Stuck between yesterday’s crime and tomorrow’s punishment, under-trial prisoners are Kafkaesque products of an indifferent system.

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| Sep 30, 2014

Under trial by fire

I worked in an under-trial prison because I wanted to understand justice better. Justice is one of those large, dynamic concepts that habitually changes intent and form, playing tricks on your eyes. It also depends on whose eyes you see it from. If justice is about correcting the past for a better tomorrow, how does someone living their today in prison see it? In an under-trial prison, you are still waiting for the court to pronounce its verdict. If you know you are innocent, but are condemned to wait as a prisoner, has this trial for justice already been defeated in its purpose? As a prisoner in an Indian under-trial prison, you are most likely there because you were too poor to furnish bail for the crime (if committed), or afford its surety. Has serving jail time as a punishment for poverty destroyed the hope that defines justice? You are caught between an indifferent government and a slow-moving judiciary with no knowledge of when freedom will come. Even when (and if) it does, there is still society, who has asserted its own verdict on your temporary but tainted absence, to return to. Between yesterday’s crime and tomorrow’s punishment, what construct of justice do you survive on today?

On my first day at the prison, I stood outside the gates and wondered if it would be anything like from the films. There was a large metal door with personnel in khakhi stationed outside. I had to knock on the smaller swing door, and only after scrutiny did I hear the clunk sound of a door unlocked. I don’t think one can ever quite fit into prison setting, but the pretext of social work at a women’s prison is harmless enough to generate no more interest than a raised eyebrow. The khakhi has seen much of such white come and go. The official badge felt empowering, as did the walk into cells flanked by two guards. It ended in front of one of the many short buildings with open courtyards set within the larger prison complex. Inside, there were women going about their chores: washing clothes, feeding children, conversing with guards, or just sitting against the walls. The cells were large, and accommodated several women together, serving as a space to eat, sleep, or sit together. Beside the cells there were low stone platforms, and outside there was a courtyard with drainage blocks for washing. Except for the stories, everything here seemed oddly regular and two-dimensional.

While seeking an answer, I thought it was best to keep myself distant from the object of enquiry. I wanted to empathise and try and avoid all forms of sympathy while in prison. I had prepared to brace myself for any moments of anguish or despair that may arise, because that is what I expected. An ambience burdened with emotion. What was strange was that in reality it was quite the contrary. In my first few days in prison I realized that it was no atmosphere one could typify in terms of description or sentiment. Like homes have familiarity, beds and food. Roads have jams, rage and the radio. Slums have dirt, children and work. These prison cells didn’t really have anything to say, and no desire to want to feel anything. The effect of this vacuum of emotion was harder to resist. I was naïve to think that I could attempt to understand the meaning of justice by staying distant from the people and events I was enquiring about. As an enquirer you had to engage and allow yourself to be transformed by the enquiry. The walls and its inhabitants demanded you be affected.

I got really close to Afreen. She was a similar age, but pregnant. Her husband had physically fought with a boy called Jignesh who had been pursuing her, landing them both in jail. Her husband was in the men’s prison at Arthur Road. She was usually solemn and wore an expression of disbelief, almost like a defense mechanism to remind others around her that she was not one for this setting. The Christian social workers didn’t pay attention to her because she once told us how she used to like to go clubbing and to bars before marriage, and that she wanted to wear her old jeans again. That seemed to reduce her case for innocence. I don’t know if she was guilty of responding to the Jignesh boy or not, but it was important she got her bail on time so her baby could be born outside. Her life post-marriage was penurious, having married someone from a lower class. Affordability of two bails for the family was a harsh challenge, and although she did not say it, I knew that when the money came it would first be spent on her husband’s release. I saw her watch the many babies in prison, feeding or crawling in cells. Months after, I once saw my nephew poised against the bars of a windowsill, replicating in absolute exactness the stance of the babies in prison. Fortune Roulette can be a mind- shattering game.

Numerous babies are born in under-trial prisons in India each year, and are allowed to live with their mothers inside the jail until the age of 6. At times it didn’t seem that bad a deal: if the children were born there, they did not know there was a world outside. At other times it was funny because you couldn’t teach them what cat or hat meant because they had never seen them. There are no children’s facilities within the prison for education or recreation. Kind NGOs like Sahaara Society, Prayas, and Varadh had fought hard for small measures of relief; like a set of painted slides and swings outside in the yard. These children could live at home without their mothers, but children below 6 can’t really. After 6 years, if they have nowhere to go, they are moved to children’s homes run by the government. And prisons can’t compete in abuse and recklessness with these homes even if they tried. So between jail and juvenile home, many of these children are fated to grow up as criminals with not-yet-convicted mothers.

I learned a lot of Bangal words. A formidable number of women prisoners inside were illegal Bangladeshi migrants, unable to speak Hindi or English. There were only two women who could speak Hindi and Bangal, and I used them as bridges connecting my curiosity and the migrants’ emotions. It’s actually really interesting to see how someone tries to express his or her desperation while handicapped by language inability. Like many handicaps, it nurtures other strengths. God, were their eyes powerful. They were like Jamini Roys but with the eyes flashing and darting all over the painting. Their migration defined them so much that I don’t even remember any of their names or individual stories. They were just The Migrants. Most had waddled across the Bangladeshi paddy fields into India with a legitimate 3-month visa. After 3 months of charades, they had managed to find construction jobs and homes in Nalasopara: too convenient to give up and return to paddy fields simply because a piece of paper was now 3-months too-yellowed. Forced first by economics and then denounced by politics, one had to wonder where illegality began and legality ended.

Most of The Migrants live in ghettos across cities and work collectively on construction sites, so it’s easy for the police to seasonally flush them out. Once picked up, they get transported straight into prison as a 6-digit under-trial number. Mostly, the spouses and children for months on end have no knowledge of the mother’s whereabouts. Because the 6-digit numbers inside the prison have no access to telephones (removed some time ago after being considered a security threat), don’t speak the court’s language, have no papers, and no hint of the itinerary to freedom, they become living legends of Kafka’s “The Trial”. Like Josef K, they don’t understand why they are condemned, nobody attempts to explain procedure, and lost in translation, they submit to police van journeys between court and prison like hapless beings. During IPL there are no policemen to take them to court because most are employed for cricket security. I think it was at this point that my curiosity turned into sympathy, a futile and usually self-serving emotion. But at times there’s not much else.

I had a movie-moment once when a girl called Mayuri, by this point my friend, asked me to secretly ferry a note into the other prison section in a notebook to Angela. They claimed they were activists, while the state claimed they were Maoists. They read intellectual books, spoke of Marxist philosophy, and conversed in hushed tones about future plans. Personally I think they watched too many movies about what Maoists do in prison. Still, it made for an interesting friendship. They were the group that looked the least sullen and liked to chat about current affairs and politics. They didn’t always get regular newspapers in prison, so I was the designated harbinger of events from the world outside. In the “outside” world that is exploding with news bites, I have often found that such conversations have become more an exchange of information than meaningful opinion. Devoid of any other source of news, Mayuri and Angela spontaneously questioned and analysed an event I described. They were tough with their stands and uncompromising in their Marxist ideas. I enjoyed this time with them. On a special occasion, they cooked chicken in prison themselves. I pondered over the decision before I sampled it, and I still regret it. Prison-cooked chicken is as tough as its cooks.

Mayuri, Angela and their comrades came from a backward district in eastern Maharashtra. As a state, progress has been skewed with majority development taking place along the western flank centered around the cities of Mumbai, Pune, and the fertile Konkan belt. The Maratha-Kunbi caste hailing from here has also dominated the political sphere, reinforcing the natural inequality of the state. Everybody knows the Maoist arguments, and sometimes we agree with them and sometimes we don’t. We’re usually however, firm against the invocation of violence. These women were not in on accusations of use of weapons or force, but on the grounds of sedition for opposing the state in their dialogue and ideology. One may argue that in some ways this sort of opposition is a strong kind of patriotism. But a fine line distinguishes sedition from profound patriotism, and if you push someone too hard from the wrong side, you run the risk of jostling them over that line. One can’t always easily identify what these pushes may be, but my guess is imprisonment and delayed trials can play a role in re-shaping patriots into felons.

Asha managed to get out. She had been in for illegal prostitution. Legal prostitution is when it’s an individual choice and not commercialised as a collective business or without soliciting in public. It’s an inexistent discrepancy though. Asha was older and almost an aunt-like figure, so asking her for details of what had happened or who had short-changed her into being there seemed unfitting. Her daughter worked in a production studio in Lokhandwala, and together we managed to get her trial papers in order, accumulate the bail fee, and seek legal representation in court. There was this sky blue top she was wearing on the day she was leaving jail, and I remember thinking that the colour was going to look so much better outside in the light. It did, but unexpectedly she looked quite pale. She didn’t have the exuberance of someone you would imagine finally got out of prison. I knew that her dealer was a comparatively decent one, her daughter was supportive, and she was still in touch with her ex-husband. There was nothing disastrous for her to return to so I assumed the realisation of freedom just hadn’t sunk in yet.

Asha still calls me often. She’s always looking for a job. She speaks perfect English, has completed her secondary education, and has basic skills in tailoring and stitching. She’s keen to leave her previous trade, but it’s hard to find someone who will forgive her past and provide a new opportunity. It is true that she was deservedly in prison because she had committed an illegal act. She had served her punishment and it had in turn reformed her into realising she could do better things. Justice doesn’t stop there though, because it isn’t the sole prerogative of prisons or courts. Societal support perhaps plays the biggest role in allowing someone to step out from the old into the new. Most aid workers working with prostitutes or pimps will tell you that it is the hardest space to intervene in, because pulling someone out of the cycle is nothing short of a miracle. The forces holding someone to its centre, like the level of control exercised by a dealer, and the forces pushing someone in; like familial or societal spurning or lack of alternate job opportunities are almost too strong to be fought. Asha probably knew leaving jail that day that she would be held ransom to her past.

There are nearly 4 lakh prisoners in India, of which 2.5 lakh are under-trial prisoners. A large proportion of these have already spent more time inside than their maximum sentence would demand. The logic of an under-trial prison, or putting someone behind bars while their case is still ongoing, is to ensure their presence during the trial. It is meant to be reserved for the “rarest of rare” cases. If it is a non-bailable offense then you are to wait in prison, and if it is a bailable offense then you can get out by paying a bail amount or putting up surety against the bail amount. The majority of people who end up being under-trial prisoners thus are those who are too poor to pay the bail amount. You can also get someone to vouch for you by putting up surety for you, but as Justice VR Krishna Iyer wrote in a 1978 judgment “affluents do not befriend indigents”. The argument Arvind Kejriwal offered against his resistance to pay the bail bond earlier this year was not one seeking special treatment as many media publications claimed. It was in protest of the idea that one must pay anything at all when not yet convicted. A bail payment or a spell in jail is a punishment that has not yet been decreed, and while amounts ranging from Rs.5000-10,000 may seem to paltry to some, it is the reason why there are scores of poor people languishing in under-trial prisons. The amount is simply unaffordable to them.

In 2005 the Supreme Court amended the Criminal Procedure Code to say that no under-trial prisoner would be detained beyond their maximum sentence time, and cases of those who had completed half of their maximum sentence would be reviewed by the court so they can be allowed out on a personal bond with or without surety. Not having been followed across the country, the Supreme Court reiterated this stand earlier this month. People may celebrate this stand as a balm of sorts, but it cannot be construed as addressing the conceptual problem of under-trial prisons.

Prisons are meant to reform and reconstruct, not to destroy. And if destruction is the mandate, then there is no role for justice. Whether your child is born in prison, or you are a migrant whose only legitimate space in this land is prison, or if the state decides your patriotism is not of their colour, once condemned to an under-trial prison you begin to lose your starting point. You’re here, but the court hasn’t told you yet that it’s the place for you. You can’t leave, because it hasn’t said it’s not the place for you. There is no knowledge of the next court date, when legal representation will be found, or when a friend or relative will manage to amass bail amount. With a fading past and no real future in sight, your only certainty is the prison you are in today. So you don’t just wait in an under-trial prison, you start existing as someone who is one with its abstractness.

Justice cradles hope, and hope cradles suffering. The prison was a strange place because I had never seen what sufferance without hope was like. There was absolutely no way to erect hope, so I didn’t know how justice could be constructed. A prison by its very definition condemns you to live through punishment. Without a verdict pronouncing guilt, this forced characterisation imposes upon you and impresses upon society a new identity. Caught between a paralytic government, an arthritic judiciary, and an unforgiving society you are transformed by prison. Not reformed. Between yesterday’s crime and tomorrow’s punishment, there is only a black hole to float in today. I don’t know what next or end points for such spaces can be. I don’t have an answer for the question I set out asking. Perhaps I have only been set back in my attempt to construct a meaning of justice.