On the morning of May 10, I woke up to the news of the death of Mahavir Narwal, father of Delhi student activist Natasha Narwal who has been in prison for over a year now on charges under the Unlawful Activities (Prevention) Act. Mahavir Narwal himself was a known activist and had been jailed during Emergency. He had tested positive for Covid-19 and had passed away the previous evening in a hospital in Rohtak.
His daughter had moved to the court seeking bail so that she could take care of her hospitalised father since the only other member of their family, her brother, was also Covid positive and in isolation. Their mother had passed away some years ago. By the time the matter was decided by the Delhi High Court and she was granted interim bail, her father had already died. In the order, the court noted that the hospital in Rohtak was “waiting for the applicant to receive the body”. The order in her regular bail application had been pending since April 27. She returned to prison on Sunday, May 30.
Every prisoner, even the one convicted for the most heinous offence, has a human right to communicate with their families. In my opinion, this includes the right to be informed about the health of the family in case of emergency and a right to be with them in case of serious illness. A prisoner loses his liberty of movement but his other human rights are not altogether abrogated merely on incarceration as has been held in many of the cases by the Supreme Court.
Natasha Narwal, like the majority of prisoners in Indian jails, is still awaiting trial, but was denied this right. A daughter could not be ensured her right to take care of her seriously ill father in his last moments.
The walking dead
Seeing the images of Natasha Narwal and her father brought back memories of my own ordeal. On the dark day of August 2, 2001, my father, Mohammad Hashim Khan died after an accident while I was in prison. I was not informed of his death till my court hearing almost a week later. Standing in a witness box in the Tis Hazari Court, handcuffed, my lawyer whispered to me during the hearing that my father had passed away. I stood there numb, unable to understand anything around me. Life ebbed out of my body. The judge offered me condolences but I remember nothing. That day, like the walking dead, I went from the court complex to my prison cell without registering anything.
I was angry that I had lost my father days before but was not immediately informed about this tragedy. His last rites were performed without me, his only child available to do so at that time. I could neither read his namaaz-e-janaza nor bury him and put earth on his grave. For all the years after his death that I was in prison, I longed to see his grave.
But this wish could not be fulfilled even after I was released from jail. In my absence, my father had been buried by relatives and they did not remember the exact location of his grave. I have been left with a huge void in my heart that I do not know where my father is resting.
The memory of that day, the memories of my father and my guilt for not being there for him during that last period still makes me shiver and gives me panic attacks.
Jails are places of loneliness. In prison you do not have anyone to hug and comfort you. I felt as if I had lost a body part. I felt paralysed. Losing a parent is the biggest loss for any human. I was 21, in prison on false charges of terrorism and worried about future of my family. Who would be there for me, who would help me prove my innocence, who would give me whatever little information I was getting of the outside world, who would take care of Ammi, who was now left all alone to manage courts, lawyers, fees? What if lost my mother too? I was blank and without direction.
A few days later, I did get permission to meet my mother for an hour but with a heavy police presence.
Mahavir Narwal’s death should remind us of all the prisoners who are in jail and are away from their families. As the second wave of the deadly virus spreads across the country and we all urgently want to be as close to our families and loved ones as possible, I wonder what must be happening to prisoners. Prisoners are at risk of severe exposure to the virus themselves and also away from their families. Given the enormous number of dead and seriously ill people, many prisoners must have lost their family members.
But India’s colonial-era prison rules do not provide a institutionalised right-based approach for prisoners to meet with family members, especially in case of emergency. According to the Delhi Prison Rules, 2018 (Chapter-VIII), the jail superintendent can be contacted in case of urgent family emergencies. Families are allowed half an hour interviews (or mulaaqats). Prisoners are also allowed to send weekly letters to their families at their own cost.
But the procedures to seek to interviews are sketchy and cumbersome and even if a meeting is allowed, there is no privacy. Further, people charged under so-called national security laws are denied these facilities as per the rules.
Besides, a bare reading of the rules will show that all the mechanisms for reaching out to families are subject to discretion of the jail officers. Mulaaqats could be suspended at any moment, the letter writing facility can be restricted by the superintendent for security reasons or to protect the public interest. These facilities may also be denied for ensuring “discipline” and “good conduct”.
With the pandemic, physical mulaaqats have been suspended again after having been revived in March for a brief period. However, e-mulaaqat and phone calls have been allowed. Though medical emergencies in families are usually considered grounds for interim bail, moving a bail application requires considerable resources. Since the large majority of prisoners come from marginalised backgrounds, they may not have the resources to do so.
Many prisoners may not even have received information of the deaths of their loved ones, as happened with me in 2001.
There are mechanisms available to ensure accountability like the Under Trial Review Committee as ordered by the Supreme Court, the Board of Visitors and the mandatory monthly visit by magistrates. But they are either non-existent or very mechanical in their approach.
Right to vaccination
Last year the Supreme Court of India and since then many High Courts have passed orders for prisons to be decongested. Although largely based on the nature of offences, the courts have made an attempt to reduce the overcrowding in prisons. Prisons, after all, are hotbeds for the spread of the virus. Hundreds of prisoners share a single toilet, glasses, jugs are shared by minimum 10-15 people, you sleep close to each other sometimes with little space to move. Cells are designed to block ventilation. No social distancing is possible in such an environment.
In such a situation, if prisoners are not vaccinated, it would effectively amount to handing them a potential death sentence. According to the reports, in Delhi alone, 249 prisoners had tested Covid-positive at the beginning to May and five had died. We have no data on how many prisoners lost their loved ones and family members.
Many other nations are framing policies on this front. In India, too there have been appeals to state bodies and courts. But this is an urgent concern. We need to take action on a priority basis, else it would be a clear violation of the very right to life as provided under Article 21 of the Indian Constitution.
In addition, prisoners are completely dependent on the state for vaccinations. I believe that not only the government but even the Supreme Court and National Human Rights Commission should take up this matter urgently. We also need to make sure that prisoners are provided with N95 masks since cloth masks are no longer considered effective. Experts are warning about a third wave.
When the prisoners, convicted and undertrial, return to jail, as they will, who will address their loneliness? Who will answer for the loss of time and touch of loved ones who are no longer there to hug them, comfort them? How can we ever live with the guilt of knowing that we did not allow prisoners their last chance to save their loved ones?
We need a mechanism to ensure that mulaaqats are treated as a right, not merely a favour extended to prisoners subject to whims and fancies of the prison officials. Prison manuals need to account for the fact that with imprisonment only the right to liberty of movement is restricted – all other rights remains intact.
I stand with Natasha Narwal and many other prisoners who have lost their loved ones. My solidarity to each one of them. Hope she and many like her find within themselves the strength to bear this pain.
Mohammad Aamir Khan is author of the book Framed As A Terrorist: My 14-Year Struggle to Prove My Innocence. He was falsely accused of terrorism charges in 1998 and was acquitted of the charges in 2012 after 14 year long struggle. Later, the National Human Rights Commission provided him compensation of Rs 5 lakhs for violation of his liberty by the state.
He would like to thank lawyer Surbhi Karwa for translating this piece and helping in the research.