Prisoners’ Right to Write: Why SC Rulings Should be Taken Seriously by Prison Authorities

This article discusses the legal jurisprudence and policies affecting a prisoner’s right to express and write, also highlighting how such a right in practice is being infringed as a casual practice of prison administration. The article stresses why writing should be a duly recognised right of the prisoner. Further, the article shows how the writings of prisoners have contributed to reforms in prison conditions in India.

 

This is the first part of a three part series on Prisoners' Rights in India. You can read the Introduction here

 

According to the Supreme Court of India, a prisoner regardless of their status as a detainee, undertrial or convict, and even regardless of the crime alleged or proven against them in the court of law, enjoys all rights as any other citizen of the country, except that of liberty. But, what about a prisoners’ right to write? Prison administration in India is a state subject, and there is no uniform legislation which governs all prisons. The administration of prisons governed as per some prisons Acts and manuals adopted by different states. In this article, I have analysed some of these prison acts and manuals to discuss how free a prisoner is to write.

Letter writing

The British-era Prisons Act, 1894, which has been adopted by states in various forms, does not specify anything related to writing by a prisoner. Prison manuals allowed writing letters to friends, family and lawyers as a facility for a limited number of times subject to scrutiny of the superintendent. For example, the Maharashtra Prison Manual 1979 says that a convicted Class I prisoner is permitted to write two letters on government cost and two letters on their own cost per month, while Class II prisoners can write one letter each; letters to their advocates were additional. Letters can be written only to close relatives and friends, subject to censorship by the superintendent. Supply of necessary writing material will be additionally given for preparation of petitions/applications. This facility is subject to good conduct and can be withdrawn by the superintendent otherwise. Hence, as per the prison manual, writing even if limited to writing letters to family and friends is not a right but a privilege.

The Mulla Committee in its 1983 report recommended that there should not be any limit on incoming letters and no restrictions on number of letters prisoners may send at their own cost. It was also recommended that guidelines for censorship of letters should be formulated (Mulla 1983, Chapter VI, Vol I). The Mulla Committee report also recommended that the Right to Communication should be a specific provision to act as a safeguard for prisoners against exploitation. The report mentioned that the Right to Communication will include the right to communication with the outside world, right to periodic interviews, and right to receive information about the outside world through communication media (Mulla 1983, pp. 46, Vol I).

Paying heed to the committee’s recommendation, some states made changes. For example, the Delhi Prisons Act, 2000 allows prisoners to write any number of letters at their own cost, but similar to the Maharashtra Prison Manual, letters would be subject to examination and censorship by the superintendent for portions that are likely to endanger the security of the state or prison or contain false information about the affairs of the prison. Also, this facility can be withdrawn or postponed citing bad conduct of the prisoner. Even according to the latest Model Prison Manual 2016, a superintendent can suspend or withdraw the privilege of writing letters citing bad conduct of the prisoner. This manual also heavily censors the contents of the letter as it states that  the contents of all letters shall be limited to private matters and the superintendent can censor or withhold any letter if correspondence is with undesirable persons, or if correspondence is found detrimental to the prisoner's rehabilitation, or for reasons of security and discipline, or during periods of emergencies, or if the content seems improper or objectionable.

Hence, even the only writing recognised by the manuals/acts, that is, letter writing, is not a right but a privilege that can be suspended any time and is subjected to vague and non-appealable censorship by the superintendent.

Moreover, another section in the Delhi Prisons Rule 1988 places “All books, paper and printed or written matter and materials and appliances for printing or writing of whatever description under the list of prohibited articles,” provided that the superindent may permit the supply of books, paper and pen or pencil. The courts, however, have looked at writing by prisoners more liberally and have almost deemed writing as a right of the prisoner.

The Right to Write and the Courts 

The Supreme Court took the stand in 1966 that any detenue or prisoner also enjoys Article 21, right to life, along with other fundamental rights guaranteed by the Constitution (State of Maharashtra v Prabhakar Pandurang 1966). The prisoner in the context of this case was seeking direction from the court to send a book for publishing which he had written while he was in prison. The apex court deemed the act of prison authorities, restricting the writings of the prisoner to be sent to his wife for eventual publication, as illegal. In 1981, in Francis Coralie v Delhi Administration (1981), the judges believed that the word “life” includes “facilities for reading, writing, expressing oneself in diverse forms…”

In Madhukar Bhagwan Jambhale v State of Maharashtra & Others (1987), the court observed:

We fail to see why the prisoner should not give vent to his grievances against the prison administration to the outside world through his letter...[when] the prisoner is not prevented from making these grievances in the interviews which are permitted under the rules…By reason of conviction and being lodged in jail, the prisoner does not lose his political right or rights to express the views on political matters.

The Court struck down the rules that resulted in undue censorship on prisoners’ correspondence with the outside world and prohibition of the inmates to correspond with inmates of other prisons, citing such restrictions as unwarranted, unjust and unreasonable and thus to be found in violation of the Constitution. The Court also made it a rule or we can say granted it as a right to the prisoner to send letters or address a petition containing grievances, through the superintendent, to the authorities.

In another case, Inacio Manuel Miranda and Others v State (1989) which addressed complaints made by several prisoners through letters, it was pronounced that the classification of convict prisoners for the purpose of writing letters could safely be treated as discriminatory, and therefore, unreasonable. The judgment further ruled that all convicts should be treated equally in the matter of writing letters and should be allowed to write at least four letters per month, two with the paper supplied by the government at government cost, and two, at the cost of the prisoner, on the paper supplied by the government.

Based on the aforementioned judgments of the Supreme Court, it can be said that:

i) The rules in jail manuals differentiating between ‘classes’ of convict prisoners with regards to number of letters allowed per month, are illegal. All convict prisoners are to be allowed the facility of writing letters in the same manner.

ii) A prisoner can write in prison, and even send his writings for publication outside.

iii) A prisoner should be given facilities for reading, writing, and expressing themself in diverse forms, including the right to express views on political matters, as part of their right to life guaranteed by Article 21 of the Constitution

iv) A prisoner can write complaints to the authorities, even against the prison administration and hence the prison administration should refrain from undue censorship on the contents of a prisoner’s writings.

v) A prisoner can communicate with other prisoners.

But despite such rulings from the Supreme Court, prisons in India still follow arbitrary and restrictive rules from jail manuals.

I interviewed Abdul Wahid Shaikh, who was acquitted in the 7/11 Mumbai Train Blast case after nine years of incarceration. Wahid revealed that he had to write his book Begunah Qaidi twice inside prison, as the first set of the pages of his book were destroyed by prison authorities[1]. Subsequently he used to write a few pages and send them out hidden in files containing legal documents. Over a period of time, Shaikh was able to send out the manuscript of his entire book. Shaikh mentioned that usually prisoners are allowed to keep a pen and paper with them in their cells or wards. Prison canteens also sell such stationary items, however, the practice of writing in prison by the prisoners is highly dependent on prison authorities. There is no standard practice and it is not treated as a right of the prisoner. In high profile cases, there is a higher level of rescritions, where prisoners have to get court permissions to avail the facility of writing.

According to Shaikh, the administration is usually wary when prisoners begin writing because of a fear that they might want to write about the happenings or conditions in the prison. Shaikh suggests that a prisoner should be allowed to read and write even during police custody which is the most crucial time, prone to torture and ill treatment. He also shared that there is a practice where the concerned police stations or investigating agencies usually direct the prison administration to not allow a prisoner to write or to heavily censor his writings till the time chargesheet of the case is submitted in the court or till the trial is complete.

Arun Ferreira, advocate and author of Colours of the Cage (2014) describes how his letters used to pass through “various layers of officialdom,” and how his letters would be read and photocopied to be sent to investigating units. He had to stick to facts while communicating, as views on political matters, criticism of jail administration or even personal emotions regarding experiences in prison were insisted to be removed from those letters.

“We would be summoned and lectured on how such writing would incite prison disrespect and indiscipline. Disparaging remarks about the jailer could not even be contemplated.” (Ferriera 2014, pp 35)

Ferreira started the practice of numbering his letters written to family as he discovered that some of his letters were not allowed to be sent out of prison. Even writing applications on letters to judges, Arun writes, was dependent on the whims of the prison staff (Ferriera 2014, pp 74).  

Contrary to the ruling of the higher courts, Arun describes how he was denied several books sent by his family, including the Prison Manual and the Constitution of India. His subscriptions of magazines were also never allowed to reach his cell. Ferreira, in his book, also points to how Maharashtra prisons do not have funds to buy printed material and the prison libraries are dependent on donations. Despite there being a rule granting free newspapers, prisoners have been forced to buy out a select list of newspapers, after censoring and at their own expenses.

Writing is not just a need for the prisoner, but a prisoner’s writings is also needed for us as a society who wants to understand prison conditions and its effects; it can contribute to the prison reform movement in India.

Prisoners’ Writing towards Prison Reforms

Prisoners (or former prisoners) are rarely looked at as having the potential to contribute to the knowledge about prisons and to the movement of prison reforms. The history of the prison reform movement in India comprises various committees. However, reports by the committees could only recommend suggestions which were not mandated to be implemented by the states in their prison systems[2]. It was only through the judgments passed by various high courts and the Supreme Court that any relief to an individual prisoner or a reform in the prisons overall was binding on the states to implement. In 1966, the Supreme court stated in State of Maharashtra Vs Prabhakar Pandurang  judgment that the personal liberty of a detenu, as protected by fundamental rights enshrined in the Constitution, cannot be infringed except as laid down by rule of law. Further, since the 1970s, a new discourse bringing focus on prisoners’ rights was ushered in through the judgments of various high courts and the Supreme Court. Right to live with human dignity (Maneka  Gandhi v Union of India, Francis Coralie v Delhi Administration), right to speedy trial (Kadra Pahadiya v State of Bihar, Hussainara Khatoon v State of Bihar), right to fair trial, right to health and medical treatment (DBM Patnaik v State of Andhra Pradesh, and Sunil Batra v Delhi Administration), right to free legal aid (Hussainara Khatoon v State of Bihar and followed in the case of Khatn(II) v State of Bihar), right to the protection against any restraint like handcuffs, chains (Prem Shankar v Delhi Administration), protection against ill-treatment and torture in prison (Sheela Barse v State of Maharashtra), right to education, right to reasonable wages for work (Mohammad Giasuddin v State of AP, Dharambir v State of UP), right to have reasonable accommodation (TN Mathur v State of UP, SP Anand v State of MP; Relied on Sunil Batra v Delhi Administration) are some of the rights which the higher courts of the country have recognised.

Some of these landmark judgments on prison reforms and rights of prisoners originated from writings of the prisoners. Prisoners in their restrictive circumstances have written letters and telegrams reporting their human rights violations and identifying conditions inside prisons which needed to be reformed.

These writings of the prisoners, which are major contributions to prison reforms in India, remain unacknowledged.

Prem Shankar Shukla, an undertrial prisoner in Tihar Jail, New Delhi, sent the following telegram to the Supreme Court in 1979:

In spite of court order and directions of your Lordship in Sunil Batra v. Delhi Admn. handcuffs are forced on me and others. Admit writ of Habeas Corpus.

This telegram[3] was considered as “telegraphic ‘litany’ to the Supreme Court” resulting in a ruling declaring use of handcuffs as an exception which can only be used after stating reasonable reasons in the daily diary [4].

In the same year, Sunil Batra, a prisoner in Tihar Jail, New Delhi, also wrote a letter to a Supreme Court judge, reporting an incident of torture perpetrated on a fellow prisoner[5]. The judgment (Sunil Batra v Delhi Administration) mentions that “true technical and legal niceties” are not an impediment to the court and hence such “informal communication,” referring to the letter written by prisoner Sunil Batra, can be accepted in the Court as a habeas corpus writ. This judgment paved a path for accountability of prison authorities and transparency in prison activities[6].

Madhukar Bhagwan Jambhale was lodged in Dhule District Jail, when he sent a letter to Bombay High Court in 1983 complaining about his torture and ill-treatment at the hands of prison authorities[7]. Jambhale’s letter as an individual complaint was converted into a class action on behalf of all the convict prisoners imprisoned in Maharashtra jails. This judgment led to specifying the procedures to be followed for a grievance deposit box and visits of judges and lawyers to the prison. It also struck down undue censorship rules regarding a prisoners’ correspondence with the outside world, while making it a right of the prisoners to send their complaints in a letter to various authorities outside the jail.

Rama Murthy was lodged in Central Jail, Bengaluru when in 1984 he wrote a letter to the Supreme Court[8]. The judgment proceeded to give specific directions regarding nine major problems concerning prisons in India, and also reiterating the need for replacing the century-old Prisons Act, 1894 with a new law and framing of a new All India Jail Manual. The judgment concludes by saying:

The cognisance of the letter written by Rama Murthy … would not prove to be an exercise in futility, if what we have stated above is taken in all seriousness and our prisons become reform houses as well, in which case the social and economic costs of incarceration would become more worthwhile.”

A convict prisoner, name unknown, wrote about the subhuman conditions of the prison in a petition to the High Court of Kerala in 1989[9]. The letter of the convict led to the Kerala High Court to issue specific directions related to prison administration[10]. Another set of letters from several prisoners in 1988 were converted into a writ petition before Bombay High Court, which led to the court issuing time-bound directions regarding prison reforms to be followed by the prison administration (Inacio Manuel Miranda and Others v State).

Prisoners’ Writings Can Raise Social Consciousness

Landmark judgments towards prisoners were helped by inquiries made by appointed committees. However, change began with the writings from prisoners. In these writings, prisoners articulated how the general conditions of the prison on various aspects were inhuman and that the prison system was in turn triggering crime. They also questioned and highlighted the non-implementation of the previous directions issued to the prison officials by the courts.

A number of prisoners have written books about their experiences and understanding of prisons and the criminal justice system of India. For example, Ferreira’s book describes different aspects of prison life, the system of prison administration and more importantly the behaviour and motivations of prison staff behind their treatment towards prisoners, and the emotions and struggles of prisoners to cope with prison life. Ferreira also shares how these prisoners’ physical and mental health was affected by such lonely and suffocating cells. The book in very short and simple words adequately touches upon different issues—conditions of basic amenities in prison like bedding, clothes, food, medical facilities, facilities of meetings with family and lawyers, facilities of education and entertainment, etc. While Shaikh’s book describes how he was abducted and not arrested, subsequent illegal detention and third-degree torture that he had to endure, including forced narco-analysis, in the name of interrogation.

Prisoners write to communicate with their family, friends and lawyers. Prisoners write to complain about their conditions, or to request for facilities in prison. Prisoners write to share their experiences and thoughts in prison. Prisoners write to cope with the barren life inside prisons. Prisoners write to express themselves in a place where there is nobody to listen to them or to talk to them. Why should they be not allowed to write?  While the Supreme court has made it clear in several rulings that prisoners have as much right to express themselves as any other free citizen, but prison administrations hardly taken note of such rulings.

 

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