Not on the bodies of the condemned

May 06, 2013 02:58 pm | Updated June 07, 2016 01:55 pm IST

Activists of India's right-wing Hindu nationalist shout slogans during a protest in New Delhi, India, Friday, May 3, 2013. A Pakistani prisoner in a local jail in Indian Kashmir was seriously hurt Friday after being beaten by another inmate, a top police official said, a day after a convicted Indian spy Sarabjit Singh died after being bludgeoned with a brick by fellow inmates in a Pakistani prison a week ago. Placards at center reads: "Down, Down Pakistan. Give a suitable reply to Pakistan." (AP Photo/Manish Swarup)

Activists of India's right-wing Hindu nationalist shout slogans during a protest in New Delhi, India, Friday, May 3, 2013. A Pakistani prisoner in a local jail in Indian Kashmir was seriously hurt Friday after being beaten by another inmate, a top police official said, a day after a convicted Indian spy Sarabjit Singh died after being bludgeoned with a brick by fellow inmates in a Pakistani prison a week ago. Placards at center reads: "Down, Down Pakistan. Give a suitable reply to Pakistan." (AP Photo/Manish Swarup)

Sarabjit Singh is dead. An Indian national has died after being attacked by inmates in a foreign jail that left him in a state of coma. The attack which has been characterised as a malicious ‘nationalist’ retaliation by co-prisoners against the fate meted out to their countryman, Kasab, or the rushed hanging of Afzal Guru in India, is only reflective of the cruel bio-politics practiced between the two states where the bodies of the ‘condemned’ are the sacrificial targets of bad diplomacy and media jingoism.

The death row prisoner is most vulnerable while being most ‘secured’. Instead of waging proxy wars on their already damned bodies and turning prisons into slaughter houses, both countries need to learn from the costly lessons of ‘doing away’ with each other’s prisoners. India and Pakistan have a long history of denying consular services to each other’s prisoners, layered with the grim practice of sending back bodies and coffins from their prisons, and of late, not even permitting grieving families to the graves of those who will not be returned.

Consular rights of prisoners should not be a derived product of political or media harangue as it turned out in Sarabjit’s case. Under the 1963 Vienna Convention, to which both India and Pakistan have acceded, access to consular services is guaranteed to ensure that the general welfare and rights of foreign national prisoners are safeguarded. In 2008 the two countries signed a consular agreement to provide each other with lists of prisoners who could be exchanged at least twice a year. Consular visits are made by officials of the High Commission of a country to ascertain that citizens arrested abroad obtain fair trial rights, have legal and medical assistance, and are treated humanely while incarcerated in a foreign country’s prison. These services must be quick, consistent, regular and routine but are usually denied and obstructed by wilful red-tapism, political vendetta and excuses that find no legal or human ground.

The manner in which the media played up the Sarabjit Singh story created an illusion that all is well in India’s own prisons.

But, all is not well.

We only have to turn the pages back to 11 March, a month ago, when one of the accused in the Delhi gang rape case, Ram Singh, was found hanging in his cell in Tihar jail. It was a home-grown disaster borne out of poor supervision, with zero action against jail officials on duty. The attack on the Pakistani prisoner Sanaullah in Jammu leaves us with no doubt and plenty of fear as to what may happen in an Indian jail, though it is supposed to be a place of safe judicial custody.

If we must digest more reality than this, it is that of India holding more than 700 Pakistani nationals in its prisons, not to mention Afghan and Bangladeshi, African, Burmese and Saudi Arabian nationals, with several having overstayed their sentence by five years or more, with no consular access in sight! There are petitions against the Indian Government in its own courts against these very illegalities, proving how little punctilious it has been in providing the services necessary for safe custody and safe return of foreign nationals.

The Foreigners Act operative in India is a crude pre-constitutional Act that permits these detentions with no safeguard for consular services for foreign national prisoners, but with such wide powers of detention invested in security forces that it can fling indiscriminately into custody all and sundry, the inadvertent border crosser, the fisherman, the petty trader, the small time visitor, the juvenile, the smuggler and the ‘terrorist’. It is so vastly devoid of substantive SOPs as regards information to family at the time of arrest, consular access, early processing of return, or shelter and family rights during repatriation that it inherently forces prisoners into longer periods of detention than what is legally permissible and what tragedy can bear. Commonwealth Human Rights Initiative and the National Human Rights Commission have been struggling, in vain, to get the attention of the Ministry of External Affairs and Ministry of Home Affairs to act speedily on the numerous ‘overstays’ in Indian jails and observation homes who are detained merely awaiting repatriation!

On all sides the story is the same. Callous.

We recall the case of Ariful. A five-year-old boy from West Bengal detained in Kushtia jail in Bangladesh last year along with grandparents, who, for not having the right identity papers, not only served a sentence in lieu of a fine they were just too poor to pay, but continued in detention for months afterwards as there was no repatriation process that the jail authorities and the High Commissions had managed to put in place between them.

It was only media attention that allowed Ariful to be released. But he was just one.

The media-manufactured jingoistic hysteria in Sarabjit’s case may have forced the government to pay unprecedented attention to a national in difficulties abroad and provide help to Sarabjit’s family, but it has also allowed the routine mistreatment, vulnerability and neglect of foreigners in custody to be completely overshadowed by shrill and populist invective against Pakistan.

It may be true that Sarabjit strayed into Pakistan, was falsely implicated, and wrongly convicted. But we like to forget that Sarabjit’s hanging was indefinitely put off in 2008 as a goodwill gesture by the President of Pakistan. Sections of the media are content to paint Pakistan deep black. But the price of its selective representation is now paid by another life in peril in the Jammu jail. The Indian media wants us to remember Chamel Singh, an Indian spy, who died in the same Kot Lakhpat jail in January this year amidst allegations against jail authorities of having tried to kill him. But it has now forgotten Kashmir Singh from Hoshiarpur, another Indian spy and soldier who, after 35 years in seven different Pakistani jails, was released in March 2008, following the acceptance of his mercy petition.

So should people in glass houses throw stones? Yes they should. If manufactured anger fuels a righteous cause, it should be used to further executive efficiencies, accountability and, above all, nurture genuine humanity for the families of the person in custody. We could not save Sarabjit. Nor Khalid Mahmood who had come to India to watch a cricket match in 2005, overstayed, sent to Gurgaon’s Bhondsi jail, died in mysterious circumstances three years later, and went back in a coffin a few days after Kashmir Singh was handed over to India. But we can honour their tragedies by assuring others have access to justice. Pakistan can bring its murderers to book in quick transparent trials. India should take preventive action to ensure that Sanaullahs and Sarabjits are not repeated.

It can also make sure that even without the jingoistic media to spur it on, it has the will to protect every foreign national prisoner and bring to book its own officers who neglect their supervision and timely repatriation for those who have completed their sentences.

Our jails are never empty. Indian prisons are overcrowded by more than 135% (Source: National Crime Records Bureau), spilling over due to more prisoners on remand than those convicted; undertrials who are too poor to pay fines and furnish bail or surety, and those who cannot return home till the country’s bureaucracy deigns so.

If there were real care and concern about each others’ nationals living through the rotten environment of prisons in both countries there would be more media attention paid to the lack of government effort on both sides in wholeheartedly implementing the consular agreement the two countries signed in 2008. That the Pakistani Government allowed full time access to Indian officials to provide consular services to Sarabjit is not merely a matter of achievement wrested out by India and Indian media for Indian prisoners but a great stride that Pakistan has taken in its diplomacy in setting a standard for monitoring the safety and rights of foreign national prisoners in its own country which it must sustain.

Genuine concern for Sarabjit and Sanaullah and fellow sufferers on both sides of the border requires political will not to manipulate the bodies of the condemned. A prison should not be a killing field; it is a place for correction and safe custody. For the institution to be what it is intended to be in these times, jail officers in all countries must be made liable for their omissions and commissions and prosecuted for dereliction of duty to protect. Swift, independent and impartial investigations by the joint Indo-Pak Judicial Committee in the event of attacks, hangings and deaths in prisons, should meet a fate different from what the inquiry commission on Chamel Singh’s death encountered.

Can we dare to hope that as both countries face the gravity following prison hangings, attacks and deaths, a different politics may emerge between the two nations that cuts through the cold and impoverished culture of rejected mercy petitions, unattended graves and outraged families, coffins and death blows? Can we hope to see, in both states, a culture of care and protection in custody, of easy access to consular services, of regular and periodic joint judicial oversight of each other’s prisons, of magnanimous exchange of prisoners and spies rather than death by any and all means, a politics from which custodians of the state, free citizens, and those not so free, may all learn...?

Sana Das works with the Prison Reforms programme of the Commonwealth Human Rights Initiative (CHRI).

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