No room for prisoners

According to the World Health Organisation, overcrowding refers to the situation in which more people are living within a single dwelling than there is space for, so that movement is restricted, privacy secluded, hygiene impossible, rest and sleep difficult. This clinical definition does depict or convey the impact of the overcrowding on the prisoners.

Prisoners have to sleep on the cement floor with a filthy blanket and with lights on; often they do not have privacy even when they go to the toilet or have a bath. They are subjected to cavity searches each time they are taken to the court in vehicles filled to capacity and sit in overcrowded lock-ups in the courts.

I still remember when I went to see 36 Burmese freedom fighters who had been in jail in the Andaman Islands. They were undertrial prisoners. Under the rules, pre-prisoners are not given basic amenities such as soap, toothbrush, etc by the jail; the prisoner or his family must provide for them. But these men had no relatives and no money. For nearly two years they had not had any soap, toothpaste or underwear. When I saw them, they stank like animals in the wild.

It is not only foreigners who are kept in jails in India without trials. A majority of prisoners in Indian jails and prisons are those who have never been tried; people who have never been convicted of any offence. Almost 80 per cent of the prison population in India consists of undertrials. And that is the single biggest reason for overcrowding in the jails.

Take the example of Rudul Sah, the man acquitted by the Court of Sessions, Muzaffarpur, Bihar, on June 3, 1968, but released from the jail only on October 16, 1982.
That is to say, more than 14 years after he was acquitted. The Supreme Court, which was informed that the prisoner was insane, had observed: “No medical opinion is produced in support of the diagnosis that he was insane nor indeed is any jail record produced to show what kind of medical treatment was prescribed for and administered to him and for how long.”

Detention centres
Things have not changed since the time the story of Rudul Sah made front page news more than three decades ago. There are many Rudul Sahs in the jails and detention centres all over the country. Some have not even been tried and have spent more years in prison than they would have if they had been convicted of the offences they are charged with. There are many who have been given bail but do not have the money to pay the bail amount.

Vijay Kumari had been granted bail in 1990 but it would take her 19 years before she could raise Rs 5000 to deposit. She was pregnant at the time when she was imprisoned and had her baby in jail. The boy grew up and as he became a young man, worked in a garment factory in Kanpur and saved every rupee that he earned to help get his mother's release in May, 2013.

One of the main reasons why the jails in India are overcrowded is precisely because they are filled with people who have never been put on trial and have already spent more time in jail than the time they could have been sentenced for if they were convicted of the offences they were charged with.

I am not going to quote all the provisions of international human rights law which protect the rights of prisoners which India is committed to upholding. But keeping people in jail without trial is a violation of Indian criminal law, of Section 436-A which was introduced in the Criminal procedure Code in 2005; the section prescribes a maximum period for which an undertrial prisoner can be detained.

The Northeast scene
I still remember a time in early 1990s when Arunachal Pradesh had no jail because it had no crime. I was representing two women arrested in Assam who said they were from the Changlang district of Arunachal Pradesh. I thought I would file a petition to get them transferred to their home state so it would be easier and cheaper for their relatives to take them out. I asked the student leaders whether this would be a good idea.

The President of the All Arunachal Pradesh Students Union at Guwahati was silent. When I asked him what the matter was he looked up and said: “Madam, we are very backward, we do not have a jail in our state.”

Arunahcal Pradesh now has a jail. But I was shocked to find that it has a capacity to hold 56 prisoners but there are already 92, an occupancy rate of 164 per cent.
In 1958, there was just one small jail in Delhi; it was known as the District Jail and located near the Delhi Gate. Today, the Capital of India boasts of having the biggest jail complex in South Asia ironically called Tihar Ashram with eight jails housing more than 13,500 prisoners although it has capacity for only 6,250; the occupancy rate is thus 216 per cent. Is it an achievement or shame?

The overcrowding in the jails deprives the men, women and children of their dignity; but many prisoners have told me that even worse than the overcrowding is the complete deprivation of human company when a prisoner is put in isolation or solitary confinement. A prisoner is confined to a small cell without being allowed to go to the library, play games or access TV. The political prisoners, especially those accused of terrorism are put in cages, deprived of even an hour in the sunlight and enclosed in a silence designed to deprive them of their dignity and sanity.

Unfortunately, the story is not very different in other parts of the world. There are nine million prisoners in the world; most of them under trial or awaiting trial. They are deprived of their rights to liberty, security and equal justice.

The impact of this unfair, harmful and inhuman practice is felt by the families of these detainees. Most of the people detained are poor and belong to racial or religious minorities.

There are now a growing number of people in the world who believe that the question is no longer about how to reform the prison system but how to abolish it.