While all prison population is vulnerable due to the constraints of incarceration, certain groups of people are particularly vulnerable inside prisons because of their low status in society, their physical or mental vulnerability and lack of recourse available to them. These include juveniles, foreign national prisoners, mentally ill prisoners and women.
Foreign National Prisoners
In West Bengal, 12.8 percent of the prisoners are of foreign nationality. Considering the state’s proximity to Bangladesh and the irregular demarcation of borders, there are many prisoners of Bangladesh and other nationalities who end up in detention in West Bengal Correctional Homes and continue to be in detention despite the completion of their sentence. They are commonly known as Jankhalaash Prisoners. Currently, 19.2% of the total population of foreign prisoners are Jankhalaash Prisoners. In other states also, many prisoners belonging to impoverished countries with weak rule of law often end up with the same fate.
In India, laws that govern the arrest and prosecution of a foreign national are over-regulatory whereas the laws that secure their release are either weak, flawed or non-existent. This forms a combination highly prone to vulnerability and overcrowding in prisons. Increasing migration and persecution in the Indian sub-continent and Asia has forced people to enter other states illegally. In the absence of clear legislations and operating procedures to restore and repatriate them in their home countries or provide them asylum, they get lost in procedure.
We initiate urgent action response to release the ‘released’ prisoners by providing support at the advocacy level as well as on case to case basis to foreign national prisoners. In the midst of hostile environment for foreign prisoners, we often approach the court in public interest as well as individual cases. We build partnerships with civil society organizations across borders to raise awareness about the unnecessary detention and seek their help in restoring family ties. We promote media advocacy to draw attention to the problem of overstay, socio economic impact and inadequate government will.
Juveniles in conflict with law
In India, males and females below 18 years are considered juveniles according to the Juvenile Justice Act, 2000. There are separate observation homes different from adult prisons to house juveniles that emphasize on rehabilitation and integration. However, due to sketchy implementation of the Act and lack of sensitivity of police, judiciary and prison many juveniles end up in prisons with adult prisoners.
We build the expertise of lawyers on Juvenile Justice Act to ensure proper implementation of the statute. We take judicial recourse to ensure that none of the juveniles, foreigner or citizen of India is kept in adult prisons with other prisoners. We promote the convergence of Juvenile Justice Act, 2000 with Convention of Child Rights.
The latest data issued by National Crime Records Bureau shows that the share of crimes committed by juveniles to total crimes reported in the country is 1.2%. However, the cases reported against juveniles have increased by 148.0% under The Foreigners Act, 112.5 % under The Indian Passport Act.
Many children belonging to impoverished Indo-Bangladesh enclaves often cross the borders unknowingly or for better living prospects. They are arrested on the border for illegally entering Indian territory and are sent to juvenile observation homes to spend the term of sentence. After completion of their sentence, they are repatriated to their country of origin. This process often takes longer since repatriation requires the involvement of various stakeholders on both sides of the border.
We constantly engage with the stakeholders at every step to expedite the repatriation and reduce the time usually taken to send these children back to their home. We promote stronger policies and guidelines to govern the repatriation of juveniles. We advocate for amendments in Foreigners Act considering the life situations of families and children living in the Indo-Bangladesh Enclaves.
Gender based vulnerability that prevails ‘outside’ always carries over ‘inside’ with a greater force, damaging the psychological and physical health of a person. Isolation aggravates the vulnerability making women victims of abuse, neglect and social condemnation. The vulnerability amplifies further at the time of their release rendering them forgotten and unwanted.
There are 3396 women lodged in Indian prisons out of which 1594 women are lodged with their children according to the latest data. Women jails or reformatories that are meant exclusively for women exist only in 12 States/UTs of India. Currently, there are only 19 women jails in the country. Since prisons are established to cater to the needs and requirement of a male-dominated population, women are forced to compromise on their special needs.
The Code of Criminal Procedure identifies the vulnerability of a woman and gives them the opportunity to seek bail for a non-bailable offense under Section 437. Section 360 of the Code identifies the vulnerability of a woman inside the prison and gives them the opportunity to be released on probation. However, ignorance of law and lack of effective legal representation render the legal safeguards obsolete.
We prioritize women prisoners as one of the vulnerable categories in the legal aid clinics by providing effective legal representation and assistance. We sensitize the legal aid lawyers on specific and multi-layered issues faced by women in custody in order to strengthen their defense.
Mentally Ill Prisoners
There are 4820 mentally ill prisoners in India who stay in deplorable conditions without access to medical facilities.
A mentally ill person accused of the commission of a crime stands on a different footing from other undertrials/prisoners. Sections 328 and 329 of the Code of Criminal Procedure lay down the procedure to be followed by the adjudicative authorities at the time of committal and trial of a mentally ill accused person. It provides for determination of the incapacity of the person and the unsoundness of his mind to stand his trial. If the accused person is determined to be of unsound mind, the adjudicative authority must allow for the postponement of his trial and legal entitlement to treatment at a mental health care facility and may release the person on surety of safe conduct.
In reality, these provisions have led to indefinite postponement of trial and in several cases, resulted in lifelong confinement of large numbers of mentally ill persons in prisons. One such case is of Baba Khan, a mentally ill person who was confined in Jodhpur Central Jail for 18 years. CHRI facilitated his release in 2010 after taking judicial recourse. He died one year later as a delayed result of lack of medical care inside prison.
We hope to highlight this case and use it for advocacy and seek relief for other mentally-ill patients lodged in the jails of Rajasthan and West Bengal.