Opinion Columnists 19 Oct 2016 Thinking Allowed: Le ...
Antara Dev Sen is Editor of The Little Magazine. She can be contacted at: sen@littlemag.com

Thinking Allowed: Let’s talk justice

Published Oct 19, 2016, 12:35 am IST
Updated Oct 19, 2016, 7:21 am IST
Instead of trying to lighten the load of prisons, we seem to be interested in increasing it.
Representational image
 Representational image

This is supposed to be a true story. A lawyer was examining a witness in an unnamed American court.

Lawyer: “Doctor, before you performed the autopsy, did you check for a pulse?”
Witness: “No.”
— “Did you check for blood pressure?”
— “No.”
— “Did you check for breathing?”
— “No.”
— “So, then it is possible that the patient was alive when you began the autopsy?”
— “No.”
— “How can you be so sure, doctor?”
— “Because his brain was sitting on my desk in a jar.”
— “But could the patient have still been alive nevertheless?”
— “It is possible that he could have been alive and practising law somewhere.”

 

Somewhere in the US, I hasten to add. Don’t try this line at home — in our country brimming with brains, such smartchat could land you in jail. Courts of law take themselves very seriously in India. As they should. It’s a pity that Justice itself is not given the same respect. So we are not really shocked that the 13 young men charged for plotting terror strikes in Karnataka in 2012 have now, after spending four years behind bars pleading their innocence, decided to plead guilty. That way they get away with five years of imprisonment, of which they have already spent four years. They can be free in another year. And reclaim their life. The tag of terrorist doesn’t matter as much as the prospect of spending maybe their entire youth in jail.

 

In May, Nisaruddin Ahmed, also from Karnataka, was acquitted and released from prison after 23 years in jail on terror charges. He was 19 when he was picked up by the cops on his way to college, and thrown in jail. Now 43, he returns to his family devastated by almost a quarter century of fighting legal battles that also killed his father. There are so many like him. Mohammad Aamir Khan, who was picked up by the police in his Delhi neighbourhood on his way to buy medicines, writes his own story in Framed as a Terrorist. The 18-year-old was tortured and made to sign papers and finally acquitted after 14 years. Once slapped with charges of terrorism, getting bail is almost impossible. So we can see why these 13 young men of Bengaluru chose to embrace the stigma of being aspiring but failed terrorists, rather than miss out on life indefinitely.

 

“When undertrial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated,” said the Supreme Court. Which means the undertrial’s right to life and liberty is violated. In spite of such well-meaning pronouncements, 68 per cent of our prisoners are undertrials. A huge number of them are innocents. And most undertrials are not terror suspects. They are the poor, the marginalised, the historically oppressed, the dispossessed — unfortunate citizens of an unfortunate land trapped in a system of abuse and apathy. The rich can afford access to proper legal aid and bail, and can get away with murder. Prison doesn’t just rob you of your freedom, it very often kills you. Today, thanks to an RTI query by human rights activist Naresh Paras, we learnt that on an average one prisoner dies every 26 hours in Uttar Pradesh alone.

 

Between January 2010 and February 2016, in UP 2,062 prisoners had died — more than half of them were undertrials. Their deaths are mostly passed off as “natural” or “suicides”, and hardly ever are the police or jail authorities made accountable for custody deaths and murders. According to government records, more than 22 million cases are pending just in district courts. Our huge shortage of judges adds to the backlog — on an average we have just 13 judges for every one million people. Our once majestic system of justice now stands as a dilapidating structure weakened by lack of judges and proper lawyers, weighed down by millions of unmanageable court cases, eaten away by corruption and unforgivable delays. The police, administration, political parties regularly fail to do their part in upholding the law, and often are enthusiastic in breaking it. Our juvenile homes make criminals out of innocent children through terrible abuse.

 

Meanwhile, lawyers believe they are justice personified and have the audacity to undermine democracy by beating up journalists or throwing them out of the courts like they did in Delhi and in Kerala. Forget atrocities against the invisible people in the boondocks, even cases that have been in the international spotlight like the 1984 massacre of Sikhs in Delhi are still awaiting justice. Given this impossible situation, we need to urgently rethink our justice delivery mechanism. Is it necessary to further crowd the already cramped jails with poor people picked up from the streets for vagrancy or petty theft? Why don’t we implement Section 436A CrPC, which states undertrials who have been in jail for over half the time they would have served if convicted of the crime they are accused of must be freed? And why on earth can’t we think of justice beyond this maze of laws and police and a largely dysfunctional prison system that weighs heavy on the taxpayers’ pocket?

 

Instead of trying to lighten the load of prisons, we seem to be interested in increasing it. Now you can be jailed for forwarding a joke against a powerful leader, or for accessing a blocked website. Let’s talk of justice. Not about cops and jail and endless litigation. Just justice. There are alternative ways — paying fines by those who can afford it, or community service that Sikhs put to such excellent use. There could be public shaming, and a public apology. Lesser crimes could be decriminalised, like vagrancy, drug use or prostitution. Not only would it save the State millions in prison and legal expenses, it would also protect innocents from harassment. Not to mention reducing drug-related deaths and HIV infection.

 

Most of all, let’s talk of cultural change. About how, in our minds and social discourse, poverty is criminalised, homelessness is criminalised, certain food habits are criminalised, certain castes and religions are criminalised. Let’s talk about how we can make society safer through education, jobs, housing, healthcare, respect and dignity. Caging every “offender” can never be a solution, specially in a poor country. Let’s look beyond prisons and focus on building a more confident, more integrated and thus a safer society.

 

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