Lawless Jails of Kashmir

Author: Salheen Manzoor

Advocate at J&K High Court

It is said none truly knows a nation until one has been inside its jails. During the Mughal period, Prisons were considered to be the place of torture. Treatment of prisoners was inhuman. However, with the advent of British rule, prison reforms started in India. Tremendous efforts for the reformation of Indian prisons were made. Jail enquiry committees in 1836 and 1862 expressed concern for the insanity conditions of the Indian prisons. As a result of the recommendations of the committees, the Prisons Act 1894 was enacted. By this Act, emphasis was made on safe custody of prisoners and under-trials and also on their reformation, rehabilitation in the society. In 1951 Dr W C Reckless technical committee recommended that correctional measures should form an integral part of the Home department of each state. It was emphasised that the sole purpose of sending an offender to prison is to transform him into an honest and law-abiding citizen of society.

However, this all seems to have been kept on bookshelves of libraries and in the hard disks of the computers. In the Union Territory of Jammu & Kashmir, where the jails are flooded with the prisoner mostly under-trials, the administration doesn’t bother to adhere to these recommendations nor do they show any regard to the directions passed by the Hon’ble supreme court of the country from time to time. Day in and day out the guidelines issued by the courts in a catena of judgments are being ignored and flouted by the Prison administration. The condition of jails is pitiable in the Union territory.

The Supreme Court has observed that Art 14,19 & 21 are available to the prisoner as well as freemen and prison walls do not keep out Fundamental Rights (T V Vetheeswaran V. State of Tamil Nadu). Yet the jails in the Union territory of Jammu & Kashmir with an exception of a few do not have a qualified professional doctor available in the jail. Recently an under-trial was facing a serious Urological problem in District jail Pulwama. Though the concerned court issued a direction to the jail authorities to get the said under-trail medically treated, the jail authorities expressed their inability to do so. In response to the said direction, the superintendent of the said jail stated that the condition of the said under-trail is severe but because of the absence of a doctor in the said jail, the jail authorities cannot do anything in this regard. We moved a shift petition before the court so that the said under trial can be shifted to the central jail which perhaps is the only jail in Kashmir valley having a doctor available round the clock. But due to overburden and long-pending of cases, the petition is yet to be decided by the hon’ble court and under-trial continues to suffer in jail. He continues to live at the mercy of God. No guideline of the Supreme Court or any recommendation of the expert committee seems to be coming to the rescue of the said under-trial whom the court may after completion of the trial find innocent.

Another issue faced by the prisoners in the jails especially in the jails of Union Territory of J&K is the despotic approach adopted by the jail authorities. Even though the provisions of the Code Of Criminal Procedure are very much clear regarding the place or jail where an under-trial is to be kept, still the jail authorities time and again ignore the provisions of law. The Supreme Court has in Syed Sohail Sheikh Case (AIR 2013 SC 1680) held that “the continued detention of the prisoner in jail during the trial or inquiry is legal and valid only under the authority of court before whom the accused is produced or before whom he is tried”. Thus the prison or jail where the under-trial is detained is a place identified by the competent court.

It is axiomatic that transfer of a prisoner from such place of detention would be permissible only with the permission of the court under whose warrant the under-trial has been remanded to custody. But the jail authorities in this part of the world understand no law and act as dictators in their own jails.

Recently there was a fire incident in the District Jail Pulwama and according to the Jail Authorities, the chaotic situation was alleged created by some prisoners. Instead of setting up an inquiry committee to ascertain as to what lead to this incident and seeking an explanation from the jail authorities as to why were they unable to handle the situation, the Superintendent of the said jail has issued an order to shift some under-trials to distant jails as a measure of punishment. The said Superintendent has forgotten the basic principle of the criminal jurisprudence that a person is presumed to be innocent until proved guilty beyond a reasonable doubt. The said prisoners have again been made the scapegoats to cover up the inability of the jail authorities to perform their duties.

Interestingly one of the prisoners who is being shifted from the said jail is Irfan Ahmad Pathan. Irfan was arrested in 2020 by the police for allegedly assisting and aiding militants. Irfan’s father Mohd Ayoub Pathan was also arrested by the Delhi Special Cell in Dec 2020. The Delhi Police claimed to have recovered some ammunition from Ayoub Pathan but the claims were refuted by a senior police official of Punjab police. Irfan has now been shifted to the kishtwar jail which is hundreds of kilometres away from his home, while his father continues to be in Tihar Jail. Irfan has his mother and 2 unmarried sisters at home. His mother has started to work in various houses to make both ends meet. She and her daughters have not met Ayoub Pathan since his Arrest in December because of the lack of enough sources to travel to Delhi. However, they would go to District Jail Pulwama every other month to meet Irfan. Now that he has been shifted to Kishtwar Jail, the family is in serious distress as they won’t be able to afford the travel to Kishtwar. The trial of Irfan Pathan is going on in a special TADA/POTA court in Srinagar and the trial is due to suffer due to his lodgement in a distant place. The trial court may find Irfan innocent once the trial ends but the question remains who pay Irfan for the time he lost all these years, who and how will the distress suffered by the family be compensated.

I deliberately have not touched the issue of psychological aspects of prisoners which the world is today focusing on because for us that is still a pipe dream. In this part of the world, prisoners don’t seek facilities of comfort as is the case in different countries but humane treatment so that their jail life becomes a little less harsh.