By Advocate Syed Mujtaba Hussain
V.R. Krishna Iyer (J) has rightly observed that “In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters.”
It is established that conviction for a crime does not reduce the person into a non-person; so he/she is entitled to all rights, which are generally available to the non-prisoner. On the other hand, it cannot be denied that he is not entitled for any absolute right, which is available to a non-prisoner but subject to some legal restrictions. The Supreme Court of United States as well as the Indian Supreme Court has held that a prisoner is a human being, a natural person and also a legal person. Being a prisoner, therefore, he/she does not cease to be a human being, natural person or legal person. Conviction for a crime does not reduce the person into a non person. The courts , which send offenders into prison, have an onerous duty to ensure that during detention, detainees have freedom from torture.
William Black has said “Prisons are built with stones of Law”. So, when human rights are abused behind the bars, constitutional justice comes forward to uphold the law. The life of an offender cannot be jeopardized by indulging in illegal physical and abuse torture by the jail authorities.
In Sanjay Sun v Delhi Administration, AIR 1988 SC 414, the Supreme Court was not happy with the attitude of the prison authority and suggested that the prison authorities should change their attitudes towards prisoners and protect their human rights for the sake of humanity.
Furthermore, Article 5 of the UDHR states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. There are words that crop up again. They mean severe beatings on the body and the soles of the feet with rubber hoses and truncheons, electronic shocks being run through the genitals and tongues, near-drowning, hanging arms and legs, cigarette over the body, sleep deprivation or subjection to a high pitched noise and much more.
The Supreme Court has observed that “right to life is one of the basic human rights. Even when lodged in jail, he continues to enjoy all his fundamental rights including the right to life. On being convicted of a crime and deprived of their liberty, in accordance with the procedure(s) established by the law, prisoners shall retain the residue of the constitutional rights. This right continues to be available to prisoners and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which have been rejected several times by the Supreme Court”. The State is liable for the death of an under trial who continues to enjoy all fundamental rights, including right to life.
Thousands of Kashmiri prisoners languish in jails across many parts of India. Many of these are young people. Kashmiri political prisoners, most of them, according to family members have been implicated in false cases are presently in the jails of Rajasthan, Varanasi, Bengaluru, Gujarat and other jails of India.
The Jammu and Kashmir Council for Human Rights (JKCHR) submitted a document to the Secretary General United Nations on the plight of Kashmiri prisoners held in the Tihar jail, New Delhi , as the UN General Assembly Document titled A/HRC/36/NGO/52 at the 36th session of Human Rights Council,
The document submitted under agenda item 3 of the 36th session of the Council which started its session in Geneva, pointed out that there are 19 Kashmiris have been serving life imprisonment in Tihar jail, New Delhi.
One case of abuse of prisoners might illustrate the point. Mohammad Hussain Fazili who was released in February 2017, after spending 12 years in jail, reported that they are forced to urinate in each other’s mouth.
Talking to the media, Fazili said, “We were forced to drink urine and eat human waste along with bread. Rats were put in our trousers. As if, this was not enough, he said, pigs were let loose to lick our mouth and face. At the same time, cops used to push water and bread into our mouth. We thought since we were Kashmiris and Muslims, it was the only reason for facing such torture.”
Recently, the Joint Resistance Leadership (JRL) had approached the Jammu and Kashmir State Human Rights Commission with a petition maintaining that the rights of Kashmiri prisoners were being violated in jails. The petition filed before the commission on November 3, this year, had sought instructions to restore the dignity of Kashmiri political prisoners languishing in different prisons.
According to the petition, “In New Delhi’s Tihar jail, Kashmiri inmates are being even deprived of basic rights to survive and no medical treatment is being provided to them, nor are they being allowed to meet their kith and kin, the petition said. It further said that the Kathua jail in Jammu had become a torture centre where Kashmiri inmates are deprived of human contact for many months. This amounts to punishment beyond prison time and it is inhuman”.
According to media reports, on the night of November 21, a team of Tamil Nadu Special Police (TSP) allegedly beat up at least 18 inmates of Tihar Jail’s High Risk wards ‘C’ and ‘F’. The inmates sustained severe injuries. Many of the injured prisoners were Kashmiris serving detention in Tihar jail, among them Shahid Yousuf, son of Hizb-ul-Mujahideen chief, Syed Salahuddin.
On the 28th of November, Advocate Syed Mujtaba, a human rights defender on behalf of the Lawyers Club president Advocate Babar Qadri, lodged a complaint in NHRC New Delhi against the jail authorities of Tihar. The petitioners expressed serious concern about the miserable and inhuman treatment meted out to Kashmiri prisoners in Tihar jail. In the petition, safety, security and proper health care was demanded to be ensured.
The antidote to this form of abuse lies in changing the existing legal structure of the prisons, amendment of criminal law and the enactment of a new Prisons complemented by a review of Prison Manuals and their implementation in both letter and spirit.
—The author is a human rights activist from Kashmir and can be reached at: [email protected]