Prison fever

The writer is a lawyer and doctoral researcher.

On June 14, 2021, Saima Farhan died at the age of 35 in Central Jail, Karachi. The fact that she was surrounded by her family members as she breathed her last was scant consolation – she had died awaiting trial on the charge of murdering her neighbour, and had spent the last year and a half of her life incarcerated.

On January 10, 2022, her family members (co-accused in the same murder charges) were all acquitted, and in essence, so was Saima. She would have been declared acquitted if alive, but on account of the infinitely wise constructs embedded in our colonial criminal code, the proceedings against Saima were simply ‘abated’ – meaning, the question of her guilt or innocence was no longer relevant.

Posthumous acquittals have been occasionally announced by the Supreme Court, from time to time, in periodic passionate gestures of judicial largesse for prisoners who die while languishing under trial (or at least those whose files end up before the apex court through some twist of chance and resources). The vast majority of criminal trials in the country, however, begin and end at the threshold of the criminal courts – abatement for most simply means death in a state of assumed criminality, driven home by the accompanying fact of dying in jail, its miasma lingering long after the court files are consigned to a dusty pile in the records room.

But note: the furor and the fury surrounding Saima’s death arose only after the court announced its verdicts of the family’s innocence, which, combined with the realisation that Saima had already died seven months earlier, was condemned all around as yet another miscarriage of justice in a crumbling judicial system. That the jail authorities had neglected to ensure timely and adequate medical treatment which could have saved her (despite repeated applications by her lawyer during her trial), and that the court had eventually ordered punitive action against the jail authorities for their failure a mere two days before she died – all went unnoticed at the time of occurrence, as did her death.

Underpinning this silence at her time of death was the default assumption that incarceration is generally justified, or at least a tolerable necessity, provided that all due process requirements are followed. The fact that due process is endemically disregarded across the spectrum is a minor point – whatever cognitive dissonance one might suffer here is quickly stifled when it comes to violent crimes, like rape and murder. While the plight of under-trial prisoners is often lamented, it is always the inordinate delays that are the cause of concern, and rarely ever are the nature, conditions and fact of incarceration explored. After all, if Saima had posthumously been found guilty, she would have been a statistic, not the object of outrage splashed over a 24-hour news cycle. And there would have been no noise over the delays in her trial while her cancer slowly destroyed her in jail, let alone the fact that her death may have resulted (at least in part) from the prison authorities’ negligence.

Our conception of criminal justice has always been deeply embedded in the retributive model – this isn’t new. But at some point, it started permeating deeper, and into other spheres. Incarceration is seen not only as the means to end every evil, but also an end in itself, the ‘key performance indicator’ of social order. And in a state underpinned by internal policing as opposed to progressive welfare, it’s only inevitable that carceral thinking eventually creeps even into the most nobly intended public actions.

Take the Sindh Right of Children to Free & Compulsory Education Act, 2013. As the title proclaims, this legislation is aimed at ensuring education for all children between the ages of 5 and 16, as promised by Article 25-A of the constitution. The Act imposes various obligations on the government of Sindh to this end, including establishing schools and ensuring the maintenance of committees for monitoring compulsory school attendance.

This is all well and good, until you arrive at Section 16(6) of the Act, whereby any parent who fails to send their child to school (after receiving an order to this effect by the school management committee) can be convicted and punished with a fine of up to Rs5000 (as well as Rs500 for each subsequent day of continuing failure), or imprisonment for up to three months, or both.

The sheer absurdity of this beggars belief, especially in a country where one-third of all children between 5 and 16 are out of school mainly on account of poverty and lack of access (factors which are exacerbated much more so in the case of female children). The structural obstacles in enforcing compulsory education are complex and well-documented, and beyond this writer’s competency. But it doesn’t take a stretch to see that threatening impoverished parents with imprisonment or financial ruin to force their kids into school is both perverse and futile.

The impulse to criminalise poverty and bludgeon every inconvenient social problem out of existence through policing is at the heart of the legal system. In the absence of adequate rehab facilities, prisons are densely populated with detainees caught using or selling crystal meth and heroin (commonly referred to as the poor man’s drugs) – in many cases, this is the result of desperate bids by families to get their sons and brothers ‘cleaned up’ because they can’t afford rehab.

The infamously named ‘anti-beggary’ drives (currently in vogue in Sindh and Islamabad) profess to rehabilitate street children – this is done by mobilising the police to pick up those children (who are sometimes detained in police stations), temporarily deposited into Edhi centers, and eventually released back into the streets. Rehabilitation, here, means perpetuating a constant cycle of criminalisation and expulsion, often stamped upon children as young as five years old.

Detangling our sense of justice from coercion and incarceration requires a much more painful and uncomfortable examination – our reaction to violent crimes. Where failure of civilian institutions is coded into the very origins of the state and where equity in judicial decision-making is publicly perceived as an occasional happy accident rather than a conscious effort, swift and brutal justice feels like a salve (life-long imprisonment being a close second). But this is a bloodthirst that needs to be slaked eternally.

When the violent rape and murder of a child captures the nation’s imagination, people bay for blood, hashtags are furiously churned out, and the creaky machinery of criminal justice hastily works overtime to deliver quick and visible results in that one case, and the bloodthirst is temporarily sated. The imprisonment/hanging of one stands in as an acceptable substitute for arduous, long-term efforts for effecting structural, cultural and socio-economic evolution. Until the next rape or murder happens, and the bloodthirst reawakens.

The few conversations that do occur around ‘changing the system’ focus on internal improvements within the criminal justice system. Some of these (such as improving police response, forensic procedures and creating a safer environment for survivors and victims’ families) are absolutely vital. But most legislative efforts usually boil down to one thing – harsher punishments. Never mind that it takes considerable time, resources and suffering for a complainant to travel the distance between the law on paper and the implementation of a criminal sentence – do harsher punishments actually deter? Or rehabilitate? Do they address the vast majority of the prison population that languishes under-trial for years (many, if not most, wrongly accused)? And the most wrenching question: what really happens to a person’s soul after being incarcerated under dehumanising conditions for years? Is it really good and right?

This last question is rarely, if ever, asked, for an obvious reason. The actual punishment is the most hidden part of the criminal justice system – in Foucault’s words, it leaves the domain of everyday perception and enters that of “abstract consciousness … justice no longer takes public responsibility for the violence that is bound up with its practice”. And yet, these questions demand answering from time to time, and it’s not enough to ask them only in the case of those incarcerated maliciously on blasphemy or sedition charges. However hard it may be to stomach, what’s good for the goose is good for the gander.

Thinking and working beyond incarceration is essential for structural change, not just within criminal justice but also for redefining our political frameworks. And if incarceration must be a feature of our criminal justice system for now, then it needs to be devised not with the most powerful perpetrators or the most heinous crimes in mind, but the weakest and most helpless – those are the people who will always be the ordinary residents behind our prison walls.