Interview: Burden of enforcing right to life & to speedy trial by SC and the exchequer is worth undertaking: Justice V.N.Sinha

Model Prison Manual 2016 has serious anomalies, may lead to human rights abuses: Activist & Expert Smita Chakraburtty

Justice V N Sinha, who retired from Patna High Court, had been Member of National Legal Services Authority (NALSA) on the recommendations of the Chief Justice of India in 2014 and continued as such till he demitted office in 2015.

Justice Sinha, commissioned Smita Chakraburtty, to inspect all the 58 prisons of the state of Bihar, to find out about the physical and legal status of each and every prisoner living in the prisons of Bihar. Smitas report was subsequently published by Bihar State Legal Services Authority. Justice Sinha and Smita have jointly presented the Bihar Prison Report in various forums since then.

Smita Chakraburtty, is an Independent Researcher and Activist working on Prisoners’ Rights. She is also Consultant Specialist- Court and Criminal Justice System with Azim Premji Philanthropic Initiatives- APPI. (Views held by Smita, are her own and does not reflect any other individual or organization).

Both Justice Sinha and Smita Chakraburtty shared their views on issues of interest with Livelaw.

Excerpts:

Q: The Supreme Court's recent rejection of the plea by two acquitted prisoners in the Akshardham case for compensation has disappointed those who expected the court to support fundamental rights of citizens who suffered wrongful imprisonment. What is your response to the court's justification for not entertaining it, though it did not give a reasoned judgment, with the petitioner opting to withdraw his petition.

A. JUSTICE V.N.SINHA : I haven’t read the Akshardham case papers other than as and when reported in the newspapers. However, from what I understand from the media reports after the Supreme Court judgement in the matter, that in the Akshardham case the SC perhaps did not consider the prayer of petitioners for grant of monetary compensation on account of 11 yrs of procrastinated delay in earning clean acquittal. Perhaps the court did not find the petitioners victims within the definition of ‘victim’ as defined in Cr.P.C. 1973 and covered by Victim Compensation Scheme 2011-14, framed under the Cr.P.C. itself.

By the constitutional mandate of right to life enshrined in Article 21, speedy trial or trial within a reasonable time is a fundamental right read by the SC in right to life as far back in 1979 in the case of Hussainara Khatun (1979 AIR 1369, 1979 SCR (3) 532). For violation of that right petitioners accused in the Akshardham case underwent agony of trial for 11 years, which period by no means is a reasonable timeline for disposal of a trial. Thereafter, the accused earned a clean acquittal.

I am reminded of the case of Rudal Shah [AIR 1983 SC 1086], in which in spite of acquittal he remained in the prison for 14 yrs. For such illegal detention and harassment Rudal Shah was compensated by the State of Bihar on the direction of the SC in its Writ Jurisdiction. Similarly, SC could have considered the prayer of the petitioners in Akshardham case for violation of their right to speedy trial in the manner it thought appropriate.

True it is, that the direction by the SC for payment of compensation could have opened the floodgates. As those whose right to speedy trial has been violated would begin to approach the SC with similar prayer which would not only burden the court but also the exchequer.

Right to life/ speedy trial is the most coveted amongst the democratic rights, enshrined in Part III of the Constitution. Burden for enforcing the same by the Apex Court and the exchequer however is worth undertaking. In any case the same could have been taken care of by relegating similar persons to approach the HC under Article 226 and directing those who were responsible in causing the delay, to shoulder the expenses of the compensation. Thereby all those who are responsible for the inordinate delay in the investigation/trial which has plagued the Justice Delivery system, could have been alerted, thus ensuring Access to Justice to the most vulnerable amongst the weak in the society as enumerated in section 12 of the Legal Services Authorities Act 1987.

SMITA CHAKRABURTTY: Prisoners are treated as the crumbs of the society and imprisonment induces psychological scar. To suffer the burden of the terror tag, and being shunned into silence of confinement for over a decade, is a gross violation of human rights. Prison is a taboo. To the society, a terror accused is a terrorist. Even after a clean acquittal, the released prisoner continues to be considered a terrorist. Under such circumstances the one who has been wronged can only look up to the institution of justice, though no amount of monetary compensation can right the wrongs thus suffered. But it can only acknowledge the fact that a person was wronged. This acknowledgement holds a high moral standing, which keeps the faith alive of the people in the justice delivery system.

Moreover, the SC has several jurisdictions civil, criminal, constitutional and others. When an SLP is filed it is invoking only civil, criminal or other jurisdiction. But when a writ petition under Article 32 of the Constitution of India is filed by the petitioners, it is invoking Writ Jurisdiction of the Hon’ble SC, for redressal of violation of Fundamental Rights, including right to life as enshrined in Article 21 and 22 of the Constitution of India. When there is a case of gross violation of fundamental rights as in the above mentioned case, the petitioner approaches the Apex Court hoping that the SC under its Writ Jurisdiction will exceed human heights and stand in defence of human rights, in contravention of all other problems such as opening of the floodgates for compensation.

Q: The Supreme Court's recent judgment in the Manipur encounter case has given rise to hopes that there is scope for seeking accountability of security forces. Can we say AFSPA is on the way out?

A: JUSTICE V.N.SINHA: Whether AFSPA is on its way out was not within the scope of the judgement, as in the said case, constitutionality of the charging sections, 3 and 4 of AFSPA was not under challenge. Yet in the said judgement, the SC has recognised right to know in connection with enforced disappearances and extrajudicial killings with reference to the resolution articulated in 62nd session of the Human Rights Commission by the United Nations High Commissioner for Human Rights in paragraph 8. It has specifically mentioned in paragraph 3 itself “without knowing the truth the law can’t be tempered with justice”.

SC further observed in paragraph 91 and 92 that there cannot be any justification declaring a particular area as disturbed area for 60 long years by observing “Whatever be the case, normalcy not being restored cannot be a fig leaf for prolonged, permanent or indefinite deployment of the armed forces (particularly for public order or law and order purposes) as it would mock at our democratic process and would be a travesty of the jurisdiction conferred by Entry 2A of the Union List for the deployment of the armed forces to normalize a situation particularly of an internal disturbance”.

The most important aspect in the judgement is that SC has questioned the use of excessive force and thereby questioning the impunity enjoyed by the armed forces by observing, “There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation”.

SMITA CHAKRABURTTY: I second Justice Sinha when he says whether AFSPA is on its way out was not within the present scope of the judgement. But this is certainly a step forward as the strongly worded judgement has broken the fangs of the draconian law by putting impunity enjoyed by the armed forces under the scanner. It has raised questions regarding the use of excessive force.

However, considering the long standing movement of the people of Manipur regarding the removal of AFSPA, and the over a decade-long indefinite fast of Irom Sharmila [who has since announced her intention to break her fast, after this interview] demanding the same, this judgement though a welcome judgement is actually too little too late. There shouldn’t be any scope for draconian laws like AFSPA or UAPA in a democracy. Such laws though seen as a normative blight or a necessary evil, only exposes the weakness of an institution and pinpoints to the failures of democracy.

Q: You have visited a number of prisons in various states. Can you share with the readers your most lasting impressions in these visits?

A: SMITA CHAKRABURTTY: It is difficult to point out to a particular incident.I have visited several prisons and interacted with thousands and thousands of prisoners. To step inside a prison and witness people live under confinement is in itself a disturbing sight, which can leave a person emotionally rattled.

I had met a woman in a prison in Bihar, who alleged to have been raped in prison. She alleged that after that horrific incident she was further subjected to brutality. She was dragged out of the woman ward, stripped and beaten senseless in full view of the male prisoners. Police filed charge sheet in that case after a delay of two years. What caused such a delay when the woman prisoner was in prison and the accused were also easily approachable, as they were from among the ranks and file of the prison staff itself, I cannot tell.

When I met the prisoner, she was staying alone in the woman ward of the same prison where the dreaded incident she alleged had occurred. She didn’t weep or shout but remained calm and was convinced that I was of no good to her. I tried to explain to her my purpose of visit and wanted to assure her support but she remained unconvinced. I had never witnessed before such deep cynicism among prison inmates with the institution of justice. She appeared as if she had nothing more to lose and had given up on all hope for justice. I felt deeply ashamed.

Q: There have been sporadic reports of prison riots in the country. What, according to you, are the reasons, and how they can be remedied?

A: SMITA CHAKRABURTTY: Confinement is depressing. Prison is an opaque institution, where prisoners are made to live under inhuman conditions, governed by stringent and arbitrary rules and regulations. Prison department is under state domain and is subject to neglect as there is lack of political will to improve prison conditions. Punishment is interpreted as justice thus inhuman treatment meted out to prisoners are justified as justice.

Not only prisoners, even prison staff are neglected. Prison staff are under- paid, under- trained and overburdened. Under such circumstances where both the staff and the prisoners are under excessive stress, prisons turn into high tension zones which are prone to outbreak of sporadic riots.

There is no easy way out of this situation. But humane treatment meted out to prisoners and serious effort to address prisoner grievances can definitely stop prison riots.

Time and again the respective High Courts and the Supreme Court has meticulously insisted upon improvement of prison conditions. One recent such judgement is of the Rajasthan High Court delivered on the 27^th of January this year by Justices Mohammad Rafiq and J.K. Ranka. It is noteworthy because the judgement is outstanding in its detailed instructions to improve physical conditions of prisons of the state. Though the judgement is restricted only to the state of Rajasthan, but it definitely has persuasive value in the other states.

Moreover, in 2015 in its landmark judgement regarding inhuman conditions prevailing in 1382 prisons, the Supreme Court instructed Ministry of Home Affairs to constitute a multi-disciplinary committee to review the Model Prison Manual 2003, update it and reframe it at par with recent judgements and changes in technology. Accordingly, Model Prison Manual 2016 was drafted, with special chapters dedicated for maintenance of prisoners, repatriation, execution of sentences, education, welfare, legal aid, woman prisoners, young offenders, prison computerisation and remission. Yet MPM-16 is not free from aberrations, which needs immediate intervention.

Q: What is wrong with the draft Model Prison Manual 2016? Should the Supreme Court step in to stop the states from adopting it without necessary changes?

A: SMITA CHAKRABURTTY: In spite of consistent effort on the part of the Supreme Court to have an updated prison manual, which would be instrumental in bringing about change in the prison system and make it humane, the one chapter on Prison Discipline has serious anomalies, which creates scope for Human Rights abuses.

In Chapter 21, under Prison Offences and Punishments 21.09. it will be considered a prison offence if prisoners complain against prison officials. [Rule (x) “Making false, malicious and groundless, written or verbal, complaints against prison officials”.] Who is to decide whether the complaint filed by the prisoner is false or malicious? But if filing a complaint is seen as a prison offence then it is actually prohibiting prisoner from filing grievances and encouraging breeding resentment, which can prove counter-productive and lead to riot.

Similarly, under rule (xxiii) going on a hunger strike is also considered a prison offence! Registering a non-violent form of protest cannot be seen as an offence in a democracy, even inside prison.

Again, under Duties of Prisoners, [Rule 21.15], (iii) prisoners are asked to abstain from singing, laughing loudly, talking loudly! And in Rule 21.15 (v) prisoners are prohibited from receiving ganja, which can be understood. But under the same rule prisoners have been prohibited from receiving books or writing material too! Also, under the duties of prisoners in Rule 21.15 (xx) it has been laid down that prisoners are “not to undertake any agitation, organized protest or hunger strike”.

In addition to the above mentioned rules under major punishments, Rule 21.11.2 (iv) refers to when a prisoner forfeits earned remission beyond 10 days. Without an upper cap and intervention of an appellate body, forfeiture of remission is cruel and inhumane.

If there is any scope for the existence of the above mentioned rules as elaborated in chapter 21, of the MPM-16, then it nullifies and invalidates all progressive reform brought in through the other chapters in an attempt to make prisons humane.

The states are in the process of adopting MPM-16. Thus there should be immediate intervention to remove these aberrations from being adopted.

Q: What is the scope of remission after the Sriharan @Murugan Judgement of December 2, 2015?

A: JUSTICE V.N.SINHA: In the Murugan judgement constitution bench of the SC by majority, revisited the powers of the appropriate Government. to grant commutation and remission both to prisoners serving life and other sentences. After referring to Section 432(2) of Cr.P.C. it required the appropriate Government. to seek opinion of the sentencing court on the question of grant of remission. Thus further empowering the sentencing court to put a restriction on the powers of the appropriate Government in granting remission thereby endorsing the view taken in Swami Shradhanand case.

However, I am afraid section 432(2) of Cr. P.C. may not serve its useful purpose. I have also been informed by Om Prakash, Member Secretary Bihar State Legal Services Authority-BSLSA, that recently Bihar Remission Board had to adjourn the proceedings twice as the report of sentencing court had not reached in time or it was not in accordance with the Supreme Court’s observations in Sriharan @ Murugan.

According to Om Prakash, “the opinion of court will be based on the conduct of accused during trial and the Presiding Officer-PO of the court may be unaware about the changes in his conduct in the prison after conviction. Also, the present PO of the sentencing court will have to go through the entire record of the case which was recorded by some other PO more than 14 yrs ago. At times the original records might not be readily available in trial court. Thus unnecessary delay may be caused in giving opinion to the Remission Board. Moreover, opinion based on old facts will hardly serve any useful purpose as the accused may be a changed man after more than 14 years of incarceration.”

SMITA CHAKRABURTTY: Remission is hope for the prisoner and is very hard-earned. Any uncertainty regarding remission causes anxiety among prisoners who are already under distress due to prolonged imprisonment. The requirement of seeking report from the PO of the sentencing court might be unworkable due to various technicalities involved. Moreover, the process is an added layer to the already complicated process of considering grant of remission by the remission board and the prisoners are at the receiving end of the delay thus caused.

There are some prisoners in Bihar who are from Buxar Open Prison. They too are awaiting remission. The very fact that they are now in Open Prison stands witness of their good conduct in confinement, one wonders why they are made to suffer the delay in obtaining remission.

Also, prisons are now considered Correctional Homes, with objective of reform and correction not retribution. Thus after prolonged imprisonment if the inmate is still found unfit to be returned to the society then it is the failure of the Correctional Institution, which requires deep introspection.

Q: Recently, there was a news report stating that a three-year old was sent to jail for two weeks in Madurai. How do you react to this?

A: SMITA CHAKRABURTTY: This clearly proves that first physical production in the court within 24 hours of arrest does not happen, even though it is mandatory. This means that the accused is not being taken inside courtroom in front of the judge. During the first physical production, it is the duty of the judge to speak to the accused, then give him or her bail, or send the accused to jail. Had the magistrate done his duty, then he would have seen the kid, and immediately dismissed the case.