Manjula Shetye, 40, was a few months from being released when she was killed, allegedly by five guards and the jailor, in Mumbai’s Byculla prison on June 23. Her murder imparts urgency to an old question: how long will we ignore the brutality and the poor living conditions in India’s prisons?
Closed institutions engender impunity. This is evident in the prevalence, and widespread acceptance, of custodial torture. Twice as many inmates die by suicide in our jails today than 15 years ago. In 2015 alone, at least 77 of the 1,584 people who died in jails took their own lives. There are three times more mentally ill prisoners than 15 years ago. There is only one psychologist for every 23,000 prisoners. Small wonder then that the suicide rate is one and a half times higher in jails than outside.
About the only time attention is paid to risks to life during incarceration is when an affluent or influential inmate dies. When Rajan Pillai, the “Biscuit Baron”, died in Delhi’s Tihar Jail for lack of treatment in 1995, his wife created a row that forced the setting up of an inquiry commission. Its recommendations led to an increase in the number of doctors at Tihar, but not much else.
Shetye’s death was caused by deliberate violence – a fairly common feature of Indian prisons, not least because the jail authorities responsible for it are scarcely held accountable.
What will it take for the state to legislate a strong law prohibiting torture and opening up prisons to scrutiny?
Failing the test
India signed the United Nations Convention against Torture in 1997. Signing, however, only indicates the country’s intention to meet the obligations set out in the treaty. Ratification, on the other hand, entails bringing in laws and mechanisms to fulfil the commitments. India has not ratified the treaty yet.
Indeed, for two decades since signing the treaty, India has done little to enact a specific law against torture committed by people acting in official capacity. A weak Prevention of Torture Bill was introduced in 2010 but it lapsed with the dissolution of 15th Lok Sabha in 2014. Since then, the Indian state has either denied the existence of torture in the country or defended its resistance to enacting a law by claiming there are sufficient provisions in the domestic legal framework to prohibit and penalise torture. But when examining places of incarceration, we see that on the ground, there are no such protections.
Illustratively, the Criminal Procedure Code lays down that a judicial magistrate must be informed every time there is a death in prison. But data for 2016 submitted to the Bombay High Court shows this was done in only about half the cases. Only half of the complaints from human rights commissions on prison-related matters are disposed of by states across the country. The monitoring required by prison rules is a scandal. A 2016 report by the Commonwealth Human Rights Initiative covering 1,387 jails across India found that merely five of them were monitored as required by the law and only four states had appointed independent visitors in all their jails. The Supreme Court mandated Undertrial Review Committees – another attempt at monitoring that is now in its second year – are unevenly limping into action.
Taking a hard look
If transparency is key to reducing the risk of custodial torture, the Indian government seems determined to go further in the opposite direction. As recently as 2015, it issued an advisory to states to put up even more barriers to prison access – prior permission, depositing “Rs 1 lakh in the name of the superintendent of the concerned jail” before entry, excessive scrutiny of all recorded or documented material with the possibility of “deletion of objectionable portion”, confiscation of equipment and material from the visitor if the jailor does not like what he sees.
The Byculla murder, however, makes it clear that letting in more visitors – friends, social welfare workers, lawyers, judges – rather than few is critical to improving prison conditions. In fact, the beatings and perhaps even Shetye’s death would have gone unheard if not for rioting by her fellow inmates. In a locked down world so little is supervised or scrutinised that there is no other way for prisoners to voice their concerns. It is only incidents like in Byculla jail that force those in power to even begin to listen.
Perhaps it is because poor living conditions, overcrowding, acute manpower shortages and minimal safety against harm in prisons are such an abiding embarrassment for the Indian government that it sees ratification of the Convention against Torture as such a threat.
The treaty commits the country to transparency and accountability. It calls for establishing a dedicated and comprehensive inspection regime with a three-fold task: preventing torture, penalising the perpetrator and compensating the victim.
The specific law that ratifying the convention entails will mandate a systematic review of colonial rules, methods, practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment. It will also mean that exclusive mechanisms of redress and compensation will be set up for the victim besides institutions such as the Board of Visitors.
Such a law will also focus on educating and training officials involved in the deprivation of liberty because implementation of the convention requires clear reorientation away from present practices. In addition, ratification of the Optional Protocol to the Convention would mean unrestricted and regular access to independent and qualified persons to places of detention for inspection. This is also critical.
By passing a domestic law against torture, India will send a strong message to its law enforcement agencies that torture is not acceptable and justice cannot be evaded. Many people may not know that extradition to India from various countries of 110 fugitives – accused of offences such as forgery, cheating, criminal conspiracy and sexual abuse of children – is pending because of poor prison conditions here. Thus, enacting a law against torture would be an affirmation of India’s commitment to its democratic ideals and values.
Mrinal Sharma is Programme Officer, Prison Reforms Unit, Commonwealth Human Rights Initiative.