for power or monetary gain. Risky lifestyles can lead to the transmission of diseases from one prisoner to other prisoners, and pose a serious public health risk if unchecked. Contracting any disease in prison is not part of a prisoners sentence. This fact becomes even more significant when the disease is potentially fatal, as is the case with HIV/AIDS.
The Supreme Court of India in its landmark judgment in Parmanand Katara vs Union of India (1989)and others ruled that the state has an obligation to preserve life whether he is an innocent person or a criminal liable to punishment under the law. With specific reference to health, the right to conditions, adequate for the health and well-being of all was already recognized in the Universal Declaration of Human Rights. The International Covenant on Economic, Social and Cultural Rights ( ICESR) furthermore states that prisoners have a right to the highest attainable standard of physical and mental health.
The minimum standard rules for prisoners regulate the provision of health care for them. Apart from the civil and political rights, the so-called second generation economic and social human rights, as set down in the ICESCR, also apply to prisoners. The right to the highest attainable standard of health should also apply to prison health conditions and health care. This right to health care and a healthy environment is clearly linked, particularly in the case of HIV, to other first generation rights, such as non-discrimination, privacy and confidentiality. Prisoners cannot fend for themselves in their situation of detention, and it is the responsibility of the state to provide for health services and a healthy environment.
Human rights instruments call for prisoners to receive health care at least equivalent to that available for the outside population. On one hand, equivalence rather than equity has been called for because a prison is a closed institution with a custodial role that does not always allow for the same provision of care available outside. Prisoners are more likely to already be in a bad state of health when they enter prison, and the unfavorable conditions therein worsen the health situation. Hence the need for health care and treatments will often be greater in a prison than in an outside community. However, providing even basic health care to prisoners has proved extremely difficult in India, as the health system is chronically insufficient.
In prisons, the human environment is often one of violence and high-risk lifestyles, either engaged in voluntarily by those prisoners with positions of power, or forced upon the weaker prisoners. Prisoners have a right to live in conditions where their individual safety is guaranteed. It is paramount for the prison administration to have a thorough knowledge of how HIV is likely to be transmitted in a given prison. If sexual coercion and/or violence are the main issue, better surveillance and timely intervention to protect targeted prisoners must be enforced. HIV-positive inmates should not be denied access to recreation, education or access to the outside world.
From a strictly medical point of view, there is no justification for segregation as long as the prisoner is healthy. Solitary confinement of HIV-positive inmates should be forbidden. Any restrictions should be exceptional, such as mandatory testing for particularly risky situations, such as prisoners working as medical orderlies in hospitals or dental clinics. There may also be considerations of personal security where, for example, prisoners known to be HIV-positive request to be kept in a secure unit as they fear for their own safety.
Both prison reform and penal reform are crucial elements if the many problems affecting the Indian prisons are to be resolved. Diminishing the overall prison population will allow improvements of the physical and working conditions of the prisons, and help to ensure the security of all individuals in custody. Obviously, financial resources will have to be allotted to the prison systems as well. One effective way to curb the rise in prison populations would be to offer alternatives to imprisonment for non-violent and civil offenders.
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