There’s a thin but sturdy chasm between a criminal and non-criminal, a ditch you fall through, and it’s always being dug by people constructing something else. I often think I’ll land up in prison for protesting or writing against the state or having the wrong books on my shelf, like Varavara Rao was. Those protesting CAA/NRC have been filling jails as ‘conspirators’ in the Delhi anti-Muslim pogrom, even as Kapil Mishra, whose speech residents of Northeast Delhi testify had spurred the violence, hasn’t had a single FIR filed against him. I look at the platoons of people being arrested under the fascist Unlawful Activities Prevention Act (UAPA), and I wonder what I haven’t done, that protects me from arrest.
What is truly unsettling about totalitarian censorship, though, is the apathy of Indian society to prisoners. Living room conversation in India has never been warm towards prisoners. Little matter whether they’re fruit thieves, trade unionists, or alleged terrorists, we don’t really care about the condemned. Distinctions of being undertrial or convicted are far further down our blinders. After all, criminals are but goons, disruptions in our safe lives, and sunny futures. Perhaps it’s the distance we stand at, perhaps it’s that we think that prisoners deserve their lot.
The regime since 2014 has possibly revealed a rupture for this thinking. We now see scores of doctors, activists, journalists, and students- otherwise ‘respectable people’- in prison for standing up for the right thing. Among these are Dr. Kafeel Khan, activist Sudha Bharadwaj, academics Varavara Rao, Vernon Gonsalvez, Anand Teltumbe, and more. One wonders whether these arrests are despite their respectability, or because of it- to curtail the influence of a long line of civil society intellectuals, and with them rob the hope of defiance and resistance.
There’s no denying the brazenness in these arrests, or that the ruling government has been raining down on dissent furiously. But the conversation doesn’t, and shouldn’t, end with the ruling government. There are strong reasons to cultivate care and solidarity with the captive, to feature them in our political consciousness, and to demand mechanisms of power to be vested with them.
First, prisoners are arguably the most vulnerable demographic in the country. Hidden away from public view, often in remote locations, denied the vote and thus their significance to political parties, the right to organize, strike, write, or complain, their existence is of little political consequence. They instead share their quarters with a police force that makes no pretenses about the violence it deploys against inmates. Moreover, about 70% of the prison population is undertrial, i.e., it hasn’t been found guilty in court but is languishing nonetheless from delay in courts. Prisons are also overcrowded and operating past their capacity, and are always a public health crisis, with custodial deaths reaching an all-time high in 2018.
In 2015, journalists and researchers were effectively barred from visiting prisons for study or documentation. They now have to apply 30 days in advance (60 for foreign journalists, but 7 days for print media) to the state government before a visit, which will only be allowed if the government believes it will create a ‘positive social impact’ or contribute to prison reform. There is also a security deposit of rupees 1 lakh to be given- which means most journalists simply cannot afford to enter prisons anymore. The recorded tapes stay with prison officials for three days, and they are free to delete ‘objectionable’ content. Prison memoirs and reportage are an important source of literature for us to know how the powers deal with the incarcerated, and the mounting facades between them and the public sphere keep us in total darkness about them until brutality reaches a fatal climax, as in Jayaraj and Fenix’s case.
Second, as the police and armed forces are under the executive, who is a prisoner is not a neutral classification but is entirely politically defined. In the last week itself, three journalists from the Caravan were assaulted while documenting survivors’ testimonies from Northeast Delhi. The police still haven’t registered an FIR against the perpetrators, but have made sure to open cases against students of Delhi University protesting the detention of Hany Babu in the ludicrous Elgaar Parishad case.
Though two retired Supreme Court justices have openly said they organized the Elgaar Parishad and that none of those arrested were even present for it, 13 arrests have so far been made under draconian laws against academics, activists, and lawyers.
The UAPA merely carries on the legacy of the Prevention of Terrorist Activities Act (POTA) and the Terrorism and Disruptive Activities Prevention Act (TADA), which have now been repealed as unconstitutional. The enormity of leeway given to police in designating a person a terrorist on the basis of ‘terrorist literature’ or ‘links’ under the Act makes the word meaningless. Most recently, the environmental website Let India Breathe was taken down, with the Delhi Police citing ‘terrorist’ charges for sending the Home Minister emails on the Environmental Impact Assessment notification. Though this was eventually modified under public pressure, it emphasizes the sheer absurdity of the framework under which persons become criminals.
The Indian state has had ‘exceptional’ laws running in perpetuity to subjugate not only dissenting individuals, but populations. These work to annihilate the differences between an innocent and guilty person, or skipping prison altogether and allowing army officers to execute on the spot. Standing at a grand total of two pages, the shortest I’ve known any legislation to be, the Armed Forces Special Powers Act is meant to give absolute power to the military. Whereas most acts go over the nuances of operation and thus run into pages, the sweeping nature of AFSPA comes alive in its brevity. It came to existence in 1958 and is presently in force in Assam, Manipur, Nagaland, Arunachal Pradesh, and as an analogous act in Jammu and Kashmir. It gives the military impunity for murder, rape, torture, and ‘disappearance’, explicitly allowing an armed officer to shoot on suspicion of ‘disturbing public order’. It then protects these officers from action or inquiry. No wonder, each of these states has seen mass disappearances, blindings, mass rape, and atrocities that don’t even make it to the register of our conscience. From the Konan Poshpora mass rapes in 1991 to Operation Bluebird in Manipur, to mass graves being found in Jammu and Kashmir of persons ‘disappeared’ by the army, these states see unspeakable terror as a matter of routine.
Too often, we dismiss the attack on people’s freedoms as ‘ethnic conflicts’, far from us, and too tangled to approach. We similarly distance ourselves from armed terror in Chhatisgarh, Jharkhand, and Orissa, giving in to the dominant narrative of ‘Naxal aggression’ without engaging with the conflict, the issues of land acquisition and eviction, Salwa Judum, or the Indian state’s historical ambush against tribal populations.
Third, who is a criminal is socially and economically tempered. Muslim, Dalit, and Adivasi people are disproportionally targeted by the criminal justice system. A study by National Dalit Movement for Justice and National Center for Dalit Human Rights called Criminal Justice in the Shadow of Caste found that Dalit, Adivasi, and Muslim inmates comprised 55% of the undertrial prison population, while being only 39% of the general population. National Law School, Delhi’s report on the death penalty found 76% of the prisoners on death row are from religious minorities or are SC/ST. Some states fare worse than others: in Gujrat, where Muslims are 9.67% of the population, they are 79% of death row convicts. 74% of all death row convicts are economically vulnerable. The ability to engage legal counsel, make bail, etc. are entirely economically dependent.
Fourth, crime itself, not just punishment, is a function of economic opportunity. When tribal populations are displaced and driven out of forests when jobs are snatched away from youth, when malnutrition, disease, and mounting medical bills loom over the populace, can we shift the burden of crime away from the state and entirely on to individuals? Crime in any context has to be seen as a state failure as much as individual failure.
It has also been observed that cutting government spending, taking away jobs, and downsizing public industry pushes people towards crime. For instance, in 1985, when Bolivia reduced public wages and protections, 10% of its workers flocked to grow coca, a plant used in the production of cocaine.
The more I read, the more I realize what shields me from arrest is not a lack of appetite for mayhem, but my social and economic security. It’s also that none of my defiances has been enough to make a dent. It’s only those activists who’ve been somewhat successful in organizing who blinked on the police’s radar. Given how circumstantial the tag of a criminal is, by condemning the jailed, we condemn ourselves, including the best of us. But breaking the opacity of the prison, and working so it isn’t certain doom, might do more good than we can imagine. Perhaps it’ll liberate the activists plagued by the fear of arrest, and usher a braver day.
Here’s what we can do:
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