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Gautam Navlakha Case: Cracking up

The shifting of the activist to the dehumanising high security prison cell has highlighted the need to uphold the rights of prisoners. Many judgments have tried to elevate them to a more humane state.

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By Abhinav Mehrotra

The debate between personal liberty and national security concerns has been growing. In this context, the norms surrounding solitary confinement and speedy trial along with ensuring human dignity while being incarcerated need to be reemphasised.

The recent shifting of human rights activist Gautam Navlakha to an anda cell (high security barracks) in Taloja jail in Navi Mumbai has generated some controversy. Navlakha was arrested in the Elgar Parishad case, related to a violent event which broke out on January 1, 2018, during the commemoration of the 200th anniversary of the Battle of Koregaon Bhima.

So what exactly is an anda (egg) cell? This is a high security prison cell that derives its name from its oblong shape. These cells exist only within central prisons built by the Public Works Department (PWD). They are specially designed to secure high-risk prisoners and provide a better view to authorities while monitoring and patrolling. The Anda cell was specifically made for terrorists, Naxals, gangsters and other such criminals. Due to the sensitive nature of these cells, additional officers and staff are deployed there.

These cells came into the limelight in the 1990s when terrorists Harjinder Singh Jinda and Sukhdev Singh Sukha were brought there before being hanged in 1992 in the case relating to the assassination of former army chief General Arun Kumar Vaidya. He had led Operation Bluestar at the Golden Temple in 1984. Others who have been put in these cells include Abdul Karim Telgi who was involved in the fake stamp paper scam, actor Sanjay Dutt in connection with the Mumbai bomb blast case and terrorist Ajmal Kasab.

Regarding Navlakha, his partner alleged that due to being deprived of fresh air and other basic necessities in the anda cell, his health had further deteriorated. She argued for specialised medical care for him, relying on a similar situation faced by Priest Stan Swamy who was a co-accused in the same case and had died waiting for bail on health grounds. She further alleged that the phone call facility had been withdrawn from Navlakha’s family members and lawyers.

The core of the issue is whether solitary confinement should continue to exist given its nature and impact. According to a UN Secretary General report, solitary confinement is the confinement of prisoners in cells for 22 to 24 hours a day with minimal sensory stimuli and little to no social interaction. It has been found that solitary confinement can cause significant psychological damage, including cognitive delays, increased suspicion and paranoia, anxiety, fear, aggression, hostility, heightened feelings of helplessness and depression and increased thoughts and attempts at self-mutilation and suicide. Any time a prisoner is subjected to an indefinite period of confinement it can amount to torture or cruel, inhuman and degrading treatment under Article 7 of the International Convention on Civil and Political Rights. Accompanying this kind of confinement is the impact on an individual’s dignity as understood under Article 21 of the Constitution that deals with the right to life and personal liberty.

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Solitary confinement is used in penal institutions throughout the world as a disciplinary punishment for prisoners, especially for political prisoners, those with mental illnesses and to isolate pre-trial detainees and those who need protective custody.

In US jails and prisons, individuals are held in solitary confinement for weeks, months and even years. Such treatment has been defined by The American Bar Association’s Standards On the Treatment of Prisoners as segregated housing that is expected to extend for a period exceeding 30 days. However, the prisoners can challenge their detention in courts through a writ of habeas corpus. The 8th Amendment also protects inmates from cruel and unusual punishment that is conditional upon the presence of an unreasonable risk of harm to them, and the deliberate intention of prison administrators to put them through these conditions.

In a similar vein, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. In order to fall under Article 3, ill-treatment must attain a minimum level of severity, i.e., depending on the circumstances of the case, such as the duration of treatment, its physical and mental effects and the state of health of the victim, which holds significance in Navlakha’s case.

In India, a person convicted or put in prison, cannot claim all the fundamental rights available to an ordinary person. However, certain rights which have been enumerated in Part III of the Constitution are available to a prisoner also because he remains a “person” inside the prison.

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The regulations through which prison administration is governed include the Indian Penal Code, 1860; Police Act, 1861; Prisoners Act, 1900; and the Prisons Act, 1894. However, the judiciary has been proactive in upholding the rights of prisoners and elevating them from a state of mere animals to being humans and there exist a plethora of cases that have dealt with these issues. These include Kishore Singh vs State of Rajasthan, where Justice VR Krishna Iyer said that isolation must depend on the rarest of uncommon cases for security motivations and to make them in consonance with Article 21.

The Supreme Court has said that isolation is an infringement of life and individual freedom of prisoners under Article 21. Echoing a similar sentiment in the Sunil Batra case, the Court observed that the conviction of a person for a crime does not reduce him to a non-person who is vulnerable to major punishment by jail authorities without observance of procedural safeguards.

Similarly, in BM Patnaik vs State of Andhra Pradesh, it was held that prisoners are not derailed of all fundamental rights, while Maneka Gandhi vs Union of India dealt with the right to life of prisoners. Mohammad Giasuddin vs State of Andhra Pradesh dealt with the fundamental rights of prisoners, while Charles Shobraj vs Delhi Administration mentions the use of fetters and solitary confinement. In the landmark DK Basu vs State of West Bengal, certain guidelines were laid down for the police to follow with regard to arrest, detention and interrogation as well as putting in place clear, accurate and visible name tags of the designations worn by the police and the right of the arrested person to communicate with his family members or well-wishers. Navlakha’s partner alleged that these were violated in his case.

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It is time to put in place a mechanism that ensures speedy trial that can be inferred from Article 21. By this, the benefit derived through Article 39 A that deals with free legal aid and which was brought through the 42nd Amendment Act, 1976, to ensure better administration  will be facilitated. Cases of solitary confinement may reduce as well because of the quick disposal of cases. In this regard, the judgment of Hussainara Khatoon vs Home Ministry for the first time held that a defendant had a fundamental right to a speedy trial under Article 21. The Court mandated greater access to bail and more humane living standards in the judgment.

Overall, in the case of Navlakha and other such cases, the need of the hour is to follow the spirit of Article 14 that states equality before law and equal protection of law, i.e., “like should be treated alike”.

—The writer teaches at Jindal Global Law School, OP Jindal Global University, Sonepat, Haryana

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