Written by Jacob John and Devyani Kacker
We witnessed the passing away of Father Stan Swamy in custody in early July. Custodial deaths in India are far too common, both in police custody as well as judicial custody with more than 1,600 people dying in custody every year. Many of the deaths in custody are those of under-trials — those who have been arrested but are yet to be convicted. For many, their trials have also not started. Swamy’s trial had not started despite his incarceration for more than eight months. While Stan Swamy’s case made headlines, the cases of many that he worked for never make it to the news. India’s prisons are severely over-crowed and almost 70 per cent of those in prisons are under-trials: And that number has stayed the same for years across the country. The initial protest that Swamy was leading was against the wrongful detention of more than 3,000 Adivasis in Jharkhand. Many of these under-trial prisoners have been languishing in jail for years without the constitutional guarantees of fair trial.
For all the appreciation that India gets for being the world’s largest democracy with constitutional protections against abuse, it is criticised for its almost dysfunctional law and order and judicial systems. The police can be brutal, investigations are poor in quality, the courts take forever to adjudicate due to high pendency and the quality of legal aid remains poor. Things look so dismal that an arrest (not a conviction, mind you) is celebrated as, at a minimum, it creates some trouble for the accused. It also reflects a truism in our system, that due to a mix of reasons the chances of a fair trial and perhaps a conviction is extremely low.
Incarceration should not be an option for people accused of petty offences and prolonged detention while waiting for a trial certainly shouldn’t be an option either. Jail time should only be used for people accused of serious offences and bail ought to be granted liberally where all conditions are satisfied. Unfortunately, due to a host of reasons, jail and not bail has become the preferred norm.
While the “seriousness” of the crime, flight risk of the accused, and preseveration of evidence are generally used as a basis for denying bail and continuing incarceration, anecdotal evidence and conviction rates suggest that there is much more than meets the eye. It is a well-known fact that local power equations can be used to register a more “serious” crime against an individual. The Unlawful Activities (Prevention) Act (UAPA), a legislation ostensibly brought in to fight terrorism is used liberally against students, social activists and political opponents. The law on sedition is being used against journalists to muzzle the press, and the law on Protection of Children from Sexual Offences, or POCSO is used to imprison youth who get married against their parents’ will. Bail may also be denied to assuage our collective conscience and pacify a certain section of the media that a “bad person” has been put away — and therefore justice has been done.
Swamy was not the only under-trial awaiting bail in Taloja Central Jail, Navi Mumbai. Taloja Jail was set up in 2008 in an effort to de-congest Mumbai Central Jail that was severely overcrowded. Taloja Jail’s maximum capacity is around 2,124 prisoners but today it houses close to 3000 prisoners. During the first wave of the Covid-19 pandemic last year, when several prisons were closed, Taloja continued to take in new prisoners much beyond its sanctioned capacity. A joint study conducted by the Commonwealth Human Rights Initiative, Prayas — a field action project of TISS — and Project 39-A, NLU-Delhi documenting the decongesting effort undertaken by the Maharashtra prisons post the 2020 lockdown shows that Taloja Jail continued to be packed well past its strength with 2,376 prisoners, an occupancy rate of 110 per cent despite directions given by the Supreme Court to decongest prisons. It is crucial to note that Taloja Jail is a facility meant to house only under-trial prisoners. Potentially over half of the occupants are charged with petty or non-serious offences where the maximum sentence is less than 2-7 years. This is a common theme across many of our prisons, especially in urban centres.
Swamy was arrested and charged under several sections of UAPA, an anti-terror law that suspends the most fundamental, constitutional rights of those arrested i.e., the right to be considered innocent until proven guilty. Only 2.2 per cent of cases registered under UAPA between the years 2016-2019 ended in convictions by court, according to data presented by the Union Home Ministry in the Rajya Sabha. Given the low conviction rate as well as the ability to foist cases that have little basis in fact, it is difficult for a State committed to the rule of law to arrest and keep so many under-trials behind bars even in the category of “dangerous” prisoners.
The death of Swamy represents a systematic failure in our legal and prison system. Prisons are overcrowded due to the needless arrest of many people, slow processing of cases and low conviction rates, making the prison more of a place for punishment, rather than reform and rehabilitation. While Swamy has been (and will continue to be) in our collective consciousness mostly as a symbol of our collective failure to uphold our fair trial rights, we also need to think of the many other prisoners that continue to languish in jails. Their continued incarceration represents a failure of our democratic society as well as the rule of law. It is imperative that we support the most vulnerable to access the justice system as equal citizens — by right and not by largesse. When these unknown Stan Swamys are no longer mere statistics, but faces that get justice, we can say that we have delivered on our constitutional mandate for the citizens of India.
John works on issues of development and people. He has an interest in the criminal justice system. Kacker is a human rights lawyer with a special interest in transitional justice and criminal law.