The unknown Stan Swamys in our prisons

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Written by Jacob John and Devyani Kacker

We witnessed the death of Father Stan Swamy in custody in early July. Deaths in custody in India are far too common, both in police custody and custody, with more than 1,600 people dying in custody each year. Many of the deaths in custody are those of people pending trial – those who have been arrested but have not yet been sentenced. For many, their trials have not started either. Swamy’s trial had not started despite his incarceration for more than eight months. While Stan Swamy’s case grabbed the headlines, the cases of many of the people he worked for never made the headlines. Indian prisons are severely overcrowded and nearly 70% of inmates are on trial – and that number has remained the same for years across the country. Swamy’s initial protest was against the unwarranted detention of over 3,000 Adivasis in Jharkhand. Many of these prisoners awaiting trial have languished in prison for years without constitutional guarantees of a fair trial.

Despite all the appreciation India gets for being the world’s largest democracy with constitutional protections against abuse, it is criticized for its law and order and almost dysfunctional justice systems. Police can be brutal, investigations are poor, courts take forever due to long waits, and the quality of legal aid remains poor. Things seem so gloomy that an arrest (not a conviction, mind you) is being celebrated because, at a minimum, it creates problems for the accused. It also reflects a truism in our system that, for a mixture of reasons, the chances of a fair trial and perhaps a conviction are extremely low.

Incarceration should not be an option for those accused of minor offenses and prolonged detention pending trial certainly should not be an option either. Prison should only be used for those accused of serious offenses, and bail should be granted liberally when all conditions are met. Unfortunately, for a multitude of reasons, jail rather than bail has become the preferred norm.

While the “seriousness” of the crime, the risk of the accused absconding and the retention of evidence are generally used as the basis for denying bail and continuing incarceration, anecdotal evidence and conviction rates suggest. that there is much more than it seems. It is a well known fact that local power equations can be used to record a more “serious” crime against an individual. The Illegal Activities (Prevention) Act (UAPA), legislation purportedly passed to combat terrorism, is widely used against students, social activists and political opponents. The Sedition Act is used against journalists to muzzle the press, and the Protection of Children from Sexual Offenses Act, or POCSO, is used to jail young people who marry against their parents’ wishes. Bail can also be withheld to appease our collective conscience and appease a certain section of the media that a “bad person” has been sidelined – and therefore that justice has been served.

Swamy was not the only one on trial awaiting bail at Taloja Central Prison in Navi Mumbai. Taloja Prison was established in 2008 with the aim of relieving congestion in the severely overcrowded Mumbai Central Prison. The maximum capacity of Taloja prison is around 2,124 prisoners, but it now houses nearly 3,000 prisoners. During the first wave of the Covid-19 pandemic last year, when several prisons were closed, Taloja continued to take in new detainees well beyond its authorized capacity. A joint study by the Commonwealth Human Rights Initiative, Prayas – a TISS field action project – and Project 39-A, NLU-Delhi documenting the decongestion effort undertaken by prisons in Maharashtra after the lockdown of 2020 shows that Taloja prison continued to be crowded well beyond its size with 2,376 inmates, an occupancy rate of 110% despite instructions given by the Supreme Court to decongest the prisons. It is crucial to note that Taloja prison is an establishment intended to house only inmates awaiting trial. Potentially, more than half of the occupants are charged with minor or non-serious offenses for which the maximum sentence is less than 2 to 7 years. This is a theme common to many of our prisons, especially in urban centers.

Swamy was arrested and charged under several articles of UAPA, an anti-terrorism law that suspends the most basic constitutional rights of those arrested, namely the right to be considered innocent until proven guilty. According to data presented by the Union Interior Ministry in the Rajya Sabha, only 2.2% of cases registered under the UAPA between the years 2016-2019 resulted in convictions by a court. Given the low conviction rate as well as the ability to impose 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 people in prison. trial body, even in the category of “dangerous” prisoners.

Swamy’s death represents a systematic failure of our justice and penitentiary system. Prisons are overcrowded due to the unnecessary arrest of many people, slow processing of cases and low conviction rates, making prison a place of punishment rather than reform and rehabilitation. While Swamy has been (and will continue to be) in our collective consciousness primarily as a symbol of our collective failure to uphold our fair trial rights, we must also think of the many other prisoners who continue to languish in prisons. Their continued incarceration represents a failure of our democratic society and the rule of law. It is imperative that we help the most vulnerable gain access to the justice system as equal citizens – by right, not out of largesse. When these unknown Stan Swamys are no longer mere statistics, but faces seeking justice, we can say that we have fulfilled our constitutional mandate for Indian citizens.

John works on development and people issues. He is interested in the criminal justice system. Kacker is a human rights lawyer with a particular interest in transitional justice and criminal law.

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