It is time that the right to health becomes a reality, in letter and spirit to every person, irrespective of their incarceration status. This will have to be done through a wide scale, public health campaign, and rapid recruitment of qualified doctors with training in evidence-based medicine that can provide adequate care to prisoners.
DEATH be not proud, though some have called thee
Mighty and dreadfull, for, thou art not soe,
For, those, whom thou think’st, thou dost overthrow,
Die not, poore death, nor yet canst thou kill mee.
From rest and sleepe, which but thy pictures bee,
Much pleasure, then from thee, much more must flow,
And soonest our best men with thee doe goe,
Rest of their bones, and souls deliverie.
Thou art slave to Fate, Chance, kings, and desperate men,
And dost with poyson, warre, and sicknesse dwell,
And poppie, or charmes can make us sleepe as well,
And better than thy stroake; why swell’st thou then?
One short sleepe past, wee wake eternally,
And death shall be no more; death, thou shalt die
– English poet John Donne, ‘Sonnet X’
It has been good law in India since Bandhua Mukti Morcha versus Union of India (1983) that the right to health is a fundamental part of right to life under Article 21 of the Constitution.
But much before that, the right to health was first articulated in the World Health Organization Constitution of 1946, which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…” Since then, the right to health has been an important part of universally accepted human rights jurisprudence.
However, what happens when you are a political prisoner in India? These rights are vitiated, and the process becomes the punishment. I write this piece in the backdrop of the death of Kashmiri political leader, Altaf Ahmad Shah.
If you are an active Twitter user, you would have seen his daughter Ruwa’s tweets, imploring the executive authorities, including The Prime Minister and the Union Home Minister, seeking proper medical treatment for her father, who suffered from a catena of illnesses, including metastatic renal cancer.
Indian prisons have been at the receiving end of multiple critics who argue that their treatment of prisoners is in gross violation of not just international human rights standards, but also the Indian law itself.
On September 21, she tweeted, “My father who is critically ill with Pneumonia, uncontrollable diabetes & chronic kidney disease has been requesting the jail authorities to move him to proper hospital instead of jail ICU where he is currently on oxygen support”. In yet another tweet, she argued that the law could take its own course, but medical care should not be delayed.
In an order dated October 3, the Delhi High Court had directed that Shah should be shifted to the All India Institute of Medical Sciences (‘AIIMS’), Delhi after it considered “the totality of the circumstances and in the interests of justice”. The high court had further held that the right to have adequate and suitable treatment is a part of the fundamental right as enshrined in Article 21 of the Constitution.
The Jail Superintendent was to carry out the order immediately; however, Shah was transferred to AIIMS only a few days later despite the order. He finally passed away on October 11.
Ruwa tweeted, “Abu breathed his last at AIIMS, New Delhi. As a prisoner”.
This story is hardly the first of its kind. Fr. Stan Swamy, a Jesuit priest and tribal rights activist, and one of the co-accused in the Bhima Koregaon case, was repeatedly denied bail despite suffering from Parkinson’s disease, and was unable to even bathe and feed himself. Despite this, a sipper and a straw, as well as a sweater, socks and a blanket, were also denied to him in prison, and he finally died in custody after contracting COVID.
In February 2022, the United Nations Working Group on Arbitrary Detention declared that Swamy’s detention was arbitrary and his death “utterly preventable.”
How do we ensure the healthcare of prisoners when there are no doctors for primary care, let alone specialist care? When prisoners cannot access basic care, must they not be allowed to seek basic care outside? And if they are even directed to be shifted to a hospital, should they not be shifted immediately to the hospitals?
All such arrests bring forth two issues — illegal detention under terror laws, and the issue of bail once detained. Much has been written about the considerations of bail (See, for instance, here,here, and here).
Right to health in prisons for political prisoners
Let us look at some recent cases of political prisoners in India, and how they were denied medical care in prisons.
On September 8, trade unionist, activist and academic Vernon Gonsalves, an accused in the Bhima Koregaon case who was lodged in the Anda Cell of Taloja Central Jail, was diagnosed with dengue and likely pneumonia. It was not until an application was made to the National Investigation Agency court, that he was shifted to a private Hospital for treatment.
In yet another case related to an accused person the Bhima Koregaon matter, singer poet, writer and performer Sagar Gorkhe had to go on a hunger strike, expressing apprehension about contracting malaria and dengue, as Taloja is infested by mosquitos. His co-accused, septuagenarian activist and journalist Gautam Navlakha was not allowed a mosquito net. Notably, the court had allowed dismissed former policeman Sunil Mane, also lodged in Taloja jail, to use a mosquito net. This dichotomy between the treatment of political prisoners and their fellow inmates is a blatant violation of the rights under Articles 14 and 21 of the constitution.
Siddique Kappan, a journalist arrested under the Unlawful Activities (Prevention) Act (‘UAPA’) was denied care for COVID, despite contracting it. The Supreme Court had to direct the Uttar Pradesh government to provide him care, five days after he tested positive.
In Pt. Parmanand Katara versus Union of India (1989), the Supreme Court held as follows: “The patient, whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.”
As political prisoners, the accused have to languish in jails for years, as trials under the UAPA are seldom completed. Even if completed, the conviction rate is terribly low. UAPA, is, in that sense, a public health problem in itself.
A study conducted by bioethicists at Harvard, has found that the majority of incarcerated individuals in India lack access to adequate, if any, medical or mental health care from health care professionals. The study also found that those in Indians prisons generally have difficulty receiving a trial or being granted bail, are housed in substandard and harsh conditions, and face inhumane methods of solitary confinement. Indian prisons have been at the receiving end of multiplecritics who argue that their treatment of prisoners is in gross violation of not just international human rights standards, but also the Indian law itself.
Courts might step in in some cases, but it is impossible that they will be able to intervene in every case, given the large pendency of cases and the huge number of undertrials.
It is well-documented that it is not just physical but also mental health of prisoners that needs to be protected. A paper published in weekly peer-reviewed general medical journal, The Lancet notes that prisoners in India are twice as likely to die by suicide as the general population. It is also well settled law, and repeatedly reiterated by the Supreme Court in In Re Inhuman Conditions in 1382 Prisons (2016) and Sunil Batra versus Delhi Administration (1978) that it is a constitutional duty of the State to provide healthcare to the prisoners in custody. However, conditions in prisons for inmates, who are mostly undertrials, are terrible, to say the least.
Last year, the Bombay High Court noted that jails in Maharashtra had 112 sanctioned posts of medical officers in 47 prisons across the state. There were 32 doctors for prison inmates, with only two having MBBS degrees. All the others were AYUSH Doctors.
A public health reimagination of Indian prisons
There is a lack of adequate, and qualified healthcare staff and medical equipment in prisons in India, as it is around the world. This frustrates the issue of delivery of healthcare to prison populations. Add to this the persecution and the ostensible bias against the political prisoners, and you have an even bigger problem on your hands.
With polarisation, political prisoners are uncared for by the broader country at best, or at worst, have them wishing that they would die. In such cases, advocating for prisoner’s rights becomes difficult. To force the State to look into these issues is a fool’s errand. However, it is imperative that the State looks into providing all prisoners, including political prisoners, not just adequate care when they are sick, but also preventative care. The right to healthcare does not merit only a legal consideration but also a serious discussion at a policy level.
Prisoners who are terminally sick, old or medically fragile should be released from prisons and if need be, be confined to house arrests.
It is no doubt that the carceral fantasies of the Union Government are sadistic, and this worsens when the inmate is a political prisoner. Courts might step in some cases, but it is impossible that they will be able to intervene in every case, given the large pendency of cases and the huge number of undertrials.
The Prison Policy Initiative of the United States notes: “People in prisons and jails are disproportionately likely to have chronic health problems including diabetes, high blood pressure, and HIV, as well as substance use and mental health problems. Nevertheless, correctional healthcare is low-quality and difficult to access.” It is time that the right to health becomes a reality, in letter and spirit to every person, irrespective of their incarceration status.
This will have to be done through a wide scale, public health campaign, and rapid recruitment of qualified doctors with training in evidence-based medicine that can provide adequate care to the prisoners. Notwithstanding that, prisoners who are terminally sick, old or medically fragile should be released from prisons and if need be, be confined to house arrests. This will also reduce the need to provide extensive care that is complex or transfer them to outside hospitals when the State does not have resources to do so.
But all of this requires commitment: a commitment to adhere to human rights principles, and constitutional values; a commitment to learn lessons from how the pandemic wreaked havoc on our prisons; a commitment to move away from the massive underspending on prisoner health; a commitment to recognise and mitigate the public health impacts of incarceration.
Note: The author was one of the lawyers who appeared in Bhima Koregaon co-accused, writer, poet and activist P. Varavara Rao’s case before the Supreme Court.