Mandela Day and ‘correctional facilities’

Since 2009, the world community has been celebrating July 18th as Mandela Day in the memory of the leader who fought to end brutal apartheid and stood for truth and reconciliation instead of retribution and retaliation. In order to commemorate the long term of 27 years served in jail, the UN’s Rules of Minimum Standards for the prisoners were named after him in 2015.

Our political leaders too carry a legacy of incarceration, both in the pre- and the post-partition periods and on coming to power they had been alive to the condition of prisoners. Building new prisons to overcome overcrowding and increasing the budgets had been among the reforms, but, without any significant improvement in the condition of the prisons and the prisoners. Therefore, here the problem is not as much of the neglect from the government as a need of radical changes in the whole system which is rotten to the core and setting the priorities right e.g. is it necessary to build more prisons to address overcrowding or to find alternatives through legislation and delegated legislation; is correction of convicts has to be based on the presumed model of deterring punishments or better training at social reintegration etc.

The observations of the classic Stanford Prison Experiments are easily generalizable across the globe and our prisons are no exception, the only variable here may be the intensity and extent of the abusive behavior of the prison staff and the depressive condition of the prisoners.

These experiments have often been criticized by the academics for their ecological validity and the selection bias but in our environment where the existing prisons are not successors of the colonial prisons, but a direct continuation, even if the ecological validity is removed, the results can safely be presumed to be capable of revealing even darker side of human psyche. Abu Gaharaib and Guantanamo Bay prisons are not the relics of history but very recent indictments of the world conscience testifying to the fact that when the prison administrations are allowed to operate independently, beyond public scrutiny, and are left to the conscience alone, the results may well be unconscionable.

Once commenting on the prisons under the apartheid regime, Nelson Mandela observed, “But all of us do know that it was a prison system with no room for human rights, one designed to rob each prisoner of his human dignity and which thereby in the end also took away the human dignity of the prison authorities and personnel themselves”. This was true in South Africa, was proved true in the Stanford Prison Experiments and is still true for our prisons today.

The first rule of the Minimum Standards, to which we are a party too, is about the dignity of the prisoners as human beings and how under no circumstances this dignity shall be violated.

Isn’t the dignity of the prisoners the first victim of our criminal justice system and the so-called correctional facilities? From the day a prisoner, whether convict or an under-trial prisoner enters the prison, he is made to realize that he holds no respect and dignity as a prisoner.

This cruel and degrading treatment starts right from the humiliating manner of search where the prisoner is frisked and the insensitive hands pass over whole of his body leaving out no part and that too in full view of the fellow prisoners queued for body-search. Similar, shameful practices continue throughout the day in order to mortify the prisoners and when the hapless prisoner lies down on the bare floor in the night, as the mattress is allowed to the prisoners in the better class only, his ordeal for the day does not end, since our prisons are overcrowded and fans available on the discretion of the prison higher authorities only (mind you no mention of air coolers in the prison rules so those are simply out of bounds for the prisoners), so the prisoner may not even catch a moment’s sleep due to pressing heat and the insects bites due to sleeping on the floor. No one seems to realize that merely taking away the liberty of a person is in itself so much of a punishment that devising innovative methods of punishment are not required. Every prison has got a punishment block where the prisoners deemed to be violating any of the rules of the prison are kept. This is a place where in a cell meant for three persons, seven to eight persons are kept, who cannot lie down or stretch their legs and fall asleep while sitting. These prisoners, undergoing punishment within punishment, are deprived of all the paraphernalia of a human existence like their plates and glasses, as part of their punishment. These cruel and degrading practices were adopted by the White colonizers to strike terror in the hearts of the “savages” in order to deliver the white man’s burden effectively. It was deemed appropriate that theses “brutes” shall be treated by demeaning and demonizing them and making harsh prison rules for their confinement wherever and whenever required by the “administrative expediency”, a term which in fact means the whims and caprices of the jailers. Now the prisons administration is a provincial subject, and with little difference, the prison rules in all the provinces are the same and derive most part of their significant definitions from the Prisons Act, 1894 and the Prisoner’s Act 1900. It may surprise many that merely looking into the eyes of the Superintendent during his visit of the prison makes a breach of the good conduct by the prisoner and is sufficient justification to get punished for this “disrespect”. Rule 940 of the Prison Rules empowers the Superintendent to “enquire into and adjudicate upon all prison offences and breaches of discipline, and to punish those who are found guilty of committing any prison offence or breach of discipline”, and when you see the list of the prison offences under Rule 572, it makes acts like “showing disrespect to any prison officer” (a very subjective clause) to assisting any fellow prisoner in tasks allotted to him, all amount to prison offences.

Despite a number of reform committees since 1950 when the task was first undertaken in the newly created state, these prison rules, which are quintessentially colonial, and also against the constitutional protections available to all citizens, have been allowed to stay in black and white. Who does not know that that the prison staff does not need any special sanction or blessings for their excesses through these statutes and rules. This only serves to protect their brutal behavior if any case surfaces where the excesses committed routinely even exceeds the “routine”.

If these violations of the dignity of person are carried out with full immunity as part of the culture and tradition of the jail administration, then what use is ratifying the Minimum Standard Rules. Are all these ratifications of international human rights treaties and conventions only to win a GSP plus status and for no more? Do commercial interests trump all human considerations?

In our prisons a very superficial differentiation is made between the convicts and the under-trial prisoners, therefore, the same harsh treatment to the under-trial prisoners as to the convicts amounts to advance punishment which is against all norms and principles of justice and fair play. This is a different debate altogether that why the discretion to grant bail needs to be exercised generously and the relevant laws interpreted liberally to avoid the miscarriage of justice, so the argument here would be limited to pointing to the fact that the overwhelming majority of population in the prisons is those of under trial prisoners. By releasing the under-trial prisoners, deciding on case to case basis obviously, overcrowding can be eased without employing new resources which are already deficient in any case. Similarly, the practice of probation needs to be restored for the convicted offenders in order to socially reintegrate them besides solving the problem of inadequate space in the prisons. And also the remissions earned by the prisoners on account of good conduct, attainment of an educational certificate, or announced on national days and other religious festivals shall be allowed as per historical practice and recorded carefully to release the prisoners detained without any ethical justification.

The writer is a researcher in human rights and gender and a civil liberties campaigner