In a twist away from constitutional guarantees that direct public gaze on to those unfortunates who are segregated from society in prisons, the Ministry of Home Affairs issued an advisory/notification on July 24 for regulating jail visits of individuals/ NGOs/company/press that places excessive restrictions on freedom of the press and researchers in the garb of “allowing” them.
Considering the fact that the prisoners’ right to communication with the outside world has been guaranteed as right to life under Article 21 by several Supreme Court judgments, which affirms the right of the press to exercise its freedom of speech and expression vis-a-vis prisoners, the advisory appears highly “unreasonable” and out of line with prison laws and jurisprudence.
The advisory expects filmmakers and researchers to submit an “undertaking” to the jail superintendent before conducting an interview. Under this, the researcher must agree to obtain a “no objection certificate (NOC)” from the state government, home department or prison authorities and agree to get the final version cleared by the jail superintendent.
An unreasonable monetary deposit, a hefty amount of Rs 1 lakh, will now have to be made for an interview in jail, and it could also get forfeited. The researcher must submit his/her equipment to the jail superintendent for three days after the assignment and agree not to release any findings in the form of documentary/articles/papers/books or any content thereof other than what has been vetted. And even after an NOC is obtained, the visitor may be asked to withdraw the report/article/recording from publication. The guidelines state that the jail superintendent, or the next senior staff, must accompany the visitor and the officials are empowered to intervene during an interview and even delete the recording if they find it undesirable or objectionable.
Are such restrictions to prisoners’ visitation rights and to press and academic freedom and independence, tenable under our laws?
The Prison Act, 1894, acknowledges the desire of prisoners for communication and categorically allows admission, in the interest of justice, to those whom the prisoner wants to meet at proper time with proper restrictions and allows for undertrials to meet with their duly qualified legal advisers without the presence of any other person.
The right to freedom of speech and expression is guaranteed to all citizens under Article 19(1) of the Constitution. The state can apply “reasonable” restrictions on this right under Article 19(2) only in the interest of the sovereignty and integrity of India etc. If this advisory is motivated by the incident of the interview by a British researcher of the rape accused in Nirbhaya case, then none of these interests can be said to have been threatened, nor were jail visiting rules violated for press freedoms to have exceeded themselves.
The advisory, therefore, falls foul of the “reasonable” criteria under Article 19(2) and thereby reneges on adequate compliance to the protections assured in the above mentioned Supreme Court judgments.
The Supreme Court in Sunil Batra v Delhi Administration maintained: “We see no reason why the right to be visited under reasonable restrictions should not claim constitutional status. We hold, subject to discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners’ kit of rights and shall be respected”.
Depriving the right
In the case of P Nedumaran v State of Tamil Nadu, Rep, 2001, the Supreme Court ruled: “The deprivation of the right of a friend to visit a prisoner is unreasonable and arbitrary…It is no longer a facility or a privilege; it is now elevated to the status of a fundamental right to a prisoner to have an access to his relatives or friends, and similarly, or the right of a relative or friend of a prisoner to interview him.”
The judgment in Prabha Dutt case acknowledges the press’ entitlement to exercise its freedom of speech and expression and the right to means of information through the medium of an interview of prisoners but with reasonable restrictions, provided the prisoners are willing to be interviewed. Ascertaining the willingness itself implies reasonably free access.
The Supreme Court in Sheela Barse case has referred to members of the press as friends of society and public-spirited citizens. It sees them as furthering the fundamental rights of the undertrial and convicted prisoners who are segregated from society and permits them as citizens to have access to information and interview prisoners.
It provides a balance between the prisoners’ right and need for disclosure and the requirement of the prison administration to prevent damage through malicious information. While placing restrictions on “uncontrolled interviews”, the judgment draws attention to the need for “appropriate attitude” within prisons to raise the standards for communication and necessary safeguards provided in the jail manuals to those found in judicial decisions.
We can see that no provision in the Prison Act, the jail manuals, or even in the specific Supreme Court judgments, the notification uses to stand upon (Prabha Dutt and Sheela Barse), favour jail authorities to abandon the path of “reasonable” restrictions and assume the excessive powers they are being advised to by the Home Ministry notification.
Such a requirement, if brought into practice, would infringe on fair and independent reporting and would fail to detect maladministration, meaning the public will receive “only good news” from prisons.
That would be quite comforting were it not for the number of deaths in custody being on the rise, numerous instances of undignified punishments and ill-treatment in prison, or the truth of long and unnecessary detentions that the jail adalats and review bodies ordered under the Supreme Court and High Courts directives are now revealing.
(The writer is coordinator, Prison Reforms Programme, Commonwealth Human Rights Initiative, New Delhi)
Published 26 September 2015, 18:25 IST