The Indian criminal justice system is plagued by apathy, indifference and indeed, injustice. This story is The Quint's effort to ensure that the many everyday tragedies of this system do not remain mere statistics. It's the story of Archana, who will have to travel for eight hours and wait in line for as long, to meet her imprisoned brother Vinod for 5-7 minutes. Of Sahba, whose partner Gautam is an undertrial in a jail in a different part of the country, who will no longer be allowed to speak to him on the phone. Of countless families torn asunder by a carceral system that forgets it is dealing with human lives. Please support us by becoming a member and help us bring you the stories of India's Criminal (In)justice System.
She would leave her house even before the crack of dawn.
It would begin with a train ride to Kurla. From there, another train to Thane. Here, she would get on the train to Pune. A rickshaw would take her to Yerawada.
The four-hour journey time meant she would miss the first window for registration, from 8:30-10 am. She would wait till 12:30 pm, when registrations opened again, standing in line in the milling crowd to get one of the limited slots available.
Then, it would be time for another wait, more hours spent waiting till her turn would come, trying to ignore the aches and pains that had begun to arrive with age even before the accident and operation that had laid her up for weeks.
Finally, her chance would come, and she would find herself seated across from her brother, phone receiver in each of their hands. She would say something, but he couldn't hear her. He would say something back, but the instruments provided to them would be acting up as always.
The prisoners and visitors on either side would be having the same problem, voices rising desperately as they tried to make some sense of what the other was saying.
There was barely enough time to get a grasp of the devices, ask how they were, before it would be over.
And then it was time to go home. A four-hour journey, yet again, this time with the added cost of a taxi to get her to her doorstep, exhausted, at nearly midnight.
A whole day, gone. At least Rs 1,000 spent. All for five to seven minutes of indistinct conversation.
This is what Archana, a homemaker pushing 50 with no source of income, used to have to go through every week to meet her brother Vinod, a 60-year-old undertrial prisoner housed in Yerawada Central Jail, the largest prison in Maharashtra, in the months before COVID-19 took over our lives.
Over the last 18 months or so, the pandemic meant an end to all in-person meetings with her brother in prison – what are known as 'mulaqats' – and were replaced instead with phone calls once every 15 days or so.
It was a month before the jail put together a system for the phone calls to be made; every call had to begin with verification by a police officer, and these too would only last five to seven minutes.
It wasn't perfect, it certainly wasn't helpful when it came to case planning with the lawyers, and she didn't get to see him before her eyes, but it made life easier for the basic business of trying to make sure he was okay.
It is also over now. The jail authorities informed Vinod a couple of weeks ago that with the pandemic under control, the prison would be returning to its pre-coronavirus protocol for interactions with the outside world: letters and physical mulaqats.
Which means that for Archana, it's back to the old grind. The 4:45 am start. The eight hours of travelling. The hours of waiting. The return at 11:30 pm. The cost, which she has to dip into her brother's meagre pension for.
All for that five to seven minutes of conversation.
The Antiquated Prison Rules of Indian Jails
So how is it that in 2021, with phones available cheaply and easily, with prisons already seeing that they could offer these services during pandemic restrictions, that basic phone calls are not an option for all prisoners any more?
The problem lies in an inexplicable failure to update the Prison Rules and Jail Manuals that govern the life of prisoners in Indian jails.
The core legislation that governs the way prisons function is the Prisons Act of 1894, which sets out the basic principles. Each state then has the power to create Rules and Manuals which deal with the implementation of the Act.
Even though many of these Rules have seen the odd update over the years (or in some states been passed anew), they are largely stuck in the past – including when it comes to how prisoners are supposed to communicate with families and lawyers.
Apart from Delhi's new Prison Rules of 2018, The Quint has not been able to find a single set of Prison Rules or a Jail Manual from any other state or Union territory which expressly provides an option for prisoners to make use of phones.
The only forms of contact with the outside world that are mentioned in these Rules and Manuals are: letters and physical visits.
This is the case despite the publication by the MHA in 2016 of a new Model Prison Manual, which specifically talks about how prisoners should be allowed
"the use of telephones or electronic modes of communication on payment, to contact his family and lawyers, from time to time, in accordance with the State police."
This Model Prison Manual is not an obscure document nobody is aware of. It is issued in accordance with instructions from the Supreme Court, after consultations with experts and different states, and is meant to be a template for states to ensure that the fundamental rights of prisoners are not violated.
Unfortunately, states across the country appear to have no interest in updating their Rules and Manuals on prisons, even when it comes to the most regressive practices.
In December 2020, for instance, Sukanya Shantha at The Wire reported that prison manuals in Rajasthan, Haryana, Punjab and West Bengal and others still included provisions for apportioning work to prisoners based on caste. Even after this report came out, it took the intervention of high courts to make sure that these manuals were amended to get rid of these practices.
When it comes to phone calls, nearly all states (including Maharashtra, where Vinod is lodged) have not bothered to update their Rules and Manuals to allow this form of communication.
This failure to update the manuals may not be just about apathy or laziness, however. Maja Daruwala, the veteran human rights lawyer and former NHRC special monitor for prisons, believes that restricting easy communication with the outside world is meant to limit and censor prisoners' ability to complain about conditions inside.
It should be noted though that some states have provided the option to speak to relatives and lawyers on the phone without updating their manuals. Haryana and Karnataka, for instance, have both introduced paid systems for prisoners to make calls; every day in Haryana and once a week to two numbers in Karnataka.
For Sahba Husain, the partner of Bhima Koregaon accused Gautam Navlakha, the decision of the prisons in Maharashtra to return to only letters and physical mulaqats is "like a punch in the gut."
For Navlakha to be taken to jail in the Bhima Koregaon case – with question marks over planted evidence, the use of Pegasus to hack accused like Navlakha, and Justice DY Chandrachud's dissenting observations about why the investigation was flawed – was already a blow.
This was made even worse by the fact that he was ordered to surrender to custody in April 2020, when COVID, for which Navlakha is a high-risk candidate, was spreading and the courts were otherwise ordering decongestion of prisons.
However, the fact that Husain will no longer be able to speak to Navlakha on the phone, which she has been able to throughout his custody so far thanks to the rules brought in because of the pandemic, is the "biggest blow" she has had to face.
"How are we supposed to cope with this? How are we supposed to know how they are doing," she asks plaintively. "I don't even know how he is. There is no option to call family, friends, even his lawyer. It's not easy to go and visit, his sisters are also above 75 and live in Bombay; to go through that 7-8 hours in a line is impossible."
Husain lives in Delhi, making visits to Taloja Jail in Mumbai extremely difficult. The only other option she is currently left with is to correspond with Navlakha by letter – which means getting updates on his health and condition only every three weeks or longer.
Navlakha is 70 and already suffers from a number of medical ailments. Several of the other accused in the case have seen their medical condition worsen during their time in jail, waiting for their trial to begin.
Telugu poet-activist Varavara Rao developed such serious problems that the Bombay High Court had to order his release on medical bail. Eighty four-year-old Stan Swamy died while in custody in this case.
"It is very stressful to not know how Gautam is. I'd go so far as to call it emotional torture," Husain says. It is a torture that she knows is set to go on for a long while, with no likely date for a trial, and with the accused having to approach the courts repeatedly for the most basic facilities.
The jail notoriously refused to allow Father Stan Swamy to get a sipper cup to drink water despite him having Parkinsons, and initially refused to accept a set of replacement spectacles sent by Husain for Navlakha after his glasses were stolen.
Intervening in the matter by pulling up Taloja Jail officials, the Bombay High Court in December 2020 had called for workshops to be conducted for jail officials, as “humanity was of utmost importance, everything else is subsequent.”
The workshops unfortunately don't seem to have helped.
'Poor People Have Gone for Years Without Contact'
As Husain notes, the problem of communication is not just about Navlakha and the other Bhima Koregaon inmates, even though things are made tougher for those accused under draconian laws like the UAPA.
"It's about all of them. What about outstation inmates, whose families cannot easily travel there?" she asks.
Senior advocate Sanjay Hegde notes that it is a poorly-kept secret that there are ways to be able to make phone calls even in jails where calls are not allowed, through mobiles owned by inmates with money and influence, or even by arrangement with guards. But this is not a system which everyone will be able to take advantage of.
"For the very poor, unless they've got very big inside the prison, they aren't going to be able to have access to a mobile phone," Hegde points out. Poverty and illiteracy rule out both the traditional options for contact, ie letters and visits. "So in the case of poor people, they have gone on for years without any contact whatsoever. Because the man is inside, the wife is in the village. It costs her so much to come there, that they just can't."
Human rights lawyer Vrinda Grover makes a similar point. "Invariably, the brunt will fall on the poor. Their families will find it hard to come to meet them. There will be migrants who will be arrested. Even within a large state, like Maharashtra or Uttar Pradesh, it will be very hard for people to visit," she says.
The illegal use of secret mobile phones by those with money or power drives home the unfairness of this state of affairs.
In September 2021, a Delhi Police probe found that the Chandra brothers, in Tihar Jail for the Unitech property scam, were using the official landline of a jail superintendent to run their business from jail, and had access to mobile phones for personal calls.
On the other hand, people like Archana will now have to contemplate the long and expensive trips to jails just to get the smallest update on their loved ones' lives.
This unequal state of affairs is an inevitable consequence of a system which refuses to officially recognise the right of prisoners to communicate with family members by phone.
Do Prisoners Have a Legal Right to Phone Calls With Family, Lawyers?
The Supreme Court is very fond of quoting a line by Justice Thurgood Marshall of its American counterpart, that "a prisoner does not shed his basic constitutional rights at the prison gate".
In a long line of cases from the late 1970s onwards, including Charles Sobhraj's, the Sunil Batra cases, the Francis Corallie Mullin case, and more, the apex court has repeatedly held that prisoners – even convicts – retain their fundamental rights under Articles 14 (equality), 19 (freedom of speech etc), and 21 (life).
These rights are obviously subject to restrictions by nature of their confinement in jail, but they are not lost.
As far back as 1983, the Justice AN Mulla All-India Committee on Jail Reforms had expressly clarified that prisoners have a right to dignity and privacy, to communicate with the outside world and to effective legal representation. The ability to speak regularly to family members and lawyers evidently falls within these rights.
Given the difficulties that so many prisoners – from the indigent and illiterate to those with families who live in different cities – would face in exercising these fundamental rights if contact is only allowed through letters and physical mulaqats, the ability to use phone calls for these purposes is a matter of legal right.
Maja Daruwala says the legal position is clear.
"The jurisprudence of this country makes it amply clear that prisoners have rights, they must be provided with conveniences for those rights and not be deprived unreasonably of them. You don't need massive legislation or policy level interventions to say that it is permissible for prisoners to use the phone on a reasonable basis, to talk to their lawyers, talk to their families."Maja Daruwala
Daruwala explains that letting them use a phone is not a favour, it is a minimal convenience towards their rights, and so depriving them of that option is a violation of their fundamental rights.
This is not just about undertrials – even though the deprivation of regular communication does seem extra perverse when it comes to those who are supposed to innocent until proven guilty.
Even for convicts, "there is no reason why while incarcerated you can’t have phone, or books, or medicines or recreation," Daruwala argues. "When the state punishes you all it is supposed to take away is your freedom. Further deprivations that are intended to cause a vengeful punishment go beyond to exacerbate suffering."
Senior advocate Mihir Desai, another expert on human rights law, notes that not giving prisoners the option of phone calls or allowing this in an ad hoc and uneven manner violates not just the rights of the prisoners, but those of their family members as well.
"The whole purpose of imprisonment is for it to be reformative rather than punitive," Desai says. "So I see no reason why it should not be allowed."
Is There Any Good Reason to Deny This as a Right?
"How does it hurt the system to allow a phone call where you just exchange basic news and updates with your family," asks Vrinda Grover. "You just get to know that the person is well. And if they need any legal assistance, they can reach out to their lawyer."
All of the legal experts The Quint spoke to agree that jail authorities across the country who are either not providing phone facilities, or providing this in a limited manner, are likely to cite security as a reason for their actions, or even claim it will be an unnecessary burden.
They also agree that neither of these reasons would really offer any justification to avoid giving prisoners a right to a phone call.
"It's not as though allowing someone to talk on the phone is going to lead to mayhem in society," argues Grover. "In fact, this method has been tried out during the last 1.5 years of COVID and it did not cause any crime or jail break. Even if we see this as a trial run, it does not jeopardise the security and safety of prisons or prisoners, and doesn't lead to any crime."
"It is not enough to say there is a risk; you have to measure it and then create only such restrictions as are reasonable to meet the challenges," explains Daruwala. "Don't just put in blanket restrictions. Find a system of use that can accommodate phone use as well as ensure security concerns are met."
Hegde, like Grover, notes that the pandemic experience shows how all this can work while meeting concerns about security and logistics. There can be a rigorous verification process, as was followed during this time. There can be a time limit, there can be fewer calls than during the pandemic.
"Since these rights have already been provided now, they shouldn't be taken away," he suggests.
Is There a Way to Fix This Problem?
At present, with most states failing to recognise the right to phone calls, the only solution for people like Archana and Vinod, and Sahba and Gautam, is to file applications in the relevant high courts and try to get them to direct the authorities to ensure facilities for such calls.
In an ideal world, the National Human Rights Commission (NHRC) and its state equivalents should have been the forums for prisoners and their families to push for this right, whether with state governments or the courts.
Unfortunately, most activists and lawyers have little hopes from the commissions. "The NHRC is not willing to play to its mandate," says one who does not wish to be named. "It sees itself as a state functionary, rather than as a watchdog."
There are two other approaches that need to be taken to address this problem as a bigger picture.
First, on a more practical level, there needs to be a push to implement the Model Prison Manual of 2016 across states, the most likely option for which is through the courts.
This does not even require an entirely new case to be filed – it can be sought as an application for directions from the Supreme Court in its existing case, 'Re-Inhuman conditions in 1382 Prisons'.
The apex court had appointed a special committee in 2018 headed by former Supreme Court judge Amitava Roy to look into the implementation of the 2016 Model Prison Manual, among other things.
The committee submitted its report to the Supreme Court in February 2020, but it was never made fully public and the court has not yet passed any directions based on it – this could easily be revisited as the court continues to hear the case.
Secondly, there needs to be some soul-searching not just by governments, but civil society as well, about why we don't offer something that seems so basic from a common-sensical and moral point of view (let alone a legal one).
"The more important question is: why is this not being provided?" says Maja Daruwala. "What is it in the culture of the prison administration that deprives people of fundamental basic needs?"
"We have forgotten people behind bars," says Vrinda Grover. "It is only because now there are activists there that these issues are coming to light," she points out, noting that this issue has only come to light in a non-COVID context because of the press release issued by Sahba Husain regarding the reversion of the rules.