Neglect of disabled inmates is gross injustice

Shedding light on the problem of non-availability of public interpreters in prisons in Uttar Pradesh to enable inmates with disabilities to converse with their legal counsel, MOHD. KUMAIL HAIDER explains how this is in violation of such prisoners' fundamental rights as well as India's international law obligations.

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AMIDST the final week of September, 2021, I, as an advocate got an opportunity to argue a matter of public importance before Justices Devendra Kumar Upadhyaya and Ajai Kumar Srivastava at the Lucknow bench of the High Court of Judicature at Allahabad in P.I.L. (C) No. 21784/2021, praying for reforms in the prisons situated throughout the state of Uttar Pradesh.

It was an elating experience to attain an order, wherein my submissions in the petition before the bench were considered in regards with appointment of public interpreters in all the jails of Uttar Pradesh for disabled inmates, as there are some who can neither speak nor hear, causing great adversity to them even for communicating their needs for basic amenities or for conduction of legal interviews with their advocates. The non-availability of public interpreters adversely affects their right of adequate legal representation, warranted by the Indian Constitution as a fundamental right under Articles 21 and 22(1) of the Constitution for such inmates who are languishing behind the bars, without any voice or support, doubling their rigorous predicament.

Lack of communication and support

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 Constitution, as well as under Article 17 of the United Nations Convention on the Rights of Persons with Disabilities (UNCPRD). The latter 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."

Lack of communication due to an almost absolute non-existence of public interpreters in jails throughout the country, who ought to assist disabled inmates, unable to speak or hear, is a mammoth problem that has been hitherto neglected by the State machinery.

Also read: Ask persons with disabilities how to make e-courts disabled-friendly

Effect on adequate legal representation

Justice V. R. Krishna Iyer elucidated the rights of the detenue in respect to legal counsel in the Supreme Court's judgment in the case of Nandini Satpathy vs. Dani (P.L.) & Anr. (1978) by drawing Article 22 in line with Article 20 of the Constitution and opining:

"The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Article 22(1) is that it is fundamental to the 'rule of law' that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a-legal practitioner of his choice."

Contours of relevant legal provisions

India's signed and ratified the UNCRPD in 2007. Article 4(d) of the Convention enjoins States Parties "to 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. It says: "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."

While, in the state of Uttar Pradesh, which has so many disabled inmates languishing behind the bars, it is important to take note of the U.P. Jail Manual, in which Para 457-A mentions that "[u]ndertrial prisoners shall be granted all reasonable facilities at proper times and under proper restrictions for interviewing or otherwise communicating either orally or in writing with their relatives, friends or legal advisers."

The term 'reasonable facilities' provides the minimum standard of necessary features that must in all conditions be there in the prisons for securing fundamental human rights that everyone, including prisoners, are entitled to. Unfortunately, this standard doesn't seem to be presently met in prisons today.

Also read: Union Budget: Disabled Cold Shouldered

Way forward for basic human rights

On several occasions, the higher judiciary has dealt with the rights of prisoners. In its judgment in Sunil Batra vs. Delhi Administration (1979), the Supreme Court answered the question about the fundamental rights of prisoners in this manner:

"Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognises rights of prisoners in the International Covenant on Prisoners' Rights to which our country has signed assent. … [F]undamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration."

It would be helpful to recall the words of the Bombay High Court from In Re: Llewelyn Evans vs Unknown (1926) with regard to adequate legal representation by way of availing public interpreters for the disabled who cannot communicate with their own lawyers, in relation to the human rights warranted to such inmates:

"If the end of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case, and to lay its evidence fully, freely and fairly, before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice – advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very State which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance."

(Mohd. Kumail Haider is a practising advocate in the state of Uttar Pradesh. The views expressed are personal.)