Published On: October 5, 2021 at 14:31 IST
Introduction
Intimidation, harassment and violence have no place in a democracy.
Mo Ibrahim
Harassment, the word is generally known as if someone is abusing, insulting, or otherwise harming you on a regular basis. Harassment is a word that describes any kind of ongoing torment. At school, harassment is often known as bullying. According to the laws of different countries, harassment is seen as an offence and is also punishable under the laws.
Harassment is a an illegal behavior towards a person that causes mental or emotional suffering, which includes repeated unwanted contacts without a reasonable purpose, insults, threats, touching, or offensive language. Hence, by this we came to know that harassment is of three types:
- Verbal/Written
- Physical
- Visual
In legal terms, the term Harassment is a form of discrimination. These are the behaviorsthat appear to be disturbing, upsetting or threatening. It brings out a kind of humiliation, fear or degradation. And when it is inside the prison, it gets to be unbearable for the victim. The cases of physical and mental harassments have been on its peak recently, as they are also a part of the society.
Indian Prisons and Harassment
Prison is one of the institutions of the society which serves as a reformative place for the one who does not abide by the law or creates distress in the society. And it doesn’t need to be clarified that crimes do exist in prisons as well especially the physical one[1]. In general, prisons provide four primary functions-Retribution, Incapacitation, Deterrence and Rehabilitation.
Life is a killer, both psychologically and physically, in the dark and dank cells of Indian prisons. Some people choose or others are pushed to it. Life in prison is itself rigorous and these harassments and heinous acts done to them adds more to their sufferings and renders themselves to such situations where they find themselves hopeless and exploited.
Indian jails are notorious for their poor conditions. To obtain information or confessions, beatings and torture are commonplace. Custodial Rapes and sexual assault are two of most under-reported and under-discussed issues. But they are a serious and active matter about which everyone must be aware of because “Justice is for all and all should have access to justice.”
Violation of Fundamental Rights
Due to domination and power of police officials and their political contacts, the prison rape cases, and the sexual assault cases even fail to come into the limelight. Some are not reported and some are not attended or been suppressed by the authorities. The already brutal dungeon life became a non-livable place when such heinous acts are being inflicted on the prisoners.
Article 21 that is right to life and right to live with dignity that our constitution provides to every person in any circumstances, the right is seen to be suppressed and is rarely implemented in case of prisoners. They are behaved like non-humans which is a stigma on the Indian democracy. Also, the right to equality under Article 14 is also infringed. In here, prisoners are kept separate and some even get failed to get access to justice. This shows the failure of implementation of laws in the country.
Moreover, in case of D.B.M. Patnaik Vs State of Andhra Pradesh[2],it was established by the apex court that the mere detention does not deprive the convicts of all the fundamental rights enshrined in our constitution. Also, in case of Hiralal Mallick Vs State of Bihar[3], the court held that a person is legally in prison does not prevent the use of Habeas Corpus to protect his other inherent rights. But still the position has not been improved.
The prisoners are not even accessed to the basic fundamental rights provided by the constitution of the country. Adding this, it is seen that cases of physical harassment inflicted on men is rather more than against women but sorrowfully our penal laws do not recognize rape against men.
Not only rapes and sexual harassment, various kinds of tortures like beatings, electric shocks, burns, suffocation, stretching assaults etc. all are covered under the physical harassment and have been seen to be inflicted on the prisoners in the jails.
Enactments and Rules for the Prisoners
Other than the fundamental rights provided by Constitution of the country[4], various acts in India have been enacted for the regulation of prisons and providing the prisoners with the protective and good conditions and to deal with the rights of the prisoners.
- The Prisons Act, 1894
The Act was the first legislation regarding prison regulation in India. These are some of the important provisions regarding prisoners’ rights. They talked about the accommodation and sanitary conditions for the prisoners, provisions relating to mental and physical state of the prisoners, examination of prisoners by qualified medical officer, to provide separate prisons for male, female, criminal, civil, convicted and under trial prisoners. It also mentioned about provisions for treatment of under trials and many more.
- The Prisoners Act,1990
The main provisions established under the Act was that it is the duty of the government for the removal of any prisoner detained under any order or sentence of any court, which is of unsound mind to a lunatic asylum and other place where he will be given proper treatment. Hence, the Act was brought forward for the lunatic persons and their protection and treatment.
- The Prisoners (Attendance in Courts) Act 1955
This Act contains provisions authorizing the removal of prisoners to a civil or criminal court for giving evidence or for answering to the charge of an offence.
Hence, these are the various legislations made by the Indian government to regulate the conditions and health facilities and protecting them from unwanted lusts and harassment within the prisons.
Provisions against Harassment in Indian Law
Every act done against the will of a person, is done without the consent and any such act without the consent of that person who further harms him, is considered to be wrong in the eyes of law and harassment behind the bars is one of those offences.
Indian laws generally provide with punishments in the Indian Penal Code, 1860 that generally deals with most of the offences. Also, there are various provisions present there for the case of harassment as well as jail harassment. But here we are going to read about the case of jail harassment only.
Section (2)(a) says about the harassment or sexual abuse of a woman in the police custody mainly. It writes that a police officer is said to have committed rape against a woman, if the woman was present within the limit of the police station of which police officer is appointed or the woman was within the premises of that station or if the woman was in custody of the police officer or a subordinate police officer who was under that police officer who was under that police officer;
Also, Section 376(2)(d) specially deals with the case of rapes or sexual harassment behind the bars. It writes that whosoever, being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape or any inmate of such jail, remand home, place or institution, shall be punished with rigorous imprisonment for a term minimum of ten years and maximum of life imprisonment, which shall mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine.
Also, Supreme Court has now restricted the use handcuffs by the directions which was once a common practice in the country. It is also seen to a gesture of harassment as well as questions the person’s dignity as per given under Article 21.
As a conclusion, we can say that the provisions of Indian Penal Code deal with harassment or sexual harassment or torture mainly to the woman. It does not provide any specific provision or section for the men or people belonging to LGBTQ under (Section 377 of Indian Penal Code), who are under great threat. And moreover, no protection is provided to them behind the bars.
Scenario of Delhi Riots 2020
Jail Harassment and its cases have been in hype in recent times. Even the laws for prisons have been made strict and proper rules and regulations have been made to maintain the jails. Prisoners have been given proper rights but not exercised practically.
While appearing before a Delhi Court via video conferencing in 2020, MBA graduate Gulfisha Fatima, accused in the conspiracy case related to Delhi riots, said she was facing mental harassment inside Tihar Jail. The hearing took place after the court had directed all the accused to appear before it is following filing of a chargesheet by the police in the conspiracy case.
She said, “Ever since I was brought here, I have been facing discrimination. They called me an ‘educated terrorist’…”, said Fatima during the hearing that took place before additional sessions judge Amitabh Rawat. Then the judge directed to take immediate steps to ensure that she was not harassed further for bringing her complaints before the court[5].
The case of Mohammad Amir Khan
Mohd. Amir Khan, a resident of Delhi was picked up by the police on February 20, 1998 and a person who was kept in prison without bail for 14 years as an under-trial and was acquitted in 2012. In his interview, he even condemned police authorities to torture him brutally. He even was faced 3rd degree torture in the police custody and was kept for 7 days illegally and moreover unknowingly that they were policemen.
He was the main accused in 20 low-intensity bomb-blasts between Dec 1996 and Oct 1997 in Delhi and adjoining areas[6]. Even after his release, his fear from even the darkness and police uniform has never got out of his mind and consciousness. The brutal story made him to write his book “Framed as Terrorist”.
The whole story shows the level of brutal assault and harassment that a victim may face in the jails even on the basis of accusations only. The court has compensated him with Rs. 5 lakh which can never actually reimburse for the torture and harassment he faced within those 14 years.
P. Jayraj and Benniks Custodial Death
In Tamil Nadu, a son and father were taken under under police-custody in 2020, and within a week both of them died one after another. Even the matter was given to CBI for further investigation. It was alleged that both deaths have been occurred after beatings by police personnel.
The CBI re-registered the case under Indian Penal Code Section of custodial death[7] with suspended offences to be ‘illegal detention, murder and destruction of evidence’. The case evoked strong criticism from political parties as well as the civil society members who said it was akin to George Floyd[8]incident in U.S. It also triggered the demands for police reforms in the country.
The findings were based on a statement from a woman police personnel attached to the police station where the alleged crime took place. To press the matter, she even feared threats if she revealed the facts. In this case, it can be concluded that not only jail violence and harassment prevails, but also it may lead to destroy the life of those who take steps ahead to bring the matters in the lime-light.
Case Laws
- Sunil Batra Vs Delhi Administration[9]
Writ of Habeas Corpus available to the prisoners
The court held that the fact that a person is legally in prison does not prevent the use of Habeas Corpus to protect his other inherent rights
- Prem Shankar Shukla Vs Delhi[10]
No Handcuffing available anymore
In this case the court held that no person shall be handcuffed, flattered routinely for convince of the custodian’s escort.
- Hussainara Khatun Vs State of Bihar[11]
Reforms of prison
The court adopted a dynamic and constructive role with regard prison reforms. Court apart from other things stressed on the improvements of the conditions of the prisons in India.
- Dastagir Vs State of Madras[12]
Interpretation of Article 21 in case of custodial harassments
While interpreting the meaning of Article 21 i.e. right to life and personal liberty in the case of custodial violence and harassments, the court said that a punishment which has element of torture is also unconstitutional in nature.
- Inderjeet Vs State of Uttar Pradesh[13]
Rights against torture
In the following case, the Apex court was of the view that prison restrictions amounting to torture , pressure or infliction and going beyond what the court authorities have mentioned, are unconstitutional further it extended that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint, which is not warranted by the punishment awarded by the Court, or which amount to human degradation.
Conclusion
A person is sent to the prison for the punishment of the crime committed but that doesn’t mean that any type of behavior or torture can be inflicted upon him. The law defines different punishments for different offences and anything more than that would be inhumane. The jail is needed to provide a safe environment to all the prisoners and justified punishments.
Moreover, even after various steps taken, the jail authorities are regularly accused of harassment in the country. Hence, reforms are needed to be taken for the proper regulation of the decorum of prisons. We need to know that everyone has right to justice even if he is a prisoner, hence, a psychology has to be made that they are humans too.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Reference
[1] JAYRAM SWATHY, “Rights of Prisoners”, (Last visited on September 29th, 2021)
[2]D.B.M. Patnaik Vs State of Andhra Pradesh, AIR 1974 SC 2092
[3]Hiralal Mallick Vs State of Bihar, AIR 1977 SC 2237
[4] TNEC NEWSDESK, “What happens behind the bars? Rape and sexual harassment in prisons of India”, (Last visited on September 29th,2021)
[5] “Delhi Riots | Ishrat Jahan alleges in court beating, harassment by jail inmates”, (Last visited on September 29th,2021)
[6] SAURABH TRIVEDI, “Thrown in jail for 14 years on false charges, man gets Rs. 5 Lakh”, (Last visited on October 2nd,2021)
[7] “Jayraj-Fenix custodial deaths: CBI takes over probe into torture and killing of father-son duo”, (Last visited on October 2nd,2021)
[8] “How George Floyd was killed in Police Custody”, (Last visited on October 2nd, 2021)
[9]Sunil Batra Vs Delhi Administration, AIR 1978 SC 1675
[10]Prem Shankar Shukla Vs Delhi, AIR 1980 SC 1535
[11]Hussain Ara KhatnVs State of Bihar, AIR 1979 SC 1377
[12] Mohammad Dastagir Vs State of Madras, 1960 AIR (SC) 756, 1960 (66) CRLJ 1159,1960, SCJ 726, 1960 (3) SCR 116
[13] Inderjeet Vs State of Uttar Pradesh, 1979 AIR 1867, 1980 SCR (1) 255, 1979 SCC (4) 246