Prisoners’ Rights and Values of Indian Democracy: An Introduction

In India, the debates around prison reforms and rights of prisoners have been very limited. Through our three-part series we seek to initiate a debate towards prisoners’ civil and political rights. This series will cover prisoners’ right to vote, to write and to strike with the understanding that these rights, if granted, will expand the ever so shrinking spaces for an incarcerated person to express and reach out to the world outside highlighting conditions of the prison and their experiences, including those of torture.

Prisons in the modern democracy have been envisioned as reformative care-giving institutions. However, the reality of prisons is that there is overcrowding; inhuman living conditions; a dearth of basic needs such as access to food, medical treatment and cleanliness; absence of accountability and transparency of administration, targeting and surveillance, torture and even death; least of opportunities of skill building or recreation. Why is this so? For one, society’s understanding of the treatment of prisoners is being highly influenced by the fear related to crime control and increasing targeting and otherisation of persons from certain sociopolitical affiliations. Being tough on crime through severest punishments is the new standard for good governance. Prisoners form a section of the society which is shunned, secluded and seldom talked about. Making matters worse is the fact that no document declares mandatory rights of prisoners, leaving it up to the changing governments and changing moods of the society.

According to the 2016 policy, the latest one, published by Government of India regarding prison management in the form of Model Prison Manual 2016, a “Perspective” chapter from the manual states:

"India shares the universally held view that a sentence of imprisonment would be justifiable only if it ultimately leads to the protection of society against crime. Such a goal could be achieved only if incarceration motivates and prepares the offender for a law-abiding and self-supporting life after his release. It further accepts that, as imprisonment deprives the offender of his liberty and self-determination, the prison system should not be allowed to aggravate the suffering already inherent in the process of incarceration."

This perspective is a result of various judgments pronounced by the Supreme Court of India in the last several decades, in which the prison administration has been reprimanded regarding the inhuman living conditions in prisons and animal-like treatment of prisoners. The United Nation’s Standard Minimum Rules for Treatment of Prisoners also call for the dignified treatment of prisoners leading to their reintegration to into society and no further infliction of pain other than the imprisonment itself.

The Supreme Court of India has made it clear that a prisoner should be treated with dignity and as a legal citizen with rights, regardless of their status as a detainee, undertrial or convict.

“Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanisation and to repudiate the world legal order, which now recognises rights of prisoners in the International Covenant on Prisoners’ Rights to which our country has signed assent”. (Supreme Court of India in Sunil Batra v Delhi 7 Administration 1979)

But the prison administration in practice does not adhere to such a line of thinking. The perspective of a prisoner's reform, rehabilitation and re-integration into society has not been given thought and acceptance.

As laid down in the Mulla Committee report, the rights of prisoners are broadly categorised as right to human dignity, right to basic minimum needs, right to communication, right to access to law, right against arbitrary prison punishment, right to meaningful and gainful employment and right to be released on the due date. But to fulfil the perspective of prison management, that is, to consider a prisoner as a person with rights and to work towards their rehabilitation and reintegration in the society, as laid down in Model Prison Manual and as earlier pronounced by the Supreme Court, it is important to broaden the horizon of the rights of prisoners.

The first article in the series will discuss the prisoner’s right to vote. While in United States, the right to vote for prisoners had resurfaced after a nationwide strike by prisoners in 2018 (Pilkington 2018) and discussions led by Bernie Sanders, one of the Democratic candidates for 2020 Presidential election (German 2019). In India, this issue has chances of being debated since three law students have filed a public interest litigation in the Supreme Court against section 62(5) of the Representation of Peoples Act, 1951 (Bose 2019). This law disenfranchises any Indian citizen confined in prison. The issue of right to vote for prisoners has seldom been discussed in India. This article will present the trends of prisoners’ right to vote in different countries, the arguments used to deny this right, and make a case for why India should grant its prisoners the right to vote.

The second part of the series will discuss prisoners’ right to write and the contributions of their writings towards creating prison reforms. The article will elaborate upon prison-writing as a growing and important body of literature. Prison-writing, including writings in prison, can contribute to a prison reform movement in India. One of the primary “insiders” to any prison is a prisoner. Yet, a prisoner (or an ex-prisoner) has never been looked at having potential to contribute to the knowledge about prisons and to the movement of prison reforms. A closer look at the usually accepted history of prison reforms in India can show how writings of prisoners have led to landmark judgments by Indian courts. Prisoners in their restrictive circumstances have written letters and telegrams reporting their human rights violations and identifying issues inside the prison that need to be reformed. This paper illustrates such five unacknowledged writings of prisoners which have contributed to prison reforms in India. The article also discusses provisions in policy regarding writing in prison.

In March 2019, prisoners of Jaipur Central Jail were on strike against their solitary confinement, also demanding the setting up of a grievance box and a visit by district judges (Hindustan Times 2019). Both the demands are mandatory as per the Supreme Court of India. These prisoners despite their legitimate demands were beaten up, tortured and threatened with “dire consequences.” In addition, they  were charged in a case of causing hurt and using criminal force against government officials, that is, prison authorities in this case. Similarly, women prisoners of Byculla Jail rebelled and caused uproar to highlight murder of their co-prisoner Manjula Shetty by prison authorities (Mengle 2017). If it wasn’t for their strike, Manjula’s case would never have seen the light of day. But despite the legitimate concern that the women prisoners wanted to highlight, they were charged of rioting, unlawful assembly, use of fire and explosives, etc. These are just two recent and known instances. Prisoners in India as well as around the world ever since have been going on protest strikes against inhuman prison conditions or to demand reforms. And yet, such acts have always been criminalised. The third article discusses prisoners’ right to protest and organise, situated in the larger question of interrogating the citizenship of prisoners.

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