Prison is an opaque institution with a majority of its inmates being undertrial prisoners, which means that no one really knows whether most of them have committed any crime at all. When we know that they belong to extremely marginalised and deprived sections of society, shunned into confinement and forbidden from their right to liberty, it makes us wonder whether the much-touted tilt of our Constitution to the disadvantaged has helped them in reality.
Justice V.N. Sinha, one of the senior-most judges of the Patna High Court and Executive Chairman of the Bihar State Legal Services Authority (BSLSA), commissioned me to visit all the 58 prisons in Bihar. My mandate was to enter every ward of each prison and speak to every prisoner to see the conditions they were living under, hear from them about their specific problems, and directly report my finding to Justice Sinha and the BSLSA. For over six months, I travelled across the State and spoke to a total of 30,070 inmates (as on date of inspection). I compiled 58 interim reports on each of the prisons in the State. My final report, titled “Prisons of Bihar: Status Report-2015”, was released on November 15.
The most appalling finding recorded in the report is the near complete absence of medical facilities in the prisons. Owing to a dearth of permanent doctors, doctors on deputation from district hospitals visit prisons whenever required but not more than once a week. Therefore, no doctor is on call to handle a medical emergency. Hardly any prison has basic test kits or any proper medicine storage facility. Medical screening of the prisoner, an essential part of the legal procedure, is conducted as an empty formality in the absence of prison doctors. In the absence of medical test kits, prisoners are asked whether they have certain diseases and their verbal response is recorded as an official document, irrespective of their limited knowledge of the disease they may be afflicted with.
Women prisoners are the worst affected as there are only a handful of women doctors serving around five prisons. So, even if a male doctor occasionally visits a prison, female prisoners are hesitant to see them. This has resulted in extreme situations where some women have even given birth inside prison without any medical attention.
Moreover, during a health crisis, the procedure to send a prisoner to the district hospital is complicated and lengthy, leading to the missing out on the golden period, often resulting in loss of life. In prison, owing to negligence and delay, even a minor ailment can turn fatal. However, even major medical conditions fail to receive the required medical attention. One such case was encountered in the Beur Central Prison, where the undertrial prisoner Ramnath Mahato was completely paralysed. The prison administration could not provide him medical assistance. He was left to the mercy of the other inmates, who tried to nurse him informally. The inmates taking care of him informed the authorities that Mahato could neither move nor hear a word and that he was nearly in a state of coma.
Similar was the case of the undertrial Upender Kumar, who was in the prison for 11 days. He was lying unconscious, was bleeding and had bedsores, yet the Patna Medical College Hospital did not accept him for treatment. He was kept on a stretcher, and every day the prison administration would send him to the district hospital and the latter would send him back on the grounds that his court documents were not clear.
More shocking, there are no arrangements to separate prisoners suffering from the human immunodeficiency virus (HIV) from those suffering from tuberculosis; they are kept in the same ward. If this is the condition in the Beur Central Prison, which is designated as a Model Prison, one can only shudder to imagine the kind of medical facilities provided in the other 57 prisons.
Bias against terror accused Another shocking aspect of the prison system in Bihar is that undertrial prisoners accused of terrorism-related offences are given extrajudicial punishments. The six persons charged in connection with the Gandhi Maidan blast during the election rally of Narendra Modi (the Bharatiya Janata Party’s prime ministerial candidate then) in Patna in 2013, and lodged in the Beur prison, are subjected to extrajudicial punishments in the form of denial of entitlements such as basic medical facilities, family visits and access to copies of their case papers, including charge sheets. The prison administration beefed up their security after the National Investigation Agency took charge of the blast case. The six accused—Faqruddin, Umar Siddique, Md. Mojibullah Ansari, Md. Firoz Aslam, Azharuddin Qureshi and Haider Ali—have been kept in a separate ward with extra security.
During an interaction with them, it was found that their lawyers do not visit them either in court or in prison. They suffer a double jeopardy: bearing the burden of the terror tag and being extremely poor, which limits their capacity to hire a good lawyer. No lawyer wants to take up their cases.
No court order restrained the jail authorities from serving them a copy of their charge sheet or prohibited their lawyer from meeting them. Neither did the Inspector General of Prisons issue any such internal order. Haider Ali is suffering from a spinal injury, but he was not given medical treatment purely for security reasons, the prison staff explained. On reporting this particular case to the BSLSA, immediate action was taken to provide Hyder Ali with all necessities permissible under the law.
Forced Labour, a new form of slavery Undertrials were found working in the kitchens of almost all the prisons of the State without remuneration. Kitchen labour is hard labour and can only be imposed on prisoners sentenced to rigorous imprisonment. According to the Supreme Court’s judgment in State of Gujarat vs Hon’ble High Court of Gujarat (1998), the superintendent and the staff of the prison who use undertrials as labourers are liable to be prosecuted for the offence of unlawful compulsory labour under Section 374 of the Indian Penal Code (IPC). This provision states that whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment for a term which may extend up to one year, or with a fine, or with both.
Forced labour is a contemporary form of slavery; it was found in full practice in the prisons of Bihar. Some prison staff claimed that they were not aware of the IPC provisions prohibiting forced labour. Some even said that they had no option but to make undertrials work in the kitchen as there were not enough convicted prisoners to do the job. Even in such instances, it can be argued that undertrials who are made to work must be remunerated and under no circumstances can bonded labour be accepted as the norm. Also, ignorance of the law cannot be a justification for breaking the law.
According to the prison rules, if prisoners proactively and willingly indulge in prison work, then labour can be taken from them. However, one wonders how working daily under extreme conditions in the kitchen, from dawn to dusk, seven days a week, can be a labour of choice.
The usual practice observed was that the prison staff allotted duties to prisoners. Usually, no inmate would dare to refuse work allotted by the prison administration as the completion of an allotted task would mean good conduct on the part of the prisoner and refusing to do it would result in victimisation. Keeping the dignity of labour in mind, there is a case for reassessing prisoners’ wages at the earliest.
Punishments, a scar on prison reforms Prison punishments are awarded under the discretionary powers provided by the Prison Manual Rules without supervision by an appellate body. This makes the powers absolute in nature, especially since it is implemented within the walls of the prison, behind closed doors. Such powers, often in misguided hands and used at will, are extrajudicial in nature. The prison administration justifies these as essential powers used for the purpose of disciplining an unruly inmate. Prison is judicial custody; therefore, allowing extrajudicial punishment powers to a non-judicial member is problematic in principle. Also, several disciplinary measures such as curtailing certain privileges of an inmate have proven to more effective.
There should be no scope for medieval, inhuman, degrading, cruel forms of punishment within an institution of a democratic state, especially because prisons are now considered to be correctional homes where a prisoner is lodged with the objective of reform, rehabilitation and correction, leaving no room or scope for harsh punishment. All the States have their own set of prison punishments. The problematic sections relating to prison punishment provided in the Bihar Prison Manual Rules-2012 need to be revisited at the earliest.
Under Rule 395 of the manual, which deals with minor prison punishments, handcuffing is allowed. It also allows imposition of some irksome or severe form of labour for 15 days. The term irksome leaves scope for abuse and creates the ground for imposition of degrading work such as manual scavenging. Cellular and separate confinement for up to 30 days is allowed. Thirty days is too long a period for a person to remain punished within the confines of an opaque institution without judicial intervention.
Under Rule 396 dealing with major punishments, hard labour for a period of a week is allowed. The jail superintendent can forfeit the earned remission of a period exceeding 15 days, and it has no upper cap. In the case of Ashok Kr. Singh, a life convict in the Biharsharif Jail (File No. BHRC/Comp.943/12), the superintendent had forfeited remission of 665 days. After hearing the case, the Bihar Human Rights Commission (BHRC) concluded that such arbitrary forfeiture cannot be accepted, especially in the absence of an appellate body. The prison administration assured the BHRC that it would look into the particular rule and recommend necessary changes, but the BHRC has not been apprised of any follow-up action.
Among the major punishments prescribed by the rule are separate confinement for up to 30 days and handcuffing for up to 15 days. The denial of parole facility for up to a year ruins the scope of reform as it destroys the prisoner’s hope. For a prisoner, parole is a hard-earned privilege based on his/her behaviour and forfeiture of such an essential correctional measure without application of a judicial mind leaves scope for abuse.
Lastly, in exceptional circumstances a prisoner can be put into bar fetters for a period of 30 days. This form of punishment is absolutely unlawful.
Open Prisons Buxar has the only open prison in Bihar. This special type of prison has special types of problems. Here, prisoners are allowed to go out during the daytime, and they have to return by 7 p.m. Prisoners are kept in an open prison during the last leg of their imprisonment in order to initiate the process of their reintegration into society. In this period, the prison administration stops providing the inmates some facilities, expecting them to become independent.
The common practice is to send aged prisoners to stay with their families, but this has led to problems of adjustment, especially in the case of prisoners who have lost touch with their families owing to prolonged imprisonment.
Aged prisoners have age-related health issues. There is no formal mechanism for the care and treatment of aged prisoners. In a closed prison, they are taken care of by other prisoners. Some prisoners in closed prisons see serving the aged inmates as a penance; some prisoners abandoned by their families find solace in caring for the aged inmates. In an open prison, it is difficult to get prisoners to volunteer to serve as caregivers. Prisoners earn their stay in an open prison through their good conduct during their stay in a closed prison. Once they are sent to an open prison, it would be unfair to send aged prisoners back to a closed prison.
Aged prisoners need to be cared for and protected against neglect. The State Welfare Department should come forward to arrange for their care and protection. A viable solution would be to open old-age homes for aged prisoners within the premises of open and closed prisons. Such homes can provide employment to younger inmates of the open prison who are finding it difficult to secure a job after their release because of the stigma of the prisoner tag.
Being an opaque institution, prisons arouse curiosity and are subjects of conjured-up notions. To society at large, there is no difference between a remand prisoner, an undertrial prisoner and a convicted prisoner. Even acquittal in a case does take away the stigma attached to a prisoner. The prisoner, no matter of what category, is a dreaded criminal whose existence is loathed. And every act of cruelty perpetrated against a prisoner is acceptable in popular perception.
Behind bars, beyond justice
The prime objective of my visits to the prisons in the State was to find out the problems relating to legal aid. Considering the fact that a majority of prisoners come from humble backgrounds where legal literacy is non-existent, putting the onus of finding legal aid on the prisoner is unfair. Most prisoners see legal aid as a favour and not as a matter of right, and they hesitate to seek legal assistance even when in need.
Prisoners have little or no access to justice since there is no mechanism for a prisoner to meet his lawyer, which implies that in practice prisoners have no say in their own defence. The right to a fair trial is ensured through the right to counsel from the time of arrest. But a prisoner having a lawyer is not enough. The accused needs to meet the lawyer and discuss details of the case because it is only the accused who knows best what to say in his defence because only he knows the nitty-gritty of the incident that led to his arrest. In practice, legal defence appears to be like the game of whisper, where what is whispered into the ears of a person in a circle turns out to be radically different when it reaches his ears again. Something very similar happens when prisoners do not get access to lawyers.
There are several provisions in the law that facilitate access to justice. Section 167 of the Code of Criminal Procedure (CrPC) is of prime importance in this regard. Under this section, an accused has to be physically produced before the magistrate within 24 hours of his/her arrest. The law also lays down that a prisoner be produced in the court every 14 days and that the lawyer must visit the prisoner in prison. It is during first production that a magistrate interacts with the accused and hears from him/her of any grievance and checks the medical report to ascertain that the accused has not been subjected to torture or ill treatment. In the case of a cognisable offence, the magistrate is to check whether the grounds of arrest furnished by the police are sufficient and then decide on remand to judicial custody. It is at this stage that the magistrate is to inform the accused of his/her right to free and compulsory legal aid.
Physical Production However, prisoner narratives on the first physical production reveal that the accused is taken from the police station to the court, made to wait in the court hazat through the day and is brought to prison by the end of the day. Some prisoners claimed that though they were taken inside courtrooms they never got to speak to the magistrate. A handful of prisoners claimed that they were made to stand before the magistrate, yet there was not even minimal interaction with the magistrate. Mostly, only the prisoners who surrendered in the court in the presence of their lawyer had some interaction with the magistrates. Thus, in practice, Section 167 of the CrPC is not complied with, and first production results in mechanical remand, which is absolutely contrary to what it is meant to be.
Several reasons can be cited for non-production and non-compliance with Section 167. The prime reason for this is courts being overburdened and understaffed. There are not enough guards to escort the accused from the court hazat to the courtroom. Some courtrooms do not have enough space for the accused to stand before the magistrate. But logistic or administrative limitations, though extremely valid, cannot be a ground for the violation of the rights of the accused.
Access to lawyers A criminal trial is a long and an expensive process. Considering the humble backgrounds prisoners come from, it is obvious that in most cases they cannot afford a lawyer. The family struggles to raise the fees to hire a lawyer. Even if a lawyer is obtained at the initial stage, it cannot be assumed that the prisoner will be able to afford to retain the lawyer throughout the lengthy process of the trial. In some cases where prisoners claimed that they did not have a lawyer, a private lawyer’s name was found in the vakalatnama . (Vakalatnama is a court document through which the accused certifies to the court that he has given his lawyer the power to represent him.)
If a prisoner is a man, especially an earning member of the family, the family goes to great lengths to obtain bail at the initial stage. Families sell land, house or jewellery and take huge loans at exorbitant rates of interest to obtain bail, but gradually the money drains out and the private lawyer goes beyond the reach of the prisoner. The family becomes extremely vulnerable. Woman prisoners are the worst hit since the family gives up on them sooner than it would in the case of an imprisoned male, earning member.
Even if the prisoner has a private lawyer and the law requires that the lawyer is to meet him in prison, hardly any lawyer goes to meet his client in prison, primarily because of the meagre fees a poor prisoner can afford. Even if the lawyer does visit the prison, there exists no mechanism to facilitate his meeting with his client in privacy for a reasonable amount of time to discuss the case details. The stringent prison manual rules, which limit the time for interaction with prisoners, and the absence of a separate meeting space in the prison are other hurdles.
Similarly, the lawyer is required to take permission from the court to meet his client in the court lock-up, a lengthy process which most lawyers choose to avoid.
Usually, the visitors’ space in a prison is a small area where visitors stand behind a net at a considerable distance from the prisoners, who stand inside the prison. Mulakati , or prisoner meeting with visitors, does not happen in an orderly manner owing to time and space constraints. Inmates and visitors talk to one another simultaneously, usually shouting from a distance. What happens mostly is lip-reading or guessing what is being communicated. In this chaos, expecting a prisoner to successfully discuss intricate details of his case is a fallacy. Also, lawyers and visitors barely get 15 to 20 minutes to speak to prisoners from a distance.
Legal Aid Clinics Empanelled legal aid lawyers are allowed inside prisons to operate from the legal aid clinics inside a prison. They are the only lawyers who have direct access to prisoners. But prisoners are not aware of their right to free and compulsory legal aid and see legal aid as a favour. Most prisoners thus prefer to go without legal aid. Again, legal aid lawyers are seen by some prisoners as a part of the court. Therefore, they hesitate to reveal details of the case to empanelled lawyers. Also, prisoners are sceptical about the competence and accountability of the legal aid lawyers. “If prisoners do not approach us, what can we do?” say legal aid lawyers. “We can take up cases pro bono , but how are we to know that a certain prisoner requires lawyer?” Sustained sensitisation of legal aid lawyers and prisoners is a possible remedy to this problem.
Women prisoners
Legal aid clinics face their biggest challenge when it comes to providing services to woman prisoners. Because their families give up on them sooner rather than later, women prisoners are vulnerable and emotionally rattled. I came across a woman prisoner who became hysterical and begged and pleaded with me to help bring her two-year-old daughter to stay with her in prison. The prisoner cried that there was no one to feed the child at home. The prison administration informed me that the prisoner had not swallowed a morsel of food for 11 days. Woman prisoners are allowed to keep their children under the age of six with them. Her case papers revealed that her husband had brought home another woman and asked her to leave. Helpless, she tried to commit suicide by consuming poison and feeding it to her child. She lost consciousness. Her child died and she was accused of murder. She had no lawyer to defend her. When I urged her to take the assistance of a legal aid lawyer, she said she could not take it as her guardians, implying parents, would find a lawyer.
The prison staff said that her parents had been informed of her condition, but they would not come; but she refused to believe that her parents do not want to meet her in prison or that her child was dead. She was in shock, and there was no mechanism available in the prison to provide her with psychiatric care. Also, the legal aid lawyers were helpless since she refused to take their assistance.
She was not an exception. During my visits I met 1,083 woman prisoners. Hardly any of them could name their lawyer. Nor were they aware of the stage of the case or the sections under which they were framed. Most of them told me that their “guardians” know best about their cases. Women prisoners are heavily dependent on their families or on well-wishers in making crucial decisions. The guardians in most instances are the male members of the family. Women prisoners hesitate to ask for legal aid lawyers even if their families have not visited them in months. For them, it is an endless wait.
Personal Observation The institution of legal aid needs to aggressively ensure access to justice and go beyond providing legal aid only when asked for. This initiative of delivering justice does not end with framing a law. The solution lies in implementing it. The onus of providing justice remains on the institution of justice; to shift the onus of access to justice on prisoners is to put the cart before the horse.
Blind conformity to the law is what is demanded of the prisoner. “Justice” is equated with “punishment” and the punishment is not proportionate to the crime. When the prisoner fails to attract the attention of a legal representative, she/he is subjected to prolonged imprisonment. The shock of bearing the burden of the criminal tag and the silence imposed by reclusion from society are not two isolated phenomena. They represent the contradiction between the underlying principle of justice and the law in practice, turning the aim of justice into a means of punishment and not reformation.
Non-compliance with Section 167 of the CrPC and mechanical remand is justified as a norm, which is a slur on the criminal justice system. A person is denied access to justice, branded a criminal, and pushed behind bars. The prison then finds its prey and closes in on its captive by tracking his every movement. Imprisonment turns into captivity through rigorous control of space and time. With no access to justice, the prisoner is rendered voiceless in the criminal justice system and the very essence of criminal jurisprudence in a democracy is damaged and the idea of justice is hurt.
Bihar is said to be a microcosm of the plural and composite culture of India. The report on the status of prisons in Bihar should be seen as an eye-opener and a laboratory specimen for the larger reforms that India’s prisons require so that our prison population is able to live with dignity.
Smita Chakraburtty is an activist and a researcher who has been documenting cases of custodial violence and working on prisoner rights. Formerly a teacher of human rights at the Loreto College, Kolkata, she now works independently. To write this article, she has drawn extensively from “Prisons of Bihar: Status Report-2015”, authored by her and submitted to the Bihar State Legal Services Authority.
