Jail Diary: (C) On Independence Day: An Undertrial’s Thoughts

Jail Diary Entry of 15th August 2005
It has been a week since I turned 28: flowerbeds we planted a month ago alongside the two-feet wide pathway, which circumbulates this ‘high security complex’, are resplendent with riotous blossoms, the transience of which is not entirely lost on me. This forenoon, the recently appointed Minister (Home & Jail) has been invited to preside over some sort of a ‘cultural program’ at the Prisoners’ Club in the Old Octagon, where he is expected to distribute carpenter’s tool-kits and sewing machines to life-termers who have served out their fourteen-year sentences, and will be set free today. Visitors not being permitted on holidays, I expect to meet no one- Papa, Mummy, SNT et al- today, and perhaps also tomorrow.

Another week of waiting begins.
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Possibly for the first time in my relatively short life, I begin to understand the fuller significance of Independence Day (ID), paradoxically while I’m locked-up in prison: it is not Pandit Nehru’s ‘tryst with destiny’ speech, with its beautiful metaphors and an unfortunate horological error (‘when the world sleeps, India awakes…’- as a matter of fact, more than half the world was wide awake), that comes to mind but a far more universal truth- episteme- articulated by the legendary South African cardiac surgeon, Dr Christian Barnard: recounting his experience with the first ever human heart transplant in history, he writes that ‘one who has not experienced darkness cannot see light.’ The plain truth is that up until forty-five days ago, I had taken my freedom for granted: it was a condition I was born into, and very frankly I knew of no other; the notion that it could as easily be taken away did not cross my mind, and in that sense at least Mr Sood (see entry of 13/8) is right: opposing my bail before the Hon’ble Chief Justice, the flamboyant lawyer proclaimed that I ‘exercised my freedom with impunity’. But I find it rather difficult to believe that a majority of my fellow citizens don’t, including Mr Sood himself. In fact, the phrase ‘freedom is my birth right’ implies a certain level of irrevocable impunity: that the exercise of freedom should necessarily be done without constraint, or fear of consequences. However the ‘exercise of freedom’ cannot be given to mean that one can take another’s freedom with impunity; to think that freedom as a right can be divorced from freedom as a duty defeats its very function. The question then is: at what point does Society acquire the right to take away a person’s freedom? The theoretical answer is clear: at the precise point when that person’s freedom becomes incompatible with its own. In praxis however, this clarity gets lost in the various interpretative traditions this question evokes.

Admittedly, from my peculiar point of view, the issue of freedom cannot remain a matter of academic curiosity but instead enlarges itself into a subject of existential concern; in fact, at the risk of sounding melodramatic, it has become ‘a matter of life and death’. Broadly speaking, there are three alternative paradigms- legal philosophies- out of which I’ve already expounded, very briefly, on two (see entry of 9/7). First, a person is guilty- i.e., deprived of his freedom- till he establishes his innocence. Secondly, he is to be presumed innocent- and hence a free man- until his guilt can be proven by persons- or agencies- that accuse him. There is a third also, which brings into play the greatest possible measure of discretion on part of society- and state’s- judicial apparatus: ‘the Principle of Graded Complicity’, in which a person’s guilt (translated as deprivation of personal freedom) is in direct proportion to the level of ‘suspicion’ the prosecution’s investigation (collection of evidence) of the offence gives rise to: is the presented evidence sufficient to establish complicity even before the commencement of trial? On an intellectual spectrum, this third paradigm is in remarkable proximity to the first since it accepts the possibility of a person’s guilt till he can otherwise prove himself innocent, thus sanctioning his ‘lawful enslavement’- the condition of every undertrial prisoner- on as flimsy a ground that the novice Superintendent of Police supervising the investigation, as is my case, found the accused rather ‘arrogant’ (this is what he told his superiors anyway). What the officer doesn’t realize it that ‘impunity’, as he sees it, comes not only from a sense of immunity- something I couldn’t possibly have deluded myself into accepting, since I did go for questioning of my own accord, and with a packed suitcase- but also because the person believes firmly in his own innocence. Why then go with a suitcase? Simply because while I am convinced of my innocence, I am also equally- if not more- certain of the absurd extents to which my Prosecutors had gone to ‘frame me’, a fact that can be evidenced from day before yesterday’s proceedings: the legal has unfortunately become viciously personal.

The fact is that most prisoners are here due to two reasons: one, personal rivalries not only between parties to the alleged offence but also more significantly, between the prosecuted and the prosecution itself; two, the fact of material expendability of the prisoner, indicated most often by his poverty (broadly defined here as the paucity of wherewithal to advance one’s interests vis-à-vis the Establishment). In the first category are ‘prisoners of personality-politics’ and the second is constituted of ‘prisoners of poverty’. Between them, precious little space is left for ‘prisoners of penalty’: people who have actually committed the offence they are charged with. While I would most obviously put myself in the first bracket- perhaps more a prisoner of politics than personality- the question of freedom becomes more pertinent to the ‘prisoners of poverty’- those unfortunate souls who form my present and immediate society. On the eve of India’s 58th Independence Day, I choose to speak out for these silenced creatures, the singularly most ‘banal’ victims of the contemporary state and its rationally devised system of ‘norms’, which as this analysis will reveal, has become the most oppressive technology responsible for their condition: the application of Foucaldian archaeologies in the context of the Indian Penal System yields an equally elaborate- but not as ‘discreet’- use of Power.
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The technology for the systemic use of power operates at two levels: one, the performance of policing expressed both as reduction in reported crimes and increase in the number of convictions secured against them; two, the valuation of lower-judiciary (below the level of High Court) in terms of the proportion of convictions in relation to acquittals awarded by a presiding officer. Not surprisingly, both these levels justify- and propagate- each other. The practical impact of this dual technology invested in India’s juridico-penal apparatus is as follows: under-reportage of crimes that can be overlooked- such as white-collar crimes, domestic abuse, and non-homicidal crimes involving the silenced poor and the marginalized- in order to reduce the number of offences that are registered in each thana (police station). This means that only crimes of a severe nature- mostly homicides in which a mutilated corpse is produced- are recorded, the punishment for which is life-sentence or death at the scaffold. Then, once such a crime has been registered, there exists a further compulsion to ‘close the file’: an act that must necessarily result in arrests. Under the circumstances, the temptation to solve the case by ‘framing’ persons considered undesirable (anti-social) or expendable (marginalized) or both. Promptly, a confessional u/s 164- or if that’s too much trouble, then a police statement u/s 161- of the Cr.P.C. is beaten out of them, with the reassurance that the ‘evidence’ is so flimsy that they will most certainly be acquitted by the court. This explains why it is often the ‘history-sheeters’- those who have been convicted previously- that are sent back to jail in what becomes a self-fulfilling vicious cycle. Once the police procedure is completed, the judicial procedure takes over. Here too, since the performance of the trial court is evaluated internally based on the number of convictions- with the kind of pock-faced investigation done by the police, it shouldn’t in the least bit surprise anyone that our nation’s conviction-rate is abysmally low- it is a foregone conclusion that those persons who cannot afford a proper legal defense- which in any case is becoming increasingly expensive- or, to put it differently, cannot make it excessively difficult for the presiding officer to convict, end up in jail, more often than not in total disregard of the evidence brought against them by an equally incompetent prosecution. The reason is simple: a conviction removes all doubts of external influence and bias.

In most cases, the appellate courts usually overturn such systemic-convictions. At this point of time, it is safe to say that the proportion of ‘non-poor’ prison-population is less than 1% (myself included). The ‘System’ thus operates as a ‘filtration-plant’, systematically weeding out the impoverished, the marginalized and the delinquents (‘history-sheeters’), who can collectively be termed ‘prisoners of poverty’. As described above, at the core of this problem- if one chooses to see it as such- lies the technology that seeks to define ‘norms’- reduction in the number of FIRs registered and increased arrests (Police); higher conviction rate (Judiciary)- in apparently altruistic ways.

What this description reveals is that altruism- good intentions- does not necessarily result in beneficial- good- outcomes; they may just as easily be perverted. If anything, this altruism reflects, and is a product of, the narrow interests of a particular section- I refuse to use the word ‘class’ in the Indian context- that can broadly be categorized as ‘the haves and the have-mores’, and to that extent, it can be said to fulfill its purpose: they- the elite- are automatically de-criminalized at the expense of the ‘have-nots’; a fact that breeds a further mythology that ‘poverty breeds criminality’ whereas it is really the System of perverted norms that breeds this notion and provides credence to it, in form of demographical data related to the sociology of crime and indeed whole of the discipline of criminology itself. In fact, it is this attribution, at once systemic and scientific, of criminal behavior to the ‘prisoners of poverty’, which authorizes and justifies the deprivation of their freedoms, both at personal and social levels, where it serves to sanction a more invasive and oppressive system of Surveillance in those localities where they live under the pretext of crime-containment, the philosophy being that ‘prevention is better than cure’. In India, where housing is not merely based on economic criteria (HIGs, MIGs and LIGs- referring respectively to higher, middle and lower income group residents- is part of the official nomenclature of state-run housing board corporations) but also communal (Muslim areas, Brahman-paara etc.), this implies that the technology of surveillance is not restricted to the poor but also sui generis targeted against certain communities as a whole. Yet again, a vicious cycle finds completion, with surveillance feeding on sociological, stereotypical and statistical suspicions of criminality and also giving rise to them: a snake devouring its own tail.

In the final analysis, this carefully constructed linkage between criminality and poverty- a linkage I’ve endeavored today to deconstruct by deciphering the manner in which state and society use Power with respect to its often altruistic norms- becomes both the cause and effect of the deprivation of absolute freedom. To recognize this reality is to accept the fuller meaning of freedom and guarantee its uncompromising universality, thus removing the anomaly that ‘some are more free than the rest’.

I can think of no better way to celebrate- and ‘cerebrate’- this Independence Day.

Jai Hind.
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