Lawless Jails of Kashmir

2 May, 2021

It is said that none truly knows a nation until one has been inside its jails. During the Mughal period, prisons were considered to be places of torture. The treatment of prisoners was inhuman. 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 inhuman conditions in 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 and rehabilitation in society.

In 1951, the 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 sole purpose of sending an offender to a prison is to transform him into an honest and law abiding citizen of society.

However, all this seems to have been kept confined to bookshelves of libraries and in the hard disks of computers. In the Union Territory of Jammu & Kashmir, where the jails are flooded with prisoners, 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 are being ignored and flouted by the prisons administration. The condition of jails is pitiable in the Union Territory.

The Supreme Court has observed that Art 14,19 & 21 are available to prisoners 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 exception of a few do not have a qualified professional doctor available in the jail. Recently an under-trail 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 jail stated that the condition of the under-trail was severe but because of the absence of a doctor in the jail, the jail authorities could not do anything in this regard.
We moved a shift petition before the court so that the said undertrial 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 over burden and long pending of cases the petition is yet to be decided by the hon’ble court and the under-trial continues to suffer in the jail.

He continues to live on 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 the 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 allegedly created by some prisoners. Instead of setting up an inquiry committee to ascertain as to what led to this incident and seek 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 criminal jurisprudence that a person is presumed to be innocent until proven guilty beyond reasonable doubt. The said prisoners have again been made 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 two 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 qrrest in December because of the lack of resources 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 travel to Kishtwar. The trial of Irfan Pathan is going on in special TADA/POTA court in Srinagar and the trial is due to suffer due to his lodgement to a distant place. The trial court may find Irfan innocent once the trial ends but the question remains who will 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 only a humane treatment, so that their jail life becomes a little less harsh.



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