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Should political prisoners be released during the pandemic?

As the second wave of the pandemic rages across India, the country’s overcrowded prisons are in danger of becoming major hotspots for the spread of the disease. Dozens of political prisoners, mainly civil rights activists, continue to languish in prison indefinitely with no possibility of their trials commencing any time soon. In a conversation moderated by Jayant Sriram, Sanjay Hegde (Senior Advocate, Supreme Court of India) and V. Suresh (National General Secretary for the People’ Union for Civil Liberties) discuss whether political prisoners should be released in view of the pandemic. Edited excerpts:

The Supreme Court has dismissed the bail plea of Gautam Navlakha in the Bhima Koregaon case. When we talk about political prisoners in India, there are a few prominent cases that come to mind thanks to the media — activists arrested in the Bhima Koregaon case, activists arrested during the anti-CAA [Citizenship (Amendment) Act] protests, and those detained in Kashmir. How many others are there that we just don’t hear about and who is not getting any legal aid right now?

V. Suresh: The unfortunate reality is that people seem to think that political prisoners are there only with regard to these high-profile cases. Actually there are cases from about 12-13 States — hundreds of people have been arrested and kept in prison for what are essentially political offences. This means that they have been put in prison on account of their political affiliations or allegations that they participated in conspiracies of a political nature. It’s a pity that many of these prisoners are not known; their cases have not come to the public eye. There are hundreds of Adivasi prisoners in Chhattisgarh and Jharkhand. There are people belonging to the minority communities in Karnataka, Rajasthan, Gujarat, and Maharashtra, apart from Delhi and other places.


Even during the pandemic, we see that political prisoners are repeatedly denied bail with no indication that the trial for the offences they have been put in jail for will start any time soon. What could be the justification for keeping them in prison?

Sanjay Hegde: You have to see why they were arrested in the first place. They were arrested because a political executive, headed by the respective Home Ministries, whether of the Centre or the States, said, do something about these people. The police then file an FIR, do an investigation which results in a charge sheet, and then arrest the person. The arrest is then defended through the courts, and when particularly harsh provisions like the UAPA [Unlawful Activities (Prevention) Act] are applied, then, thanks to certain judgments of the Supreme Court, there’s almost no chance of the person getting bail in the interim period. Now, if the UAPA is invoked, or if something like sedition is invoked, technically, the sentence could extend to life. So, these people do not even have the benefit of ordinary administrative orders which have been passed, which say that anybody likely to face a sentence of less than seven years can be released during the pandemic. The courts themselves have passed such orders. It’s a different thing that these trials do not even start. And when they are heard, it will be after the 14 years that a normal life sentence entails. We do not have a system in the country; we have a process. And the process is the punishment.

For prisoners held under provisions like the UAPA, is there any other recourse during the pandemic other than repeatedly applying for bail?

Sanjay Hegde: The only other recourse is political, i.e., if the charges are dropped. The state always has the right to withdraw charges. The moment the UAPA or anything is invoked, the judges give it extremely careful attention, more than it deserves, and tend to lean more towards keeping the person detained. None of our laws were built with the idea that a pandemic would intervene. All that we are doing temporarily is suspending ordinary laws during the pandemic or saying that in ordinary cases, we will let prisoners go. But at the end of the day, the virus does not respect how long the person is likely to be imprisoned. The virus just sees people who are huddled together and it spreads. Now, I do not see the logic of keeping people in prison, not giving them bail and putting them at risk of catching the virus. And then letting them die without even a determination of innocence or guilt.

Also read: ‘Political leaders’ facing COVID-19 risk in jails: Hurriyat

There has to be a method in which the court can say that during the pandemic, you can treat them to be continually in detention, but you can release them to be with their families. Those methods can also be evolved, but they have not been done.

V. Suresh: The first thing that we need to acknowledge is the irony in our criminal justice system. To put it as an aphorism, one can say that the law defines offence, but the state defines offender. The law may say that a particular offence will come under the UAPA or will constitute a terrorist offence or a seditious offence. But it is not merely what the law says; it is what the state determines through the arm of the police. When the state defines the offence, that’s when the mischief comes in. We saw that selective interpretation of who an offender is during the Delhi violence last year. Unfortunately, the reality is not taken into account by the courts who know very well the poor conviction rate in UAPA and sedition cases.

Let’s look at the conviction rates as per the NCRB [National Crime Records Bureau] report of 2019. The conviction rate for the UAPA shows a very low 3.1%. If you take earlier laws like TADA [Terrorist and Disruptive Activities (Prevention) Act], it was 1.4%. POTA [Prevention of Terrorism Act] was relatively better, but on the whole, we have abysmal conviction rates. These conviction rates in many cases are poor not because the investigating officers goofed up but because these offences often did not actually take place, they were cooked up.

As Mr. Hegde mentioned, the process itself is the punishment and in PUCL [People’ s Union for Civil Liberties], we have been arguing that if you let people out on bail, that itself will reduce the harshness of many of these laws.

Now, in a context like COVID-19, there has been a classification of prisoners into those who are facing a sentence of seven years or less, those who are facing a sentence of more than seven years and those who have been convicted under special laws like the UAPA. This classification was made by a committee set up by the Maharashtra government and it recommended that only the first category can be eligible for release, to decongest the prisons.

This categorisation defies common sense. When you have such a low conviction rate, what is the justification for keeping people inside for long periods during the pandemic when they are at the mercy of the prison administration?

This was challenged in the Bombay High Court by the NAPM [National Alliance of People’ Movements] and went up to the Supreme Court as well, but the classification of prisoners was upheld.

Now, the latest order of the Bombay High Court in a PUCL application before it records that 241 prisoners tested positive. Another worrying fact is that a number of jail staff, too, have tested positive. So, when you look at it from any which angle — jurisprudential, political or humanitarian — there’s no justification for keeping these prisoners in jail for such long periods. The courts have also recorded the fact that 95% of the people who were let out on interim bail had reported back when the situation had improved in January this year. So, there’s no reason why these prisoners should not be out on bail.

Dr. Suresh brings up an issue here, that in India and globally, prisons are considered hotspots for the virus to spread. There have been numerous instances in which the courts have noted that there is an overcrowding of prisons. Have any reforms or solutions to this problem been advocated?

Sanjay Hegde: The courts can pass orders but the responsibility for implementation lies with the administration. And if the administration doesn't implement it during a pandemic, it is hardly likely that there will be material before the courts to pull up the administration in contempt or anything like that.

To the best of my knowledge, all that the administrations have been doing is trying to decongest prisons, but this by itself is no guarantee against infection. We have no idea about prisoners’ vaccinations. The congestion still continues because even if people are released on bail or parole, many are unable to meet bail conditions, for instance.

The point is that unless the administration as a matter of policy really looks at all these prosecutions that it has launched and says, okay, where there are no repeat offenders, where the offences are relatively marginal, where people have spent a year or two in prison, it is better to just close the file by withdrawing the prosecution, or accepts plea bargains from the prisoners, so that they can be released into society and into the slightly better safety that the outside world affords, what they’re essentially doing is allowing the possibility of small sentences to degenerate into a sentence of death within the prison walls.

V. Suresh:  Look at what happened with the case of Sudha Bharadwaj or Siddique Kappan, both very well-known cases. Sudha Bharadwaj was said to be COVID-19 negative but she fell very ill over the past couple of weeks. Kappan, who tested positive for COVID-19, was shifted from a U.P. jail to Delhi because of the Supreme Court. And even before the order had been worked out, the U.P. police took him back, right under the nose of the Supreme Court. Now this shows the type of disdain that the executive has towards even the Supreme Court.

In the case of political prisoners, nobody from outside can go in, there is no communication from inside coming outside. So, if at all you get to know what the situation is outside, it’s more by accident than by a system in place, which makes it all the more important for us to open up these jails. Otherwise, you will only have a sense of casualties which will add to the number of COVID-19 deaths. What’s the point in talking about it in a post-mortem manner when you could have very easily ensured that there is better care for these prisoners? The examples of Sudha and Kappan are only examples; there are probably numerous other examples in other States which are never heard about — Jharkhand, Chhattisgarh, Bengal, Karnataka, Andhra, and various other States. I think we need to really focus on many of these States because we don’t get to know what’s happening there.

V. Suresh, is National General Secretary for the People’ Union for Civil Liberties; Sanjay Hegde, is Senior Advocate, Supreme Court of India

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Printable version | Jun 18, 2021 9:21:55 AM |

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