Packed jails amid Covid-19 a blot on justice system: CHRI Sr Advisor

In a Q&A, Maja Daruwala, who is also a member of a panel constituted by NHRC, dwells on policing during the lockdown and in general, and the dismal state of the country's prisons

Maja Daruwala is currently Senior Advisor at Tata Trusts and Commonwealth Human Rights Initiative (CHRI), which is strongly focussed on issues of social justice. She was a director at CHRI for 20 years and is an eminent voice on issues related to policing and prison reform, and is also a member of a committee set up by the National Human Rights Commission to look into human rights amid Covid-19. Daruwala speaks to Shreegireesh Jalihal on policing during the nationwide lockdown and in general, and the current state of the country's prisons. Edited excerpts:

There have been multiple reports of police excesses amid the Covid-19-induced nationwide lockdown. What are your views?

The police have been asked to do things they’re unfamiliar with. It was the duty of the senior supervisory classes to ensure that before the police went out into the streets, that they were made to understand that they're assisting in a public health crisis and not sorting out a law and order problem. The police should have known right at the outset that they were assisting in preventing the spread of a disease. Instead, they’ve too often been seen using methods more suitable to handling crime, even if under the Disaster Management Act.

Regardless of whether you’re the police or the doodhwala or the Prime Minister of the country for that matter, you’re a part of one society and trying to sort out how best you can keep everybody safe. The response to that has to be reasonable and humane. While individual police behaviour has been compassionate sometimes, it is the default  institutional response that needs substantial improvement. The most extreme case that has come to light — I’m sure there are others — is the Jayaraj and Benicks double murder in Tuticorin. The father-son duo had left their shop open during the curfew. A reasonable response would have been to ask them to close the shop and ensure they comply. In my view -- and this is only conjecture -- the two sides probably  knew each other, got into an argument, tempers flared  and the police decided to teach them a lesson. That response was not a Covid-related response; it was just an excuse to do what you would normally have done before because you knew you could get away with it. This is a police station with a history. When you have allowed these things to continue for years, the Covid environment then gives you additional discretion for using your power. In many cases, that is exactly what is happening at checkpoints and borders. The first response is to beat up helpless people.

Within the establishment, I dare say, there is also distress about why this is happening. But not enough preparatory groundwork has gone into ensuring that policing is geared towards assisting the people instead of penalising them.

Police baton charge one of the migrant workers during a clash following their agitation seeking arrangements for them to return home, in Surat. Photo: PTI

Would you say there is a change in the equation between the police and the citizens now?

The little gains that the police made initially — being kind, helpful, assisting — have been lost with this terrible behaviour. Incidents involving migrant workers, the Jayaraj and Benicks case and the viral video of a cop in Uttar Pradesh masturbating in front of women have done a great deal of damage.

Worldwide, people who have come in contact with the police have a better image of them than the general public who  only go by general perception and don’t know them. The importance of that finding is that the police must allow themselves to be friendly and out-and-about with the public. My pet peeve is that in India, we have quite deliberately created a police that is far removed from the public, and in service of the ruling class. The police is part of the public, it comes from the public -- the taxpayer pays for its upkeep. Taxpayers are not paying for a privileged protected force designed to oppress them. They are paying for a public service much like the fire brigade or the postal service. Under colonial rule, the police force was separated from the public so it could be used to curb the people. Why are we still doing that? We have had 70 years to change that.  

If you see the Kerala model and you look at their legislation, they have tried to metamorphose this colonial policing into a system that’s friendlier. During the past few years, the police have participated in all of initiatives of the ground-level organisations that are available in Kerala, such as Panchayat meetings, womens’ groups and so on. They have built trust, established communication, and made themselves available to the community. Because they're integral to the community, they're also vested with its the safety. In the time of Covid, this was invaluable in getting people to listen. It was a chance for the police to become a link between government regulations and the people, and a chance to educate the citizens on what they needed to do and why.

We must also remember that we are right now looking at policing through the Covid lens. If you look at ordinary policing, as if there were no Covid, you’ll see that it’s business as usual. Just look at Assam, Kashmir, look at the Delhi riots -- selective policing, unnecessary arrests, encounters. The same illegalities and abuse of discretion is carrying on. It’s important for policymakers to use this moment to repair a great deal that was wrong before. The current moment is pivotal because it provides an opportunity for the public and the police to come together to work towards a common endeavour in an organic way, because there is a common danger facing us. This is different from trying to build relationships via artificially-created PR exercises. But in truth, I do not see that opportunity being taken.

Prisons are also emerging as hotspots of Covid-19. What went wrong and is there a solution?
 

Prisons are places where people are dumped. Prison authorities do not have the ability to limit the number of people coming in. Many do have protocols for maintaining hygiene inside the jail and screening infected people coming in. My view is that if someone coming in has fever — it could be due to malaria or tuberculosis or Covid-19 — you must not bring that person in. But there is pressure from the police and judiciary to put that person in remand. There are legislations and guidelines that restrict the right to arrest and remand, and privilege bail  over jail. But the truth is that there is too much remand, much of which is still being given for wrong reasons — ones that are outside of what is strictly required. The Tamil Nadu case is a good example of how this happens. Too many people are being picked up and detained by the police when arrest itself should be the last part of the process, not the first. Just because someone is named in an FIR doesn’t mean he is to be arrested.

Despite attempts to decongest, jails are in a horrible situation as they're overcrowded and under-resourced. Some jails have no medical personnel. The Model Prison Manual, 2016, lays down that there shall be at least one medical officer for every 300 prisoners and that in central prisons, one one doctor should be available at all times. Look at the India Justice Report. Uttarakhand had no medical officer. Barring the Andaman and Nicobar Islands, 12 states and UTs have a shortfall of 50 per cent or more medical officers. Authorities say there’s no full-time practitioner available in the jail and doctor visits are periodical. But you find doctors are very reluctant to go. Even before Covid, there was high rate of infection of skin and infectious respiratory diseases because of the over-crowded conditions in which the prisoners live. When they're locked up in barracks for 12 hours, even if the place is not crowded, and you've got one bathroom and you keep everyone so close to each other, what do you think is going to happen?

Nearly 70 per cent of all prison inmates are those awaiting their day in court. They are innocent in the eyes of the law (As their guilt has not been established yet). The rule used to be bail not jail. With all of this contagion going on, you still have courts that insist that older people, or those with pre-conditions and co- morbidities -- the kind who are unlikely to dodge confinement -- remain in jail instead of being granted bail. In my view, this is oppressive and unreasonable. It adds life-threatening dimensions to the liberty already lost.

When you have so many guardian institutions - the SHRCs, the courts, the Minorities Commission and so on — and you still have overcrowded jails, I think that is a cumulative failure of the justice system in terms of implementation and vision.