Amar Bharat

14
Oct

PRISONERS OF WAR: ARE THEY BEEN HEARD?

Prisoner of war (POW) means any person captured or interned by a belligerent power during war. In the strictest sense it is applied only to members of regularly organized armed forces, but by broader definition it has also included guerrillas, civilians who take up arms against an enemy openly, or non-combatants associated with a military force.

The Prisoners of War (POW) rights are protected and safeguarded by the International Humanitarian Law. Under the International humanitarian laws duty is casted upon the States to treat the war captives or the POW’s in accordance with the provisions of the laws. The Third Geneva Convention which was first adopted in 1929 but significantly revised in 1949 Conference provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release.

Article 4 of the Third Geneva Convention defines the term clearly and sets out those who are categorically recognized as prisoners of war: “1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. 2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; and (d) that of conducting their operations in accordance with the laws and customs of war.” Thus conclusion can be drawn that war is a state of restlessness between two or more nations or armed forces that forces the governments of the participating nations to use force against each other and hence allowing the victor state to impose such conditions as it deems suitable. And importantly prisoners of war are a direct outcome of the war that constitutes between different nations or groups.

Under the Convention the prime responsibility of the treatment of the POW’s falls upon the detaining authorities and not upon the individuals. The Detaining Power is under a general obligation to treat prisoners humanely and protect them from danger. They must be supplied with food, clothing and medical attention. They are also entitled to elaborate due process guarantees, including trial by the courts that respect the same standards of justice as those respected by the courts that would try the military of the Detaining State. Medical and scientific experiments are prohibited and they are to be treated alike regardless of race, nationality, religious beliefs or political opinions. The conditions at the detention camp must meet standards provided in the Convention. The work that the prisoner is required to perform must not be inherently dangerous, humiliating or directly connected with the operations of war. The prisoner must be permitted contact with his family and correspondence privileges. Penal and disciplinary sanctions, including procedures for determining guilt, are also prescribed by the Convention. When hostilities have ceased, POWs must be repatriated. There are about 196 States party to this Convention.

The POW suffer at the hands of the belligerents. Belligerents hold prisoners of war in custody for a range of legitimate and illegitimate reasons, such as isolating them from enemy combatants still in the field (releasing and repatriating them in an orderly manner after hostilities), demonstrating military victory, punishing them, prosecuting them for war crimes, exploiting them for their labour, recruiting or even conscripting them as their own combatants, collecting military and political intelligence from them, or indoctrinating them in new political or religious beliefs. There are reports of third degree torture on the POW, their hands are tied, they are kicked and punched, they are interrogated at odd hours and for days, they are sent to solitary confinement and made to stay naked, they are tortured mentally and physically. Thus one cannot deny gross violation of their human rights.

Today’s world has witnessed barbaric and inhumane treatment to the POWs whether by the US army in Guantanamo Bay, IS forces in Iraq and Syria or by Boko Haram in Nigeria. Every now and then, we read and hear about the spine chilling acts of the militants groups like IS and Boko Haram groups which include genocides, mass killings, massacre of men, women and prisoners of war. We are also aware about the reports of POW still languishing in the prison of Pakistan since the aftermath of the Indo-Pak War of 1971.

Question arises why aren’t these POW repatriated to their home country? Why does it takes ages for the countries to address to this issue and protect their own men held captive in other country? Shouldn’t their voices and grievances be heard and addressed just like it is heard of those accused and imprisoned for cheating or murder in home country? It is unfortunate that there have been hardly any public talks or publication of reports about the status of the POW in countries except during the sessions and conferences at the UN where countries are ‘obligated’ to give a record of the status and treatment of POWs in their country, (if any).

Looking so far the efforts of each country question arises- why does each country do not make the records of POW in their country as well as those in other countries public? Why do they avoid from making records public and also from answering questions relating to this issue? Is it that they consider this as an issue that has to be dealt only in a ‘diplomatic way’? It shouldn’t be forgotten that transparency and accountability is important and is valued by the people in every country.

I believe for very person it is important to know where and how his countrymen captured as POW is treated, what are the rights given to them, nationally and internationally, how does the government of each country plan to get them back to their home country, and are they willing to negotiate with the belligerent and be persistent.

7
Oct

Updates About Change in Dates for National Seminar on ‘Save Prisoners from Injustice’

*Attention*
Due to an official recommendation in respect of a governmental event happening in Allahabad High Court on 13th October,
We had to reschedule the date of seminar on 27th October, 2018.
In lieu of the same, the final submission dates have been extended too.
We are deeply sorry for the inconvenience caused.
#Spread the word amongst all!
27
Sep

THE CULTURE OF VIP TREATMENT IN THE PRISON

 “I still cannot forget those days inside the jail, eating bad food, sleeping on the foul mattresses and using the stinking washroom. I come from a poor family, but we stay in a much better condition. My first day was horrible – I was beaten up by the other convicts; they called me names for being a rape accused. The next day, a jail staffer came to me and told me that if I could give him some money, I could lead a better life inside jail. I told him that I do not have money to give him.”

  • Raju Sharma (convicted for rape in 2008; life sentence; Tihar Jail)

“We were woken up at 6 a.m. by the jail staff, and an hour later, we were served tea and two slices of bread. The tea served was so watery; there was hardly any milk or sugar in it. It used to be a hard task just somehow take in that tea with those two slices. After this breakfast, we were made to do menial works like cleaning the toilets besides the jail floor. I have also washed clothes for inmates who used to pay Rs 50 a day for my services. I once worked for inmates in 4B ward inside the jail, which is meant for high-profile prisoners. I was amazed to see an air cooler and an LCD TV; even the food served in these cells was of a much better quality. Curious, I asked a fellow inmate, who had been in Tihar for much longer, about how these people led such a comfortable life. He told me that the entry fee for lodging inside 4B ward was Rs 50,000. Once a person has paid the fee, he will be given all the comforts and no rules will be applied to them. Prisoners like me were locked up thrice, once at 12 noon after lunch, then at 3 p.m. and again at 6 p.m. However, no such rules applied for inmates staying in 4B ward.”

  • Papu Yadav (convicted for murder in 2012; life sentence; Tihar Jail)

Prison life is hard anywhere. It’s a place where acts and liberties of prisoners are restricted. It is restricted with the aim of punishing them, improving their behaviour, teaching them the difference between right and wrong, it’s a time for prisoners to get self-realization and gain perspective by doing introspection of the wrong done by them. The conditions span the range from dire to dreadful and can be ruthlessly harsh. These conditions are unsparing ‒ except when it comes to VIPs and moneybags. It is an open secret that if one has cash to offer, even a stint in jail can be comfortable.

According to a news report, VIPs get a separate room with a toilet, better quality of food, doctor’s services 24×7, emergency ambulance service, a pillows and a bed, better lightning and an extra light for reading purpose, newspaper service and books of his/ her choice, wi-fi service, TV, air-condition, frequent number of visits by their family members and other visitors, liberty to wear causal dress. Not only this they also hire other inmates to wash their laundry, clean the floor and these inmates who volunteer are paid additional money.

Question arises- why the prisoners should be treated differently in the prison? Why the “class status”, “the rich and poor” be continued and followed even in prisons? Why should a person be given a different and special treatment just because he/ she is wealthy influential and “can afford” whereas the other not so influential be denied because he “cannot afford” when both of them are in prison for commission of a crime? When law and order doesn’t distinguish between the people then what right the “authorities” and “money” have!

It is argued that special treatment is given because of factors such as threat to life, prone to allergies, being a celebrity or politician wish to lead a private life (even in jail), educate oneself and connect with the happenings in the world. Why are these reasons not applied to the other inmates also? Aren’t they entitled of learning and updating oneself with the happenings of the world?

The difference in the treatment does proves that power comes from money. And there needs an immediate check in this practise. It is time that such special treatments be stopped and everyone be treated as one not only in words and on paper but even in practise. One needs to realize that a sorry message is send across the world that no matter what crime you have convicted for if you have money you “still” live at ease by buy everything. This VIP treatment also shows a blatant disregard to the very fundamental concept of equal treatment and human rights. The administrative authorities should be held accountable and they ought to reason their acts as none of the laws or manuals provide for VIP treatment. It is indeed correct that a person has to make an Application in the Hon’ble Court and seek permission such as for access to home cook food, medicines, visits etc. But by doing so the Hon’ble Courts do not grant special and VIP treatments. However one cannot deny that Suo moto action should be taken by the Hon’ble Courts in this matter.

 Some of the “VIP TREATMENT” in jails are narrated as under:-

TIHAR JAIL-DECEMBER 2015: SUBRATA ROY: Sahara Group chief Subrata Roy has paid a whopping Rs 1.23 crore to Tihar Jail authorities for all the special privileges he enjoyed in a special cell. Roy was sent to Tihar Jail on 4th March, 2014, for failing to refund over Rs 20,000 crore with interest to depositors. Tihar Jail authorities have received Rs. 1,23,70,000 from Sahara Group for using the conference room. The payment includes charges for security, electricity, maintenance, rent and other facilities like food and water. It is said that Subrata Roy enjoyed benefits that had never been seen by anybody in prison before and is the first person in the history of Tihar Jail to have comforts of air-conditioning.

YERAWADA JAIL-AUGUST 2015: SANJAY DUTT’S PAROLE: Sanjay Dutt had left the prison on paroles and leaves of furlough on numerous times. This is termed as VIP Treatment because the other inmates who don’t get the same leniency.

RANCHI-OCTOBER 3, 2013: LALU PRASAD: The RJD Chief Lalu Prasad was a VIP prisoner in Birsa Munda Jail and was getting all the amenities. Longer visiting hours in comparison with regular inmates, an upper division cell with a TV and two cooks, a generous supply of rice, fresh vegetables, mutton/chicken or fish, ghee, and seasonal fruits and the option of getting food from outside, are just some of the entitlements.

JODHPUR CENTRAL JAIL – SEPTEMBER 2013: ASARAM BAPU: He demanded food cooked at homes of jail officials, Ganges water for bathing purposes and two of his followers as his personal attendants in jail. Reportedly such demands were met.

ORAI- SEPTEMBER 2013: SANGEET SOM & SURESH RANA: MLAs Sangeet Som and Suresh Rana were given VIP treatment in jail. The duo were being saluted in prison and were given a guided tour by the jail authorities. The jailor of the prison was caught on camera saluting Sangeet Som while the MLA was being taken into the jail.

LUCKNOW- JULY 2012: MUKHTAR ANSARI & VIJAY MISHRA: Mukhtar Ansari, an Independent MLA supported by the ruling Samajwadi Party, and Vijay Mishra of the SP are only released to attend Assembly proceedings. Mukhtar Ansari is an accused in the murder of BJP MLA Krishnanad Rai. Vijay Mishra has been accused of attacking BSP leader Nanad Kumar Nandi.

KAPURTHALA CENTRAL JAIL – APRIL 2013: JAGIR KAUR: The former Punjab Chief Minister Bibi Jagir Kaur was convicted to five years imprisonment after being found guilty of wrongfully confining and subsequently forcing her daughter to undergo an abortion. The amenities and facilities she received was a 32-inch television screen and a cable network connection that were installed in Kaur’s prison, ostensibly for her to enjoy her favourite programmes while in jail and free access to her mobile phone and her relatives.

TIHAR JAIL- OCTOBER 2011: VIKAS YADAV: Vikas Yadav, son of politician DP Yadav and in jail for the murder of Nitish Katara, spent a lot of his prison time in a hospital. He also managed an outing for a night for Diwali and two policemen who allowed him to step out were subsequently suspended. An examination by doctors also revealed that he didn’t have any medical problems that required hospitalisation.

TIHAR JAIL-SEPTEMBER 2011: AMAR SINGH: Defying the court orders that stated Singh to be put in one of the barracks, he lived in a ward with an attached bathroom in Tihar Jail. He had two cell mates with him, who scrubbed the floor of the cell 4-5 times every day. And frequently, they sprayed insecticides to keep the ward mosquito-free. The cell mates were not allowed to use Singh’s bathroom. He was allowed home-cooked meals.

TIHAR JAIL-2009: MANU SHARMA: Manu Sharma, convicted of the murder of model Jessica Lal, had also been found partying in 2009 after being granted parole by a court to attend his grandmother’s funeral and see his ailing mother.

There remains no doubt that the rich and powerful manage the system – be it food, parole, illness or privileges inside prison. Unfortunately social class hierarchies don’t dissolve in jail as well.

By Adv Ms. Pinny Pathak

20
Sep

THE PAROLE SYSTEM IN INDIA

Parole is said to be one of the major correctional process in jail reforms. It is for the social rehabilitation of the prisoners, a way to help them to come back into the mainstream of life.

Parole is defined as the conditional release of an offender who has already served a portion of his sentence in a correctional institution. Parole had its root in the Positivist School. The word ‘Parole’ comes from the French word “je donne ma parole” meaning ‘I give my word’, while the dictionary definition is ‘word of honour. The term ‘parole’ was first coined in a correctional context in 1847 by Samvel G. Howe, a Boston penal reformer. The Classical School of thought opined that people are free to choose their own conduct. While committing any crime, an offender always calculates his gain, his pleasure, at the cost of other’s pain. So he must be punished. But the Positivist school argued that it is the circumstance which forces anybody to commit crime. So he must be rehabilitated. From there the thought of parole arose. Therefore it provides a second chance to the prisoner to rehabilitate himself.

In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894 and Prisoner Act, 1900. Each of the States has its own parole rules, which may have minor variations with each other. There are two types of parole- custody and regular. The Custody Parole is granted in emergency circumstances like death in the family, serious illness or marriage in the family while Regular Parole is allowed for a maximum period of one month, except in special circumstances, to convicts who have served at least one year in prison. The released prisoner remains under the supervision of the paroling authority. Parole may be revoked for violation of parole regulations. There are certain categories of convicts who are not eligible for being released on parole like prisoners involved in offences against the State, or threats to national security, non-citizens of India, people convicted of murder and rape of children or multiple murders etc.

Regulations are laid down which are to be followed by the prisoner on parole such as the paroled person should hold the permit always and should produce on being tendered by any police officer or magistrate or any other competent authority; not associate with notorious bad characters, ruffians and anti-social elements; not indulge in coercing any of the witnesses or complainant to adduce evidence in his favour etc.

In recent times, one cannot deny that the concept of parole been changed in order to suit needs, especially of the “highly influential class” prisoners. They have used parole time and again to escape the prison sentence. We have examples where on the one hand parole was granted to the highly influential class on frivolous grounds, while on the other hand there are lakhs of other prisoners, uninfluential, and do not have means to utilize the process, or were refused the benefit on simple grounds.

Misuse is clearly evident in the case of Sidharth Vashisht @ Manu Sharma vs. The State of N.C.T. of Delhi case, where the convict Manu Sharma asked for parole on three grounds: to attend religious rites for his late grandmother, to tend to his ageing mother and, to take care of the family’s business interest. He misused parole and returned to Jail only after he was traced to a Delhi pub enjoying his night life with friends, drinks and dance.

The Bibi Mohanty case, in which the convict, son of a DGP, Orissa, was sentenced for rape of a German national. He was sentenced to seven years rigorous imprisonment along with fine. He was granted fifteen days parole to visit his ailing mother. He escaped and his father pleaded ignorance about his whereabouts. A significant period of seven years elapsed, and the police caught him from Kerala. The convict had changed his identity. His father refused to accept that the person arrested was his son. Court ordered the DNA test to establish his identity.

Another case is that of Sanjay Dutt who was convicted and imprisoned for a period of five years. He was granted Parole time and again in the name of health issues, his wife’s surgery, and daughter’s surgery. In another case Vikas Yadav, a politician convicted for murder of Nitish Katara has come out on parole more than 80 times, taking it to 5 times a month.

These cases depict a lot about the functioning of our administration. It shows the partiality and discrimination allowed and followed in the jail by the administration which most of the times goes unchecked and rectified.

The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, rules have been framed in various States, regulating the grant of parole. Parole Rules or administrative instructions, framed by the Government are purely administrative in character and for securing release on parole, a convict has, to approach the Government concerned or the jail authorities. Thus in most cases, the executive acts in a mere mechanical manner, without application of mind and appreciation of facts. This raises an important question- Should the Executive have the power of decision making on parole or is the judiciary a more competent authority to decide on matters of freedom of the prisoner? Is it not important that a uniform rules and regulations be framed across the country for grounds of release on Parole? It is said that good behaviour is one of the important grounds for release on Parole. Who decides ‘good behaviour’? What qualities ought to be present in order to fulfil the standards and criteria of good behaviour? It has been found that some of the Applications are merely rejected without stating any grounds. Further no reply to the Applications and RTI’s filed. Who should be held accountable for this? What measures are taken by the administrative and jail authorities to check the corrupt and illegal practices while granting Parole in some of the cases?

Even the Hon’ble Supreme Court and High Courts have questioned the administrative authorities on what grounds parole is granted and why discrimination made between the rich and poor. For instance Hon’ble Justices SC Dharmadhikari and Bharati Dangre of the Bombay High Court in one of the cases directed the State to submit an affidavit detailing the steps followed while granting parole and furlough to an “average” inmate and whether the poor are also granted parole.

It is important to note that the grant of parole is not a matter of right, but a concession granted to the prisoner. The grant is regulated by rules laid down in each State and is a part of executive discretion. Such discretion should not be exercised arbitrarily or capriciously. This call for a significant role to be played by state and jail authorities in this regard. They should understand the offender’s social history. The grounds on which parole to be granted have to be properly examined. The grant of parole should be based on considerations such as: Nature of Offence and circumstances related thereto; Time spent in prison; Conduct of the convict; Previous antecedents, if any; Possibility of engaging in illegal activities, committing crimes, during the period; Possibility of seeking vengeance, causing harassment, in specific categories of crimes. It should be ensured that the convict should not be deprived of his rights as a human being. The liberties and freedoms remain curtailed during the term of sentence. But that should not take away the fundamental humane considerations of life. All are equal in the eyes of law, none is rich or poor, educated or uneducated. Thus different treatment within the prison is uncalled for. It is high time that the administrative and jail authorities act in a reasonable, unbiased and responsible manner.

By Adv. Pinny Pathak

 

 

16
Sep

Judgment on Right to Undertrial Prisoners

The right under section 167 (2) CrPC to release on bail on default if chargesheet is not filed within 90 days from the date of first remand is not an absolute indefeasible right. The said right would be lost if chargesheet is filed but not otherwise which means a person has to be released on bail if police has no reason to file the chargesheet under section 167 (2) of CrPC.

The above rule has been enshrined in Pragya Singh Thakur v. State of Maharastra, (2011) SCC 10 445.

Please find the judgment for further reference.

Click Here to Download the File

15
Sep

Prison Statistics of India

This PDF presents statistical information
on different categories of prison inmates, interalia,
foreign inmates like convicts, under-trials,
detenues and their age & gender profiles.
Besides, details on women prison inmates
including those staying with children and number
of inmates suffering from mental illness have
also been presented in this chapter.
Prison inmates lodged in various jails are
categorised as Convicts, Undertrials and
Detenues. A convict is a person found guilty of a
crime and sentenced by court of law and person
serving a sentence in prison. An undertrial is a
person who is currently on trial in a court of law.
A detenue is any person held lawfully in custody.
However under ‘Other’ category refers to any
person other than above mentioned categories.
The percentage share of Convicts, Undertrials
and Detenues inmates was reported as 32.0%,
67.2% and 0.6% respectively at the end of 2015.

 

Click Here to Download PDF File.

14
Sep

Research help: A Study of condition of Women Prisoners & Their Children in Eastern U.P. Jails

This is a National Research on condition of Women Prisoners and their children in India.The research is sponsored by  National Commission of Women.
We are attaching the file for download so that participants may get help by their research.
12
Sep

Need help to save the image of legal fraternity

A shmeful incident took place in the central university of south Bihar, Gaya on saturday 8th of september, 2018. Fight happende between students i.e. School of law and governance an M.A.Political science and international relation. A mob enterted into the class of 9th semester students of school of law and governance, and hit the students, abused class and girls were being molested by mob. Then soon after the incident proctor entered the 9th semester class of school of law and governance and without investigating the matter and listening us he being prejudiced make the whole class aqused and abused the whole legal faternity and said the whole law students criminal.

He said that – “Sara Internship, Moot Court, Aur iss Desh ka Law Andar Ghusa Denge. Iss Desh ka koi Law, koi kanoon, koi Court mera kuch nahi bigad sakta.” सारा इंटर्नशिप, सारा मूट कोर्ट और इस देश कासारा लॉ अंदर घुसा देंगे। इस देश का कोई भी लॉ, कोईकानून, कोई कोर्ट मेरा कुछ नहीं बिगाड़ सकता। (The Laws of India, Judicial System and Courts of the India cannot cause me any harm, even if I do so.) 

He also showed certain hand gestures which were obscene and no prudent man will do so in a class where girls are also sitting. He said that- “I don’t give a damn to the principle of Natural Justice and no one can remove me from my post.” He said that the Law Students of the University need to be taught a lesson and they are overly smart.

He also put certain allegations on the law students that they commit illegal activities. We  are on strike for the removal of chief proctor “kaushal Kishore” from his post of proctor. As he used unparlimentary language and he is baised.