Laxmi (44) has been a prisoner at a Haryana jail, for the past five years. None of her family members have visited her since she was convicted and sentenced to life imprisonment. She occupies, what is considered to be, the ‘best’ spot in the convicted prisoners barrack. Her bed is located beside a window, close to the washrooms. Although Laxmi is completely unaware of why she gets to hold this sought after ‘spot,’ the truth is far from pleasant. All the other inmates can not bear sleeping close to Laxmi because the thin cotton bedding she lays on all day perennially stinks of urine and sweat. Since her childhood, Laxmi suffers from severe physical and mental disabilities. She cannot communicate coherently and needs assistance to eat, get dressed, bathe and use the bathroom. She has been provided no specific medical care or assistance from the jail authorities and she is completely at the mercy of her barrack mates who voluntarily take turns in assisting Laxmi throughout the week.
But what if she loses the support of her fellow inmates? What if Laxmi’s inactivity and isolation from the world within and outside the prison aggravates her depressive state? What if her unsupervised and unhygienic living conditions worsen her disabilities? Who will then bear her responsibility?
All human beings are eligible to claim their Right to Dignity and their Right Against Cruel and Degrading Punishment, guaranteed under Article 21 of the Indian Constitution. In compliance with the standards set out in constitutional jurisprudence on this matter, the offense for which the person has been convicted is immaterial. The standard is clear. No person shall be subjected to degrading, inhuman or cruel punishment which challenges human dignity. The duty of exercising care and discretion then acquires paramount importance during the pre-trial stage. These standards are applicable in all custodial situations, to all persons, irrespective of caste, sex, race, religion, or place of birth.
In the early 1980s, the Veena Sethi case brought to light concerns on the treatment of prisoners with mental illnesses and their prolonged periods of incarceration which ranged from 16-30 years in custody without awarding them substantive relief from illegal custody and assistance in terms of transport, sporadic medical attention and food expenses till the end of their term in prison. However, this was long before there existed a political consciousness of the rights of persons with disabilities, which additionally includes civil and political rights. What needs our immediate attention is even more fundamental: As a person with disabilities, who requires constant assistance and support, what are the minimum standard rules which must influence the decision to take him into custody? What are the measures that need to be incorporated so that the treatment meted out to a disabled prisoner is not construed as cruel, degrading and inhuman?
India is a ratifying signatory to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) wherein, specific protections for persons with disabilities in relation to state custody are described under Article 15(1) stating: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Additionally, Article 15(2) of the Convention places an obligation on the state to protect persons with disabilities from cruel degrading or inhuman treatment and punishment states that “State Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
The norm of substantive equality, well established in the Constitution of India, promotes the principle of equality, which specifically includes special treatment of persons with vulnerabilities. The denial of special provisions, appropriate assistance and specialized health care access to a person with disabilities in custody, who uses a wheelchair and has special health care needs arising from chronic illness, comes firmly within the meaning of degrading, inhuman and cruel treatment and implies derogation of state obligations under the UNCRPD.
Particularly, where a prisoner with disability requires support and assistance for a daily living, placing such a prisoner in solitary confinement and denying him the right to accessible facilities of personal care and hygiene is a violation of the right to dignity and bodily integrity — both guaranteed under Article 21 of the Constitution and also under Article 17 of the UNCRPD. The latter pertinently states “Every person with disabilities has a right to physical and mental integrity on an equal basis with others.”
Categorization of the most vulnerable prisoners inside prison:
Mentally ill prisoners:
As per government orders, mentally ill prisoners are sent to a facility, specially set up for the treatment of such prisoners. Provisions under Section 30 of the Prisoners Act, 1900 and the Indian Mental Health Act, 1987 are taken into consideration while treating mentally ill prisoners. Prisoners declared insane are assigned a mental hospital, while mentally ill prisoners who aren’t certified as insane are sent to central jails. Prisons also provide special facilities for prisoners with severe illnesses like leprosy and tuberculosis.
A number of elderly persons are left forgotten in prisons for years and are at the mercy of the system. The Inspector General may use his powers to recommend premature release, under the provisions of Article 161 of the Constitution of India, in cases which involve an aged convicted prisoner with serious infirmity, decrepitude, complete blindness or an incurable disease, who is permanently incapacitated to commit further crime and in whose case no social purpose is likely to serve by further incarceration.
Terminally ill prisoners:
The Inspector General may use his powers to prematurely release a convicted prisoner, suffering from a disease likely to prove fatal if left in jail or has reasonable chance of recovery if released and also in cases when a convict has no chance of recovery.
Sickness during imprisonment:
If a prisoner suffers from some kind of illness while serving his term, he should immediately inform the officer in-charge to make arrangements for the prisoner to seek the opinion of the prison’s medical officer. Each admission and discharge from the prison hospital is recorded on the prisoner’s history ticket along with details of his illness. Instructions for any specific treatment or recommendation for change of work or diet are also to be recorded. In case a prisoner is discharged from a hospital, the medical officer needs to provide guidelines on whether he can resume working on the tasks assigned to him in prison. Prisoners who become seriously ill may be released from prison on bail. The Superintendent or Assistant Jailor is required to send a report and a medical statement to Court for the consideration of the Judge. And finally, if a prisoner is anticipating a court order and he requires urgent treatment, The Prison Medical Officer may transfer the prisoner to another hospital or facility outside the prison premises for surgery or further treatment.
The law related to the rights of persons with disabilities which lays down the standards of treatment in clear and unequivocal terms, remains a dream in India. The absence of specific legislation, however, need not deter us from walking the path of justice. Article 14 of the Constitution that sets out the substantive right to equality before law and Article 21 that sets out the framework for the right to life (with dignity) — as it specifically applies to prisoners — should be read with the UNCRPD till the time we have implemented policies and national legislation that mandatorily provide for special services and basic needs that prisoners with disabilities might require and further allows the conditional and compassionate release of prisoners with high support needs.
Written by Ruchika Nigam. Ruchika holds a degree in Psychology and a Masters in Criminology and Criminal Justice. She has worked extensively in the field of human rights and prison reforms. Her most recent exposure has been in advocacy against sex trafficking in New Delhi, India. This story was first published on Preshti’s blog.
This story is brought to you in collaboration with Preshti, a Pune based student run NGO, that works toward restoring Prison Rights and Reforming Prison Administration in India.