Vanessa Sanderson

Roy Varghese, a 51-year-old man from Kerala, was sentenced to 10 years imprisonment in Jaipur’s Central Jail, Rajasthan in 1993 but his mental ill-health and a psychiatric diagnosis of schizophrenia meant that he was not released upon completion of his sentence.  In 2003 while a patient at the District Psychiatric Hospital he allegedly set on fire two patients, causing their deaths. 

He was arrested but remanded into custody at Jaipur Central Jail due to safety fears for staff and patients at the psychiatric hospital.  He was presented in court, was refused bail and it is at this Jaipur Central Jail that he has remained for the last five years, in solitary confinement.  ‘Unfit’ to be presented in court due to his severe psychiatric disorder and not accepted at the psychiatric hospital where he was once a patient, Roy remains in enforced isolation with no mental health care or proper treatment.

The experience of Roy Varghese illustrates significant problems inherent in India’s system of prison administration, and the lack of coordination between state apparatus.  Judicial delays are endemic, with criminal proceedings often going on for years.  There are large numbers of unconvicted prisoners, or undertrials, languishing in jail with no hope of receiving justice within a reasonable time.  In one instance in Punjab a man, Jai Singh, died in prison after having been an undertrial in Ambala Central Jail for 27 years.

The National Human Rights Commission (NHRC) of India estimates that 58.19% of prisoners are unconvicted and awaiting trial (31 December 2005). The majority of undertrials are from poor, underprivileged, rural and agricultural backgrounds. 

Unable to afford the cost of bail, if granted, they are remanded in judicial custody in overcrowded jails, often with poor sanitation and without basic facilities. They frequently become victims of torture and violence at the hands of other detainees and prison staff.

Institutional corruption and discrimination, especially caste discrimination, within India’s police and prison administration ensure that those with political and financial power can buy some exemption from the rule of law.  The high numbers of poor and underprivileged that make up undertrials demonstrate the high cost of this corruption born in the form of lost liberty; perhaps the most fundamental and basic of all rights, without which the dignity inherent in a human being is forsaken.

Prison, particularly solitary confinement, only serves to exacerbate mental disability in a detainee and is by no means the appropriate system of punishment for someone with severe mental disorder. The Indian Penal Code (IPC) of 1860 Section 73 outlines clear instructions on the use and restriction of solitary confinement but this is often not adhered to, without reprimand, especially in the case of detainees with psychiatric problems. 

In an attempt to tackle this problem, the State Prison Manuals include provisions for District and Sessions Judges to function as ex-officio visitors to jails within their jurisdictions to ensure that detainees are provided the basic minimum standards in health, hygiene and institutional treatment. However, in reality Judges, with enormous workloads and often backlogs of trials that run for years, will rarely have the time to carry out these visits in an already busy schedule.

The Mental Health Act, 1987 (which replaced the Lunacy Act, 1912 and the Lunacy Act, 1977) does not allow mentally ill persons to be sent to prison. But corruption, an inefficient administration, apathy and discrimination result in mentally disabled undertrials being ‘forgotten’ and left in conditions that violate a wide range of basic human rights. 

Furthermore, decisions under the Mental Health Act are made separately by an alternative Sessions Judge from the case proceedings.  As in Roy Varghese’s case this only serves to lengthen the time spent in prison awaiting conviction.

The Supreme Court decision in Sukh Das & Anr. vs. the Union Territory of Arunachal Pradesh held that free legal aid was essential to ‘reasonable, just and fair procedure’ and therefore a fundamental right of an accused.  However, as pointed out by the Supreme Court, low pay and lack of accountability mean that legal aid lawyers often fail to appear in court as appointed. 

Frequently, recently qualified law students seeking to gain experience in court take up these cases having had minimal practice.  Usually in cases when the accused is poor and unable to pay, the prosecutor is less inclined to perform to a high standard. 

The United Nations (UN) defines the Right to Health as: ‘The right to the enjoyment of the highest attainable standard of physical and mental health’, and this right is recognised in the constitution of the World Health Organisation (WHO), the Universal Declaration of Human Rights (1948), and in Article 12 of the International Covenant on Economic, Social and Cultural rights (ICESCR). 

This right contains both freedoms and entitlements; such as the freedom to be free from torture, the entitlement to basic health services and equity in access.  Importantly it specifically includes mental health and does not just refer to physical well being, something that is often ignored in policy and legislation.

Persons with mental illness are often the most neglected, or ‘invisible’ in communities. They are traditionally marginalised and shut away in large psychiatric hospitals where abuse is often virulent.  There is an absence of reporting in the mainstream or transparency over this issue, as it is often difficult for the media to gain access.  This neglect is exemplified in the isolation and together with violence within prisons can have grave consequences, often accounting for a high rate of suicide.

Undertrials suffering from mental illness are especially vulnerable to torture.  India has not ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) but it is a signatory.  This signifies its basic agreement with and its cooperation with the values of the UNCAT. 

Yet, despite a number of international and national measures that value the right to life and try to protect those that are at risk of being exploited, this is still not the reality for many in India, both inside and outside of prison walls.  Justice Krishna Iyer remarked that prison gates are not an iron curtain between the prisoner and human rights but for the many cases such as Roy Varghese they are.

Drastic reform and reviews of current methods and practices, as well as the custody and treatment of prisoners is needed in India.  On the international arena India promotes an image of a large functioning democracy with respect for human rights.

Yet the reality for the countless detainees whose liberty has been taken away as they await trial—often for years in terrible conditions, or those detainees suffering from mental illness who are denied access to proper medical treatment and rehabilitation—is very different. 

Article 21 of the Constitution of India, the protection of life and personal liberty, is no more a truth than for the large numbers of Indian citizens who are unaware of its existence.