‘Prison inspection can open a can of worms’

Interview with Justice V.N. Sinha, who commissioned the Bihar prison inspection.

Justice (retd) V.N. Sinha of Patna high Court.

Justice Vijayeshwar Narayan Sinha was the senior-most judge (after the Acting Chief Justice Iqbal Ahmed Ansari) of the Patna High Court when he retired on November 15. He enrolled himself as an advocate in 1979 and practised at the Patna High Court for over 23 years in civil, criminal, service and taxation matters. He specialised in Constitutional Law. In due course he became the Government Pleader and was appointed as a judge of the High Court in 2004.

It was when he became the Executive Chairman of the Bihar State Legal Services Authority (BSLSA) in July 2014 that Justice Sinha found an opportunity to fulfil certain entitlements of prisoners. He was clear that prisoners were entitled to legal services and access to justice as envisaged in the Legal Services Authorities Act, 1987. He understood “access to justice” to mean that the BSLSA was required to at least hear the prisoners’ voice in person. A prisoner is unlikely to ventilate his or her grievances to a judge directly in view of the limited time available to a judge in court. Also, the respect and awe a judge evokes are likely to dissuade a prisoner from expressing his/her views candidly. Justice Sinha, therefore, thought it appropriate to commission an independent inspection of Bihar’s prisons by Smita Chakraburtty, a human rights activist. Excerpts from an interview he gave Frontline:

What is the significance of “Prisons of Bihar: Status Report”?

It is important for a court to know whether its proceedings have been conducted as per the provisions of the Code of Criminal Procedure [CrPC], which entails giving effect to Articles 21 and 22 of the Constitution to ensure fair trial. The question of fair trial will arise from day one, that is, the date of production of the accused [before the court]. The date of production appears to be a casual thing. Once a person is arrested, he is remanded to either police custody or judicial custody. But at that time there are formalities that are required to be followed by the Presiding Officer of the court where the accused has been produced. And if those formalities are not done and things move, then whatever injustice was done to him at that stage will never be redeemed.

We can know this only when we undertake such a study. Suppose a prisoner has suffered an injury, either in the police lock-up or while in transit, and if this is not noticed at the time of the first production, then that stage is gone.

You commissioned an independent human rights activist to undertake this study. Is that unusual?

I thought it proper to undertake such a study because while I was an inspecting judge I always wanted to interact with every individual prisoner. For the inspecting judge or for a district judge, who visits prisons as part of his or her official duties, it is not possible to know about each and every prisoner.

So, somebody has to undertake this responsibility. And whatever has been accomplished in this report, the idea is that it should be continued further. Otherwise, we know the position on the date of inspection, but what happens thereafter may be of equal concern in terms of human rights violations, such as denial of police papers to undertrial prisoners.

A few such cases were reported to Smita Chakraburtty. We then issued instructions to provide papers. She interviewed 30,070 prisoners. In most cases, there are no violations. If there is a violation even in one case, it is a serious one for that person. We have to ensure that the system is flawless. For that, such inspections have to be a regular feature.

What is the relevance of this study for the nation as a whole?

A similar inspection is required in every State. I am told that the inspection I had commissioned is the first of its kind in the entire State and in the country.

How is your report different from the Justice Mulla Committee Report (1983) on prison reforms?

That was an exhaustive report focussing on reforms, especially on the physical conditions under which prisoners are incarcerated. It was way advanced for its time. Unfortunately, its recommendations are yet to be implemented. The current report is not just about the physical conditions under which prisoners are detained but also about their legal status and the problems they face in having access to justice. Since the inspection was commissioned by the Legal Services Authority, we were able to make prisoners’ access to courts and lawyers our primary concern.

Juvenile JusticeWhat are the major findings of the report?

There are 700 pages of interim reports, 58 of them, on the State’s 58 prisons. The final report, which is about 80 pages, is the analysis of the findings in these 58 reports. The report finds that 476 prisoners claimed to be juveniles. Juveniles are not supposed to be in prison. So the district courts took immediate action to ascertain their actual age and do the needful. If somebody appeared to be a juvenile, then the court stepped in. If he was a borderline case, he was subjected to medical tests. He was first asked to produce some certificates, and if the certificates were not there, medical tests were done. The criteria prescribed under the Juvenile Justice Act were taken care of. Some prisoners were not even aware that they were underage. Smita Chakraburtty could identify such cases in the prison wards she visited and brought this to our notice. We reported such cases to the District Legal Services Authority concerned, which in turn asked the Prison Superintendent concerned to verify the claims and take action if found true.

Is it a case of negligence that juveniles were kept in prisons?

A juvenile prisoner is required to be in a remand home. In Bihar, only 10 divisional towns have remand homes. But there are Juvenile Justice Boards in every district headquarters. Therefore, parents of the juvenile accused, if they happen to reside in towns where there are no remand homes, manipulate the police into indicating that the accused is not a juvenile in order to ensure that he/she is not shifted away from his/her hometown. The magistrate should check this. Whatever be the reason, children cannot be kept in prison under any circumstances. The Presiding Officer in the court must keep a tab on such violations at the time of first production. If the child is produced before the magistrate, the magistrate will be able to identify whether the accused is a juvenile or an adult.

The seriousness and attention required at the first and subsequent productions of the accused before the magistrate were not given in a few cases. Every run-of-the-mill case does not require that kind of attention. A few cases require special attention, and one will never know which is that special case. Therefore, at least the minimum concentration must be there in every case.

But the judge-population ratio does not permit the judge to do it. At the stage of first production, if the judge asks the accused politely, he will say everything. The judge is unable to give that kind of attention because of work pressure. If there are 20 productions of the accused before a judge in a day, there may be one case in a month where the judge’s absolute attention is necessary. But one does not know which is that case.

So you have to pay minimum attention to every case in order to identify the case that would require absolute attention. At the time of first production of the accused before him within 24 hours of the arrest, the judge does not know whether the accused is a criminal or not. He has to ask some basic questions like whether he has had food, whether the accused’s family has been informed, and check the grounds of arrest and the medical examination conducted on the accused. And it is also during the first production that the magistrate has to inquire if the accused has a lawyer and inform the accused of his right to legal aid.

These are the safety measures against custodial torture as the accused is most likely to complain against it if he suffered at the hands of the police. In judicial custody, the judge is the guardian of the accused. The welfare of the accused is the responsibility of the magistrate. That is detailed in Section 167 of the CrPC.

The first production of the accused takes place along with a police party. If the accused was tortured by the police, he would not open up in the presence of the police. Unless the magistrate asks the police to leave the courtroom and then puts the questions to the accused, and tells him not to fear as the police cannot touch him in jail, the accused is not likely to complain against torture. Now, where is the time for all this? There is serious understaffing in the judiciary. For 10 lakh population, there are hardly 15 judges. The ideal figure will depend on how developed your society is.

What is the other significant aspect of the “Prisons of Bihar” report?

Access to justice. Once an accused is brought to jail, he needs a lawyer for legal representation. Article 39A of the Constitution says that “the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”.

But the prison inspections show that there is no mechanism for a prisoner to meet his lawyer. At the time of first production, it is the duty of the magistrate to ask the accused whether he has a lawyer and offer him a lawyer if he does not have one. The magistrate should then ask for one lawyer from the legal aid panel to be assigned to that accused.

What happens if that stage is overlooked?

After the first production, the remand is for 14 days. Once this remand is over, the magistrate will get another opportunity to interact with the accused and find out about the lawyer. The onus is on the judicial officer to ask whether the accused has or needs a lawyer. In the judgment upholding the conviction and sentencing of the Mumbai terror convict Ajmal Kasab, the Supreme Court said that if the magistrate did not provide a lawyer to the accused then he may be proceeded against. Such a strong command from the Supreme Court is nothing but law. For this to happen, the accused has to be brought before the magistrate and not produced from a distance, which would make him inaudible.

Ninety per cent of the prisoners come from humble backgrounds; they do not have the money to ensure that the lawyer spends his time to get special permission from the magistrate to meet his client. If the lawyer, on his own, wants to meet his client because he is concerned with human rights, then also there is no mechanism to facilitate it.

A good lawyer cannot spend the whole day to meet just one client in prison and that too for 15 minutes. Legal aid lawyers are supposed to visit prisons frequently, but the legal aid clinic inside the jail has to follow a certain discipline and formalities, which make interaction difficult. Non-legal aid lawyers cannot enter the prison. A private lawyer, as opposed to a legal aid lawyer, can visit the prisoner-client only as a visitor. To minimise this problem, a lawyer should be allowed to interact with his prisoner-client at the time of his court appearance. But that may not be adequate. Prison inspection may open a can of worms, but it is the most important thing. If someone is likely to be sent to the gallows and not given access to justice, is that democracy and the rule of law?

What about the debate on the death sentence and life imprisonment without remission? Can the latter form of punishment be an alternative to the former?

No court, in my opinion, can restrain a government from exercising its remission power. When the Supreme Court issued a stay on that remission power in Sriharan vs Union of India in 2014 until a particular date, I had ruled that the stay could not operate beyond that date if a Constitution Bench had not yet been constituted to hear the matter. A statutory power cannot be stayed. The State government did not use its remission power despite my ruling that the stay did not operate beyond that date. But no one challenged my order.

Subsequently, my ruling was brought to the attention of the Supreme Court, which constituted a Constitution Bench to hear the matter. The Constitution Bench vindicated my stand and vacated the stay. Remission can be earned only if the accused qualifies as per the safeguards mentioned in the statute as well as the policy. So it is not a matter of right that anybody may get it. If the object is to reform, and if the accused has reformed himself during his stay in the prison for a long period, 14 years in actual, then it is justified to grant remission. The prisoner’s behaviour has to justify [the grant of remission]. If the prison authorities discharge their statutory functions faithfully, then the object of remission may be served.

Are there any instances from the report that necessitated your intervention?

I will point out two. In the first, the Gandhi Maidan blasts case, the accused were not provided copies of the charge sheets because the National Investigation Agency had allegedly instructed the prison superintendent to be cautious and not provide them with any pen or paper. So the prison administration refrained from providing even a copy of the charge sheet that an accused is entitled to. When this was brought to my notice, I intervened and ensured that the copies were provided. In the case of a custodial rape, the charge sheets were not filed for two years. I will not comment on the merits of the case, but two years’ delay in submitting the charge sheet is unjustified.

In a matter of an alleged custodial rape, both the victim and the accused are known and both are well within access. She was the lone prisoner in that ward; there were no women wardens in view of the paucity of staff. She is a convict prisoner. Her conviction is in the appeal stage.

I have been part of the establishment. My intention is not to blacken the establishment and tread over subjects that are admitted positions, but to improve things.