'Kasab is no regular undertrial. He will be taken care of.'
That is what the Indian Express reported on June 26, quoting Ujwal Nikam, the prosecutor in the proceedings against Ajmal Kasab, charged with the a major role in the 26/11 terror attacks on Mumbai. The good judge had asked the authorities that Kasab, who had complained of stomach ache, to be taken care of properly.
That one sentence is startling mea culpa of the system which has seen little change from the time it was set up by the British. I am hoping that the attribution to Nikam was accurate. If it is, it publicly opens a can of worms called Indian jails. Much is reprehensible about it. And here is why.
What if Kasab were not 'a regular undertrial'?
By logic, by implication of what a law officer assisting the administration of justice in a court of law said, the 'regular undertrials' are treated differently. And how!
Fortunately, I have never been in jail save a visit in the late 1960s along with a friendly jailer in Secunderabad to see the gallows and understand how it operates. And from what I hear and read of the jails, one would rather never be in that facility or even a police lock-up. They are designed and managed to ensure retribution even before the trial starts. And the law says a suspect is innocent till proven guilty!
Conditions in jails -- not just in a place or two -- across the country are dire. They are not for weak stomachs or the feeble of resolve. It is a penal system that the authorities seem to have set up using the Prisons Act of 1894 and then forgot about need to real reform. Ditto the police lock-ups. Ask anyone who has been unfortunate enough to have been there and harrowing tales of torture, injury not just to the body and mind, but also to the dignity of the individual would emerge.
The tragedy is that no one seems to bother. Not even the lawyers who represent their clients at a cost but seldom, if ever, are they seen protesting the treatment of the suspects and undertrials in police and jail custody. It is as if everyone wants to move on, because, well, the system is like that. And why would a person protest and receive the juiciest assault later at the hands of the law?
This is what the Human Rights Watch said in its 1991 report on India's penal system: "Yet if the checks and balances of democracy are supposed to curb government lawlessness, something has gone wrong in India. At least, so it seems from an examination that we recently conducted of imprisonment and police detention in India. In some major cities of the country that we visited, and probably elsewhere as well, anyone unlucky enough to be arrested faces a far greater likelihood of torture, or worse, at the hands of the police than in many countries entirely lacking in the protections for civil liberties available in India."
What are the ills? For one, classifying the prisoners including the suspects and undertrials on the basis of their social and economic status, the poor getting the worst of it. Other elements in this cocktail are poor conditions inside -- lock-ups with nothing, not even a urinal -- officials stealing the jailed person's legitimately entitled share of consumables, insanitation, bribery to even allow families to visit the detenues, torture, all of which rob them of their dignity. I know of what a celebrity undertrial told his doctor when he escaped to the plush confines of a five-star hospital: "They are hell holes on earth."
However, it is not that the Indian higher judiciary has been blind to the goings on. It has awarded compensation to the persons wronged but they are few and far between and the authorities have taken it in their stride. A Visitors' Board, comprising judicial officers and people from varied backgrounds was set in place -- Maharashtra is one among the few states which have that in place -- so that reputed persons visit the jails and see the conditions for themselves to ensure adherence to rules and law. But no one knows how it is functioning.
Gregory David Roberts, in his celebrated Shantaram describes the conditions in Colaba Police Station and the Arthur Road Jail; they are most likely to be representative case of the Indian police and prison system. And yet, none has batted an eyelid. The irony is that celebrities have been inside jails -- Sanjay Dutt, Bharat Shah, et al but none has spoken out about what they saw and experienced which could help bring public attention to what transpires within the police lock-up and the jails.
Even Kuldip Nayar, the renowned journalist, later nominated to Rajya Sabha, in his In Jail wrote about the corruption in Tihar Jail where he was incarcerated during Emergency, about how everyone watered the milk and everyone stole from the kitchens to the detriment of prisoner requirements. Silence seems to have been the only response of the system. To most of us, a police lock up or a jail has low visibility where mostly inhumane conditions prevail.
A whole lot of literature is available, including copious judicial pronouncements with their explanatory narratives, but the Indian system seems impervious to all that. It is as if the sole purpose of the police and jail systems is only to defeat the various laws, and even international covenants to which India is a signatory. The wealth of detail is enough to leverage a change but sadly, that does not seem to be the case here.
Out of sight, out of mind
No wonder that keeps us happily ignorant of what transpires inside but it is clear that superintendence by the state is minimal, if not non-existent. Reports have spoken of a common situation where a prison's isolation provides them with a cover under which fundamental human rights could be "unofficially violated and officially denied".
Even the lower courts are responsible for most of the problems. They routinely provide custodial rights to the police without even asking whether it was required at all, especially in cases where the poor do not manage to find lawyers to plead their cases. That leads to overcrowding of jails, where conditions are primitive and pathetic and compounded by the insularity of the system.
Little wonder, the Human Rights Watch eloquently said in that report cited earlier that "Although prison systems everywhere (emphasis added) are marked by inertia, few can match India's in immutability of practice (emphasis added)".
Its time this changed. But that would happen only if the judiciary wakes up to the enormity of the issue, for they are not confined to only such rare cases which are brought before it of injury to the dignity of a person. A reform has to be speedily forced on the system. Not changing that would lead to travesty of justice.
If that change does not happen, it would be futile to talk of India being a civilised place.
Mahesh Vijapurkar is a Mumbai-based commentator and former deputy editor, The Hindu