Face of the State in Tihar

COMMENTARY

Now, these special provisions, instead of trying to even out the inequalities based on class within this controlled context of prisons, in fact, further reinforce and legitimise these inequalities which are prevalent in society. These special provisions are clearly a violation of the fundamental right of equality before the law as enshrined in the Constitution. We need to note that the inclusion of class does not stand justifi ed in the same way as the separation of prisoners on grounds of sex, age, status of case, nature of crime, etc, does.

Arbitrary Impediments

There are certain important rights which are provided to all prisoners by the Delhi Prisons Act and Rules, such as access to medical care, right to educational facilities, right to maintain contact with the outside world, recourse to free legal aid, protection against torture, right to lodge complaints against prison officials, etc. On paper, these rights are available to all prisoners living inside the walls of Tihar. In practice, however, the rich have more probability of enjoying these rights than the poor, in a pattern not dissimilar to what we see in the society at large. The privileges that were made available to Kanimozhi, to Kalmadi, and A Raja are in theory available to all prisoners – Members of Parliament are not entitled to any special privilege according to the prison rules. But in practice, it is only a few, like these people, who enjoy these privileges.

The Prisons Act gives discretionary powers to the prison authorities to place restrictions on enjoyment of certain f acilities by prisoners, by creating different categories amongst them, for maintaining security and order within the prison. But the basis of the creation of such categories is highly arbitrary. PUDR’s investigations over a period of six months revealed several arbitrary and whim sical restrictions and gross violations.

Torture and Harassment

The first thing that comes to notice is the violation of rights against torture or any form of mental harassment. The Supreme Court in the Francis Coralie Mullin vs The Administrator, Union, 1981 stated that a prisoner has all the fundamental rights and other legal rights available to a free person, save those which cannot be enjoyed for reason of incarceration. It stated that any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity of the prisoner and would be violative of Articles 14 and 21 of the Constitution. The present arrangement of convicted inmates running the day-today affairs of the prison in Tihar (which itself is a violation of the United Nation’s Standard Minimum Rules for the Treatment of Prisoners guidelines about keeping undertrials and convicts in segregation), however, makes it impossible to safeguard the prisoners from physical and mental torture. The convicted prisoners in charge of maintaining discipline within the cells often resort to c orporal punishment, torture and harassment in order to carry out their duties. PUDR met a certain ex-prisoner, who showed us cuts and bruises on his body, gashes made by blades and other sharp instruments during his stay in Tihar. For average prisoners it is very diffi cult to complain against such torture.

Further, while the Prisons Act and Rules make no mention of the specifi c category of “high risk” prisoners, the terminology is well in use to describe those on trial or convicted of charges of abetting, planning or participating in terrorist activities, political convictions, or arrested under laws such as Unlawful Activities Prevention Act (UAPA). A majority of these so-called “high risk” prisoners are undertrials, and not convicts, and hence, according to the existing jurisprudence, should be presumed to be innocent and shall be treated as such. But given that they are tagged as “high risk” prisoners, within Tihar they do not enjoy the same facilities as other undertrials. For example, there are fewer sports and recreation facilities for high risk prisoners at present.

Rule 47 of the Delhi Prisons Rules (1988) states that prisoners will not be required to perform menial duties nor pay for having such duties done for them. This rule is however, as pointed out by Iftikhar Gilani, “fl exible enough to provide comforts for those with money and muscle”.

Contact with the Outside World

Second, coming to the right to maintain contact with the outside world, the enjoyment of this right too is made burdensome by the Tihar authorities. The Prison Manual allows each inmate to have two interviews per week with a maximum of three visitors per interview, within the designated place called the mulaqat jangla. During the interview, every prisoner is allowed to receive vegetarian food, fruits and clothes.

Despite this rule given in the Prison Manual, from 1 March 2011, the authorities are allowing only one visitor per u ndertrial and three visitors per convict. As a fallout of this new policy, now the families of undertrials coming from outside Delhi need to make arrangements for an extended stay in the city, so that each member has a mulaqat. There are other changes that have been introduced since March 2011. Every prisoner now has to submit a list of 8-10 names of persons (only relatives or friends) who would be coming for mulaqat. No other person apart from those named can be a mulaqatee. While till 2010 visitors could carry two varieties of fruits – bananas and apples, from 15 January 2011, these two have also been stopped.

Economic & Political Weekly

COMMENTARY

Restrictions have been placed on the kind of homecooked food that visitors can carry. No gravy items or dal is allowed. For a period of 15 days around the first two weeks of April 2011, the prison authorities stopped without any prior notice, green vegetables from being carried inside.

Right to Nutritious Food

This leads us to the third point of concern, the gross violation of the prisoners’ right to wholesome and nutritious food. The paragraph in the Delhi Prisons Rules mentioning the food for prisoners does not provide for fruits in the diet. And as restrictions are placed on fruits carried by mulaqatees, now the prisoners are forced to buy fruits and other such items from canteens located within the jail at hiked up prices for low quality things. The practice of purchasing things from canteens leaves those who cannot afford to purchase, to learn to do without them. An ex woman prisoner related to PUDR how she would barter and even sell some items sent in by her family to other prisoners, in order to earn some extra money/coupons to buy milk for her child who was with her in the jail.

Further, there is no list provided of which vegetables visitors may carry. As a result, much depends on the whims and fancies of those officers deputed at the checking counters. The prohibition on any non-vegetarian food to be carried by mulaqatees, when non-vegetarian food is not given inside as part of regular prison meals is also discriminatory. Interestingly, though there is no written explanation given for the ban on non-vegetarian food, we were given to understand that non-vegetarianism gives rise to “animal” instincts, and since the prison is also a reform house, vegetarianism indirectly helps inmates acquire suitable virtues!

Discretion of the Superintendent

Fourth, the enjoyment of the right to pursue vocational and educational opportunities, access to libraries and right to recreational facilities, are not made uniformly available for different groups of prisoners. While there is a system of open school and open university learning, access to these facilities are restricted for a large majority. This is refl ected in the recent announcement by the Tihar administration about job placements for inmates, as reported by The Indian Express (27 January 2012), where there were only 13 women out of 175 inmates who were eligible to apply. The access to courses and the division of labour are very much along the predictable lines of gendered roles and responsibilities, where women are taught embroidery, stitching, painting, crèche training, etc, while men have a more varied exposure. The access to libraries within the jail, and other books and magazines is also completely dependent on the discretion of the superintendent.

Another crucial right that is denied actively to all prisoners in Tihar is the right to receive wages as per the minimum wages rules, for labour undertaken inside the jail. Tihar has several small units or factories as they call them, which are involved in manufacturing products and artefacts for use in jail and sale outside. These include the prison bakery, candle-making unit, stitching, carpentry, nursery, etc. The rates of the wages paid as per information provided on the Tihar website are/appear-to-be below the standard minimum wages announced by both the central and the Delhi governments.

Trials and Tribulations

The mental agony and physical torture, poor medical facilities and unhealthy condition of barracks, poor and insuffi cient food, whimsical restrictions on communication with the outside world, condemnation of undertrials who are still innocent in the eyes of laws, and l abour sold for almost nothing in a condition of bondage, certainly do not portray the image of a liberal democratic state concerned about and existent for the cause of its citizens. If prison houses are places where people are expected to reform themselves, then they should be provided a congenial and healthy atmosphere devoid of contempt, corruption, torture, injustices and inequality.

Perhaps it is time to remind ourselves that the fact that a person is imprisoned does not mean that s/he ceases to be a “person”. Any prison regulation or punishment which is sought to be imposed in addition to those resulting from the sentence of court, must be tested by the procedural safeguards u nder Article 21 which involves “fairness” and “natural justice” (D D Basu, Commentary on the Constitution of India, Vol 3, p 3205).