Are We Conscious of the Rights of Prisoners with Disabilities?
By Kalpana Kannabiran
Does India have norms in place for the treatment of prisoners with disabilities and persons with disabilities who are under arrest?
Prisoners’ Rights in India
We have a slew of cases around prisoners’ rights that emphasize their right to dignity, and against cruel and degrading punishment, which has been understood to violate the right to life, guaranteed by Article 21 of the Indian Constitution. In complying with the standards set out in constitutional jurisprudence on this matter, the offence for which the person has been apprehended/convicted is not material. The standard is clear. No person shall be subjected to degrading, inhuman or cruel punishment that is violative of human dignity. The duty of care to be exercised in this matter during pre-trial custody is of a much higher order. These are standards applicable to all custodial situations and to all persons irrespective of caste, sex, race, religion, place of birth or any such differences.
The Veena Sethi case in the early 1980s brought to light the treatment of prisoners with mental illness and their prolonged incarceration for periods ranging from sixteen to thirty years in custody, far in excess of sentences given in most of these cases—without bringing them any substantive relief beyond release from illegal custody and transport and food expenses till they reached home. That was long before there was a consciousness or political articulation of the rights of persons with disabilities—which importantly today includes civil and political rights for prisoners with disabilities.
Diabolical! To the ‘Anda Cell’!
The arrest of Dr. G.N. Saibaba in May 2014 and the conditions under which he is being held in custody was reported in the media. Dr. Saibaba teaches English at Ram Lal Anand College and is a wheelchair user. He has permanent post-polio paralysis of the legs and is 90 percent disabled. He is also a heart patient with high blood pressure and suffers from spinal pain. As a person with severe disabilities deserving of special treatment and care, the manner of his arrest, the grounds and the conditions of custody merit close examination. Whether or not he has Maoist ‘links’ or whether he is a ‘sympathizer’ is not as important. What needs our immediate attention is even more fundamental. As a person with disabilities who requires constant assistance and support, what are the standard minimum rules that must temper the decision to take him into custody, in order that the treatment meted out to him is not construed as cruel, degrading and inhuman—derogatory of the right to life under Article 21 of the Indian Constitution?
After remaining in custody in the Nagpur Central Jail for a year and a half, the matter came up before the Nagpur Bench of the Bombay High Court in December 2015. In an order passed on 23 December, the Court rejected the bail application of Dr. G.N. Saibaba on medical grounds stressing his involvement in “serious crime” and the activities of a “banned organisation” as overriding any concerns for his physical health and well-being while in state custody, going to the extent of saying that all efforts to secure bail for him on medical grounds are nothing but “subterfuge.” The court condemned him to solitary confinement in the ‘Anda Cell’. It is useful to bear in mind at this stage, however, that we are speaking of a person who has been placed under arrest but has not yet undergone trial, and certainly not been convicted for a terrorist offence or offence under the Unlawful Activities Prevention Act.
Be that as it may, the court accepts the fact that “the applicant suffered 90% disability from his childhood. He had also undergone cardiac surgery about 8 to 10 years before.” The medical certificate relied on by the court states that Mr. G.N. Saibaba, suffered from a known case of post-polio residual paralysis with “chief complaints of reduction in left shoulder movements and pain in back for which he has managed conservatively with supportive medication.” He was advised to go through regular treatment for three months and also advised by the doctor in the super specialty hospital at Nagpur to undergo a coronary angiography. On the basis of these medical records the court concludes that the “present health condition of the applicant…is perfectly normal and is in the same position as it was when he was in jail” [emphasis added].
The fact that his disability and attendant medical conditions places Dr. Saibaba at an unfair disadvantage in conditions of custody and solitary confinement; that the standard of care required for a person with severe disabilities is of a different order from the standard of care for a non-disabled person; that the standard is not met by simply ensuring the maintenance of status quo [although even this is contested by the applicant]; that conditions of incarceration aggravate the risk to life disproportionately in the case of a person with disabilities—are all considerations that do not enter the balance sheet drawn up by the constitutional court. The tenor seems to be that the diabolical acts the complainant is alleged to have sympathized with [his direct involvement is not on record] offset any need for state [and judicial] benevolence. The constitution hung in suspended disbelief.
Finally, in the first week of April 2016, close to two years after he had been first arrested, the Supreme Court of India granted bail to Dr. Saibaba despite stiff opposition from the Government of Maharashtra, reprimanding the counsel for the state in the following words, “You have been extremely unfair to the accused, especially given his medical conditions. Why do you want him in jail if key witnesses have been examined? You are unnecessarily harassing the petitioner.” (The Wire, 4 April 2016).
Public Authorities, Disability Rights and Constitutionalism
It is useful for the authorities who arrested Dr. Saibaba and ordered for him to be retained in custody to be informed of India’s commitment to the UN Convention on the Rights of Persons with Disabilities. Article 4 (d) enjoins states parties “[t]o refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention.” What are the specific protections for persons with disabilities in relation to state custody? Article 15(1) of the UNCRPD is immediately relevant: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 15(2) of the Convention places an obligation on the state to protect persons with disabilities from cruel degrading or inhuman treatment and punishment: “States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
The norm of substantive equality well established through constitutional jurisprudence in India speaks of the principle of equality that necessarily includes special treatment for persons who are vulnerable. The denial of special provisions, appropriate assistance, and specialized health care access to a person with disabilities in custody—who uses a wheelchair and has special health care needs arising from chronic illness—comes firmly within the meaning of degrading, inhuman and cruel treatment in derogation of the state’s obligation under the UNCRPD. Particularly where a prisoner with disability requires support and assistance for daily living, placing such a prisoner in solitary confinement and denying the right to accessible facilities for personal care and hygiene is violative of the right to dignity and bodily integrity—both guaranteed under Article 21 of the Indian Constitution but also under Article 17 of the UNCRPD that simply and pertinently states that “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”
The Rights of Persons with Disabilities legislation that ought to set out these standards in clear and unequivocal terms has been ever in the making in India. The absence of specific legislation, however, need not deter us from the path of justice. Article 14 of the Indian Constitution that sets out the substantive right to equality before law and Article 21 that sets out the framework for the right to life [with dignity], as it specifically applies to prisoners, should at this time be read with the UN Convention on the Rights of Persons with Disabilities which India has ratified. This is till such time that we put in place policies and national legislation that mandatorily provide for special services and basic needs that prisoners with disabilities might require, and prioritize the conditional and compassionate release of prisoners with high support needs.
The demand for treatment that is sensitive to the rights of persons with disabilities, to dignity and physical integrity, and to their specific needs, is therefore, not unprecedented. Where prison and custodial facilities are not equipped at all to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort.
In the sixty-five years since its adoption, the Constitution of India has provided the opportunity and space for an enlarged and expansive enunciation of basic rights, moving from black letter interpretation to an interpretive tradition that upholds the spirit of the fundamental rights to life, liberty, and equality with dignity, among others. Although there have been contestations, peaks and troughs in the ways the constitution has interwoven with lives and worlds, there is little doubt that it has provided the framework for an assertion of fundamental rights importantly against the state, but also against private actors. Prisoners, political dissenters, workers, migrants, minorities, dalits, women, sexual minorities and persons with disabilities have fought back discrimination, exploitation and stigmatization by approaching courts armed with the constitution—a tool of justice. There has been little doubt that in a plural society, and one that has not been able to overcome entrenched forms of religio-cultural and social oppression, the constitution provides the standard of constitutional morality that must in all cases defeat public (including religious) morality. This is especially critical where the latter is found to perpetrate stigmatized identities and labelling that diminish the dignity of persons and oppress them in untold ways.
It is important to recognize that accessibility and support services for persons with severe and profound disabilities are indispensable to the protection of their right to life, bodily integrity, and dignity under the constitution of India. We need a reality check on our prison system and an honest acknowledgement, at least by constitutional courts, that our prisons are simply not equipped to provide custodial treatment that does not erode the fundamental right to life and dignity of prisoners with disabilities. Importantly, we need a re-education on the constitution at the highest echelons of our political order.
(This article is based on my earlier writing on this case in The Hindu—‘The Rights of Prisoners with Disabilities,’ 20 May 2014; and ‘Disability is not Divinity’ 16 January 2016—and a letter petition I submitted to the Supreme Court of India (under its epistolary jurisdiction) in June 2014, that was not listed for hearing).
Kalpana Kannabiran is a sociologist with an interest in questions of justice and constitutionalism. Her work has focused on interdisciplinary law, social movements, gender studies, disability studies, anti caste philosophies and indigenous rights among others. She is the author of Tools of Justice: Non Discrimination and the Indian Constitution (Routledge 2012) and editor of Violence Studies (OUP 2016). She is currently with Council for Social Development, Hyderabad.
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