No curbs, let prisons be an open book affair

Recently, the government of India issued instructions to all state governments on visitors to prisons. It expected the states to implement them scrupulously. The context of the order, the government maintains, is that recently private individuals and documentary makers accessed prisoners unauthorisedly or have misused permission for their own benefit.

This is with reference to Leslee Udwin’s film “India’s Daughter” and the controversy it generated. Hence, it justifies these guidelines for granting permission to individuals, press, NGOs and documentary filmmakers for the purpose of writing articles, filming interviews and for any other similar research purpose.

The context cited for giving orders has least relation to the range of issues covered or the access is restricted. The nature of issues covered and the ways the access is restricted makes it not guidelines but instructions. What ought to be followed thoroughly cannot be guidelines.

The order instructs that no one interested in reporting, research and documentary should be accorded permission to visit prisons. Firstly, the permission would be only for the purpose of creating positive social impact. The researchers would be allowed only if their work is related to prison reforms. And the press is permitted only to cover the official events. There are few exceptions to these rules. But the restrictions are fundamental and their relaxations are exceptions.

The government wants to determine the outcome of articles, research and documentaries. It does not want any outcome that is against its image or of prisons. The press and researchers should portray only what is shown in the name of prison reforms. Don’t the people have the right to know what exactly is happening behind closed doors of these public institutions? Is not the suppressing of negative outcome detrimental to the rights of people and justice?

The essence of the order is that the government wants us to see what it wants us to see. In the process, it is not just the content of investigation that is determined in advance. The process of accessing permission itself is made beyond the means of any ordinary citizen or media, if the states are going to implement them seriously. 

Application for permission must be submitted before 30 days by ordinary citizens, and in case of press before 7 days. They have to pay Rs one lakh as security deposit. The permission would be granted only to see the prisoners at the visiting area and not inside the prison. This means the prison practices, as such, are barred from the sight of the media and researchers. The documentary makers and researchers are to take ‘no objection certificate’ from government before releasing and publishing them. Otherwise they would forfeit their security deposit.

No longer will Sheela Barses be able to bring out the horrors of prison life. The horrors, succinctly coined by the apex court as ‘crime of punishments,’ will go unreported. The prison superintendent and his superiors will play the role of police, research supervisors, censor officers, editors and judges. These roles are in addition to the existing roles of jury, judge, executioners of prison life and finally, reformers of the souls of offenders.

Can anyone imagine any other public institution where so many forms and separation of powers collapse into one? Even a cursory judicial scrutiny will dismiss the instructions of government as untenable. 

The nature of the custody of citizens even for 24 hours is such that the apex court had to lay down a series of guidelines in D K Basu case. The rights of the accused to contact his family, doctor and lawyer and produced before the magistrate found their expression through judiciary and became part of law. These rights are expressions of deep distrust on the powers of the state and they won’t become irrelevant once the accused moves into judicial custody.

No judicial supervision

Prisons as judicial custodies are not functioning under direct vigilance of judiciary. The overburdened judiciary is unable to monitor them closely. Prisons are devoid of judicial supervision that judicial magisterial enquiry, mandated by parliament in 2006 under section 176-1 (A), is yet to be honoured by any state. This is despite thousands of custodial deaths recorded. Prison manuals and their practices are not even subjected to judicial scrutiny.

Since prisons are a state subject, they have been resisting interventions into prisons by the Union government. The latter could not succeed in forcing the states to legislate on model prison acts and manuals. The state governments, however, may not resist the present order as it strengthens their power of unaccountability.

Prisons began as closed institutions and have remained so since forever. It is like a curse that no regime of any ideology, colonial or otherwise, is able to transcend. They are synonymous with order of society. Their existence is as fundamental as craving for retributive justice. All conflicts, public or private, are invariably to end there. They thrived themselves despite sweeping changes in many spheres of public life. Their capacity to resist the change is unparalleled.

Nobody will contest the assumption that prisons are public institutions. Neither would anyone dismiss the argument that scrutiny is fundamental to all public institutions. Yet the government’s repeated attempts to insulate them from scrutiny go unnoticed. Imagine such an attempt on any other public institution? What could explain judicial indifference to such orders except that they are soothing to our sense of public insecurity?

The fundamentality of prisons also lies in them being instruments of assuaging public craving for retribution even without convictions. How else can we explain the fact that largest majority in prisons are undertrials? The latest order is nothing but continuation of this legacy.

(The writer is Faculty at the Tata Institute of Social Sciences, Mumbai)