Rights of the incarcerated: Plight of pre- and under-trial detainees overcrowding prisons in South Asian nations

Prisons in South Asian countries are overcrowded-- with some countries like Bangladesh and Sri Lanka having almost double their official capacities-- as most people spend years there as pre-trial detainees in the absence of speedy justice, according to data presented at a conference titled "The Rights of The Incarcerated in South Asia", organized by the South Asia Peace Action Network (SAPAN)

Sep 07, 2021
Rights of the incarcerated

Prisons in South Asian countries are overcrowded-- with some countries like Bangladesh and Sri Lanka having almost double their official capacities-- as most people spend years there as pre-trial detainees in the absence of speedy justice, according to data presented at a conference titled "The Rights of The Incarcerated in South Asia", organized by the South Asia Peace Action Network (SAPAN). 

A major factor in the overcrowding of jails in the South Asian region is the months, or sometimes years-long detention of pre-trial detainees, Vrinda Grover, a renowned human rights advocate in India, highlighted in the three-and-half-hour-long virtual conference held on 29 August. The conference featured gut-wrenching testimonies of people who were wrongfully held in prisons for months in different countries in the region, including those who were picked up but not produced before the courts for months or years. Those who fill the prisons tend to be the poorest of the poor as many pointed out.

Devangana Kalita and Natasha Narwal, the two student activists of Jawaharlal Nehru University in New Delhi who were imprisoned for over a year on rioting charges that are still to be proved, highlighted the inhuman treatment of foreigners and the children of incarcerated women. Narwal, during her time in jail, also lost her father to Covid-19.

The issue of the maritime arrests of innocent fishermen was highlighted by Majeed Motani, Karachi President of the Pakistan Fisherfolk Forum (PFF), and Fatima Majeed, vice president of the PFF.  In 1986, Majeed had spent some months in a prison in India. 

During the discussion, Fatima said, “If someone illegally crosses the border and is engaged in wrongdoing, by all means, take action.” These arrests often come as the result of the undemarcated maritime boundaries like Sir Creek between India and Pakistan. 

However, Admiral L Ramdas (retd), former Indian Navy chief,  asserted that the matter was not really in the hands of either the Coast Guard or the navies alone. “Fundamentally, it is a lack of political will on both sides that has to be addressed,” he added. 

The situation is dire for many cross-border detainees. In one such case, a Nepali national, Durga Prasad Timisina, was arrested by Indian authorities in 1980 on murder charges. He was recently declared unfit to stand trial by the Calcutta High Court. 

In another case, a 38-year-old man, who was believed to be a Pakistani national and was held at the joint interrogation center in Bhuj in Gujrat, died in January this year

Over the years, countries in the region have also introduced some reforms to improve the conditions in prisons, Sarita Bartula, a Nepali youth activist, detailed these reforms during the conference. For instance, in Delhi’s Tihar Jail, two FM channels were launched to keep prisoners engaged and entertained. In Pakistan, the Legal Aid Society ('LAS') was established to improve legal empowerment and access to justice for vulnerable and deprived communities, especially women, children, and religious minorities.

In Nepal, the Prison Act allows the jailer or officer in charge of each prison to appoint leaders and deputy leaders from among the prisoner population-- a system, one Nepali official believes, helps the authority to easily maintain decorum in jail premises. These leaders, in return, get minor concessions in their prison terms. 

The panelists included prominent activists, legal experts, concerned citizens, and formerly incarcerated persons across the region who came together online to discuss the issue on 29 August 2021, under the umbrella of SAPAN. 

Held a day before the International Day of the Victims of Enforced Disappearances, the meeting underlined the need to recognise enforced disappearance as a distinct crime. The recent commemoration of World Humanitarian Day on 19 August also pegged the need for compassion and empathy for vulnerable communities. The tragic situation in Afghanistan further highlights the need for solidarity in the region and to insist on upholding human rights principles, SAPAN said. 

The extensively researched materials also presented at the session included an overview of prison conditions and best practices around the region, leading veteran journalist Bharat Bhushan, who anchored the roundtable with human rights advocates, to suggest that SAPAN publish a booklet or paper to take the issue forward. 

Speakers in the testimonies’ section hosted by Bangladeshi journalist Zyma Islam included well-known photographer and educator Shahidul Alam in Bangladesh and Hamid Ansari, the civil engineer in Mumbai who was incarcerated in Pakistan for six years and has written a book with journalist Geeta Mohan about his harrowing experiences. 

Alam shared photographs of artwork by inmates at Keraniganj Jail — an evocative expression of solidarity by and with the incarcerated persons at Keraniganj jail where he was imprisoned.

Organisers had gone to some trouble to obtain testimonies from those whose voices are rarely heard at such meetings. Participants heard an audio recording of Asif Iqbal Milton, who spent nearly 12 years in Indian jails. He had been a college student when he was arrested across the border in a case of mistaken identity, wrongfully incarcerated in place of Indian national Milton Barman. 

He was released from prison after a laborious legal campaign by the Bangladesh National Women Lawyers Association (BNWLA, or Bangladesh Jatiyo Mohila Ainjibi Shamity, BJMAS) working in collaboration with Indian activists. The testimony in Bangla, shared with English subtitles, ended with a demand for compensation. 

A team from Anhad Films and PUCL Rajasthan traveled to the border area to obtain video testimonies. Some had returned from prison in Pakistan, while others are still waiting for loved ones who never returned. 

“The families are devastated, most have died… no closure yet from either government”, said Kavita Srivastava of PUCL, also a Sapan founder member, who initiated the project. 

Vrinda Grover observed that prison populations comprise largely those who are under-trial, a major factor in the overcrowding of jails and detention centres. She also talked about the “vindictiveness” of the system, highlighting the case of Father Stan Swamy — the octogenarian Jesuit priest and tribal rights’ activist in India who was repeatedly denied bail despite his ailing health, and passed away after contracting Covid in jail — as an instance of custodial death.

Jatin Desai, former secretary general Pakistan India People’s Forum for Peace and Democracy (PIPFPD) shared the story of a Pakistani prisoner Imran Kamran, who died in India having been incarcerated there since 2009. Despite having thrice been granted consular access since 2014, Pakistani officials had not been able to verify his identity. Verification of nationality is a prerequisite for the repatriation of the living — and the dead.

A ten-point resolution was endorsed by the house, presented by advocate Noman Quadri in Karachi (Link: Resolution-Rights of Incarcerated), seeking judicial reforms to uphold the rights of the incarcerated in South Asia. 

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