Comment

The last straw is being further disabled

Jay Manoj Sanklecha 02 December 2020 00:02 IST
Updated: 01 December 2020 22:57 IST

Denying a prisoner with disabilities his recognised rights is a legal wrong and a display of a lack of compassion

There has been much outrage expressed over the denial of a sipper and straw to Father Stan Swamy. Father Swamy, the 83-year-old activist who suffers from Parkinson’s disease, was arrested by the National Investigation Agency (NIA) in October for his alleged involvement in the 2018 Bhima Koregaon violence and charged under the draconian Unlawful Activities (Prevention) Act, 1967. Lodged in Mumbai’s Taloja prison, Father Swamy reportedly made an application to be provided with a sipper and straw, as he was unable to hold a glass, a request which was inexplicably deferred for 20 days, only for the NIA to inform the court that it did not have a straw and sipper to give to the incarcerated octogenarian.

The court has now posted the matter on December 4, seeking a report from the jail authorities on allowing Father Swamy to receive a straw and sipper at his own cost. However, there are subsequent reports that have emerged that Father Swamy has been provided with a sipper and straw by the jail authorities. Nevertheless, given Father Swamy’s allegations, a fuller examination is merited by the court.

If Father Swamy’s allegations are true, the above events, apart from demonstrating the insensitivity of legal procedure, outline another fundamental issue — that of the rights of prisoners with disabilities. While incarceration itself is not easy, it is significantly more difficult for persons with disabilities.

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Given the nature of overcrowded and underfunded prison environments, the difficulties persons with disabilities face in society are exacerbated in prison. It is precisely for this reason that both international and domestic laws recognise and protect the rights of disabled prisoners.

Rights upheld by laws

Under international law, the UN Convention on the Rights of Persons with Disabilities (CRPD), which applies to all persons with disabilities including detainees and prisoners (https://bit.ly/3fVuNdY), and to which India is a signatory (https://bit.ly/37ln5pH), imposes a positive obligation on authorities, including prison staff, to ensure that prisoners with disabilities are on an “equal basis with others, entitled to guarantees in accordance with international human rights law” and are “treated in compliance with the objectives and principles of the convention, including by provision of reasonable accommodation”.

The obligation encompasses the provision of auxiliary aids relevant to the disability to secure the inherent dignity of the prisoner to enable them to live independently and participate in all aspects of their daily lives. In cases where such provision is not made by prison authorities, it may amount to a breach of a state’s obligation to “prevent persons with disabilities... from being subjected to torture, cruel or inhuman degrading treatment or punishment”.

These obligations under the CRPD are complemented by the provision of Article 10 of the International Covenant on Civil and Political Rights, or ICCPR (https://bit.ly/33yQDyR). The Nelson Mandela Rules (https://bit.ly/37mZUex), approved by the UN General Assembly through a resolution in 2015, on the standard minimum rules for the treatment of prisoners, also requires that the prison administration “make all reasonable accommodation and adjustments to ensure that prisoners with physical, mental or other disabilities have full and effective access to prison life on equitable basis” (https://bit.ly/3qrqMmu).

Apart from the constitutional guarantees under Articles 14 and 21 of the Constitution available to persons with disabilities, there is specific Indian legislation on the subject.

The Rights of Persons with Disabilities Act, 2016 (https://bit.ly/3muVI2S) enacted with the object of giving effect to the CRPD, also requires that persons with disabilities enjoy the right to equality, life with dignity and respect for integrity equally with others; they are not to be discriminated against on the ground of disability, unless to achieve a legitimate aim. The Rights of Persons with Disabilities Act also enjoins the state to take necessary steps to protect persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment; and take necessary steps to ensure reasonable accommodation for persons with disabilities.

While the Rights of Persons with Disabilities Act does not specifically provide for persons with disabilities who are incarcerated, given the object of the legislation to give effect to the CRPD, it would even encompass prisoners. It is important to note that the Rights of Persons with Disabilities Act explicitly recognises Parkinson’s disease as specified disability in its Schedule.

Injustice magnified

The denial of aids such as a sipper and straw to Father Swamy in prison to deal with his neurological disability is arguably inconsistent with both domestic and international law. (There are reports of lawyers having arranged for sippers and straws for him.) The injustice in Father Swamy’s case is magnified by the fact that he still awaits trial. The fundamental tenet on which Indian criminal law operates is that an accused is presumed innocent until proven guilty. In the event the prosecution is unable to prove its case, the damage to Father Swamy’s health will be irreparable. While his guilt or innocence is ultimately a matter for the court to decide, the denial of his rights by the justice system not only constitutes a legal wrong but also displays an absence of compassion. It is the absence of compassion that ultimately corrupts the decency of any society.

Forgotten ideal

In his excellent memoir, Just Mercy: A Story of Justice and Redemption, Bryan Stevenson writes that the true measure of a society’s commitment to justice, the rule of law, fairness and equality, cannot be measured by how it treats the rich, the powerful, the privileged and the respected. But that the true measure of a society’s character is how it treats the poor, the disfavoured, the accused, the incarcerated and the condemned. It is time for the Indian justice system to stand up to this ideal.

Jay Manoj Sanklecha is a lawyer specialising in international law. The views expressed are personal

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