Where prison facilities are not equipped to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort
We have a slew of cases around prisoners’ rights that emphasise their right to dignity and their right against cruel and degrading punishment, which have been understood to violate the right to life, guaranteed by Article 21 of the Indian Constitution. In complying with the standards set out in constitutional jurisprudence on this matter, the offence for which the person has been apprehended or convicted is immaterial. The standard is clear. No person shall be subjected to degrading, inhuman or cruel punishment that is violative of human dignity; the duty of care to be exercised in this matter during pre-trial custody is of a much higher order. These are standards applicable to all custodial situations and to all persons, irrespective of caste, sex, race, religion, or place of birth.
Treatment in custody
The Veena Sethi case in the early 1980s brought to light the treatment of prisoners with mental illnesses and their prolonged incarceration for periods ranging from 16 to 30 years in custody. This is far in excess of sentences given to them in most of these cases, without bringing them any substantive relief beyond release from illegal custody and transport and food expenses till they reached home. That was long before there was a consciousness or political articulation of the rights of persons with disabilities, which, importantly today, includes civil and political rights for prisoners with disabilities.
We have seen some reports on the arrest of Dr. G.N. Saibaba and the conditions under which he is being held in custody. The fact that needs close and urgent examination here is not whether he has Maoist “links” or whether he is a “sympathiser” or even whether a university professor can be harassed in this manner (although we must separate his troubles in the university from his treatment by the officers of the criminal justice system.) What needs our immediate attention is even more fundamental: as a person with disabilities who requires constant assistance and support, what are the standard minimum rules that must temper the decision to take him into custody, in order that the treatment meted out to him is not construed as cruel, degrading and inhuman?
It would be useful for the authorities who have taken Dr. Saibaba into custody to be informed of India’s commitment to the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Article 4(d) 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.”
The norm of substantive equality, well established through constitutional jurisprudence in India, speaks of the principle of equality that necessarily includes special treatment for persons who are vulnerable. The denial of special provisions, appropriate assistance and specialised health care access to a person with disabilities in custody, who uses a wheelchair and has special health care needs arising from chronic illness, comes firmly within the meaning of degrading, inhuman and cruel treatment in derogation of the state’s obligation under the UNCRPD.
Particularly where 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, but also under Article 17 of the UNCRPD. 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.”
The Rights of Persons with Disabilities legislation that ought to set out these standards in clear and unequivocal terms has been ever in the making in India. The absence of specific legislation, however, need not deter us from the path of justice. Article 14 of the Constitution that sets out the substantive right to equality before law, and Article 21 that sets out the framework for the right to life (with dignity) — as it specifically applies to prisoners — should at this time be read with the UNCRPD which India has ratified. This is till the time that we put in place policies and national legislation that mandatorily provide for special services and basic needs that prisoners with disabilities might require, and prioritise the conditional and compassionate release of prisoners with high support needs.
Vulnerability of women
Recognising the vulnerability of women in custodial situations, the Criminal Procedure Code (CPC) provides very different standards for their involvement in criminal investigation. There are also special standards for the treatment of women prisoners and pregnant women in custody. The demand for treatment that is sensitive to the rights of persons with disabilities to dignity and physical integrity and to their specific needs is therefore not unprecedented. Where prison and custodial facilities are not equipped at all to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort, clearly not the case where Dr. Saibaba is concerned. The investigating authorities must release him from custody forthwith and carry out any investigations they may require, without infringing on his right to human dignity and fundamental freedoms, and in full compliance with the CPC, the Constitution and the UNCRPD.
(Kalpana Kannabiran is Professor and director, Council for Social Development, Hyderabad.)
Source: The Hindu