On October 3, a Supreme Court bench of Chief Justice of India D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra said that provisions in prison manuals across states that discriminate on the basis of caste are unconstitutional.
The court was hearing the public interest litigation filed by The Wire’s Sukanya Shantha, following her investigative work on the state-sanctioned caste-based discrimination and segregation in Indian prisons. In conversation with Jahnavi Sen, Shantha talks about her investigation, the petition that came out of it and salient features of the Supreme Court judgment.
Below is the full text of the conversation.
Jahnavi Sen: Hello and welcome to this special conversation for The Wire. I’m Jahnavi Sen and with me is Sukanya Shantha. She’s a senior reporter with The Wire based in Bombay. This morning, the Supreme Court of India has given a very important judgment on a case where Sukanya was the petitioner for a change. The case pertained to prison manuals that are in place across the country. Each state has its own, and the caste discrimination that is inherent in these manuals. A bench of Chief Justice of India, D.Y. Chandrachud, and Justices J.B. Pardiwala and Manoj Misra has ruled in favour of Sukanya’s petition and said that this discrimination is entirely unconstitutional. We’re going to talk a little bit to Sukanya about this petition and where it came from.
Sukanya, starting from 2020, we had done a series of stories on prisons and the various kinds of discrimination that are inherent in the Indian prison system. The first story that you had written for this was published in December 2020 and was on castes in prisons. There were several other stories on how transgender people are treated, the discrimination against women, women with children who grow up in prisons. Can you talk a little bit about the series that we had done?
Sukanya Shantha: Sure! So, the series that you and I worked on together was a five-part one. It was done in collaboration with the Pulitzer Center for Crisis Reporting.
This series looked at different aspects of prisons and we tried to tell stories about prisons which are not usually out in the public domain. The first story, like you said, was focusing primarily on the discriminatory practices, the caste-based discriminatory practices that have been continuing in all the prisons of the country. And the story focused on the existence of prison manuals of most states where caste-based labour division, caste-based segregation, and also caste-based provisions existed. Here, if a prisoner is to be given some special privilege, this would be denied to somebody if he or she belongs to a certain caste or community which according to them should not be given because they belong to a community which is habitual to commit crimes.
So prison is a state subject. Every state actually comes up with its own prison manual and if I were to cite a few examples, say, MP, Rajasthan, West Bengal, some of the southern states, very specifically mention castes that actually exist in that particular region. For example, Rajasthan, MP, Chhattisgarh and UP mention castes – the Mehtar community, Jatav community and other communities which are classified as Scheduled Caste.
The manual specifically says that these are the communities which are supposed to actually carry out menial jobs inside the prison. This could include cleaning of toilets, manual scavenging, plumbing work. In case somebody belongs to a barber caste, an example is the mention of the Naik community, they should ideally be doing hair cutting or shaving work in the prison. Similarly, while it is actually assigning menial jobs to communities which are very clearly in the Scheduled Caste list, there are some jobs which are a little more ‘refined, pure, and prestigious’ in the prison and that kind of work has to be performed by people belonging to a higher caste.
It specifically says that people belonging to the Brahmin community will be responsible for handling the job of cooking in the prison or handling the library or handling the administrative work that is carried out there. This is a caste-based division of labour.
Another problem that we came across is about caste-based segregation. Caste-based segregation is a common sight in some prisons of Tamil Nadu, especially in the southern part of Tamil Nadu where caste conflicts are very common. For example, I focused on the story of the Palayamkottai Prison, that is in the southern part of Tamil Nadu, where the prison is divided and barracks inside the prison are divided as per caste.
So, somebody who belongs to a Scheduled Caste, say Pallar caste, would be kept separately in a barrack from people belonging to, say, the Nadar community or a Devar community. While such communities are still an OBC caste, they are still considered far more dominant in these spaces, and that segregation has been continuing in this prison. The segregation was challenged in the Madras High Court where even the High Court had agreed with the rationale behind the segregation. Thus, the practice continued under the High Court’s order.
The third aspect we focused on was the Vimukta community, the so-called de-notified community. When I conducted my research for that story, I somehow missed it in the initial series, but later, as we continued working on it, we realised there are many provisions regarding prisoners who can be moved to open prisons. Most states have something like an open prison. The notification states that only prisoners with good conduct, who abide by all prison rules and laws, and who are not habitual offenders or from a wandering caste or wandering tribe, are eligible. Now, who belongs to a wandering tribe? This refers to de-notified communities that have been historically criminalised. These are the provisions we actually came across.
In some states like Maharashtra, you don’t find these problems, yet the prisons have been actually practicing such caste-based labour practices. We found the same case happening in Telangana, Andhra Pradesh and Odisha. So, regardless of which prison manual mentions these provisions, we found those practices still being carried out in these spaces.
So that’s what the story actually focused on. In fact, the first impact came out soon after the story was published. The first case story that we had actually written in that report, focused on this very young prisoner from Rajasthan, who I think was wrongly implicated in a theft case and the way he ended up in the prison. He was from Bihar, but he was put in a prison in Rajasthan. He was asked to clean toilets there because he belonged to a Scheduled Caste community from Bihar. Obviously, he was shocked that it happened to him because it was inhuman. After a couple of years when he was acquitted in the case, I met him, but he was scarred as he could not believe that it could have happened to him. Since that story focused on Rajasthan, the Jodhpur bench of the Rajasthan High Court ‘suo motu’ picked it up.
And for the first time in 75 years, the prison manual of Rajasthan was changed. So that was the first success that we actually saw. We realised that the court passed an order ‘suo motu’, so even the Rajasthan home department had to actually change the rule which existed for so long.
Jahnavi: As you were saying, the story was published in December 2020, and soon after, the Rajasthan High Court took action, leading to visible changes. However, it’s not common for journalists reporting on injustice to take the matter to court themselves as petitioners. Could you talk a little about the trajectory of how that happened, how this story became a petition that you filed in December 2023? And what happened throughout?
Sukanya: Sure! So, the story happened in December 2020 and the petition happened three years later.
In those three years, I was hoping that something actually works out on its own, like states voluntarily bring in some changes. Look, as reporters, our only greed is that whatever we are reporting should actually have some impact. Not to deny, a substantial impact was seen in Rajasthan, but that was one state. In other states like in Goa, they silently did change the law, but it was not happening pan India. This was concerning, since it was a pan India issue.
In fact, there are a couple of organizations which work on prisons. Informally, I was having this conversation with them because most of them actually do a lot of advocacy work directly with the home department. They do file petitions very often, since reporters, like you said, do not really go to courts.
But somehow, I realised that caste is something that is often absent from discussions about the carceral system – at least in the Indian context. It wasn’t easy to find people who were readily willing to take it up, but I was certain that this was an issue the courts would address. How could a court possibly allow such practices to continue? We knew that if we brought it to court, the courts would intervene and the states would be compelled to make changes.
In the beginning, my lawyer, Disha Wadekar, who was helping me draft and shape this entire case, discussed different strategies around the case. Initially, we thought we could just write letters to all the Chief Justices, saying, ‘This is a well-documented story, and we have evidence to support it.’ However, we soon realised that writing the letter would be just as exhaustive as preparing a petition, and we might not be able to write it pan-India.
At one point, since she is a lawyer practicing in the Supreme Court, we decided to file a petition directly. The work on the petition began around mid-last year. While we were doing that, we came across the issue of the Mukta community, the de-notified community I mentioned earlier.
It was then that we realised the story needed to be expanded even further, and we did that. Thanks to Disha, who spoke to S. Prasanna – the advocate on record in this case – and retired Justice Muralidhar, who decided to take the case up pro bono, we were able to put together a strong team. The petition was then heard before the court.
Jahnavi: Today’s judgment from the judges was truly positive and landmark. We should break down what the judges said – much of it was based on your petition as well as the suggestions you submitted to the court. One part of the judgment focused on labour practices and segregation, with the court expressing shock that these practices are still continuing. Although the 2016 Model Prison Manual, introduced by the Union government as a guide for the states, does not endorse these practices, it also does nothing to mitigate them. So, what exactly did the judges say about this? Could you break it down a bit?
Sukanya: So, all the requests we put forth have been accepted by the court. The court addressed unconstitutional practices that have persisted in prisons for so long, reaffirming their unconstitutionality and ordering their removal. It’s a time-bound decision – the court has mandated that these practices must be eliminated within three months, with a compliance report to be submitted.
The court also reviewed all the relevant constitutional provisions, focusing on untouchability, discrimination, the right to life, and the right to dignity, citing Articles 14, 15, 16, 21, and 23. It has directed each state to eliminate these practices and instructed the Union government to send the 130-page order to all the Chief Justices across the states. A significant emphasis has been placed on the condition of de-notified communities, which I believe is a major success of this petition.
Caste-based discrimination was directly addressed since it was mentioned in the prison manuals. However, discrimination against de-notified communities is not as explicit. For example, there are vague references to ‘habitual offenders’ in some provisions. Habitual offenders could be anyone, including people like you or me, who have been booked under multiple cases.
Also read: From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System
But we also know it’s not you and I. It’s a community that gets targeted very easily, with multiple cases filed against them regardless of their involvement in those cases. They end up in prison far more frequently than people from Savarna communities. The court has paid considerable attention to this and reiterated the Arnesh Kumar judgment, along with a few others, emphasizing that the police are bound to follow them.
It’s more about reiterating existing judgments, which are easily violated for so many years. Additionally, the petition we filed has been disposed of, but the court has decided to keep the case open. The reason for keeping it open is because, despite whether states have these discriminatory provisions on paper, the discrimination has been continuing.
While our report speaks about a lot of discrimination, we may not have managed to bring in every aspect. It acknowledges that discrimination can occur not only on the basis of caste and identity but also gender and disability, which was another aspect it spoke about. So, they have kept it open.
As a result, the court has expanded the scope of the existing petition. It has now converted it suo motu into an open petition, which gives us much leeway to keep working on this issue, finding new aspects of discrimination. They can always be brought before the court. So, that’s another thing.
Justice Chandrachud, while pronouncing part of the judgment in court, also mentioned setting up a committee. It also mentions about board of visitors visiting the prisons and assigns specific tasks to the state legal aids itself. Although I haven’t had the chance to thoroughly read the judgment yet, from what was discussed, it seems that a wide range of issues has been covered in this judgment.
Jahnavi: And I think, as you said, the fact that they’ve kept it open leaves a lot of room for more research and hopefully more positive change in various ways. What do you think? Do you think this offers a larger lesson on how journalism can be used?
Sukanya: So, in journalism school, we’re told that we are journalists, not activists, right? And that’s something we try to keep as it is. We don’t want to become one, but we do want our stories to have a certain kind of impact. Otherwise, how does it matter if somebody is reading and like forgetting about it, especially human rights? Prisons are not a space that get extensively covered. It’s difficult because we don’t have access to prisons, nor the wherewithal to do such stories.
In this case, after so many years as journalists, this was perhaps the first time we had the courage to say, ‘Okay, fine, let’s take this to court.’ And we got a very positive response from the court. So, maybe it’s time for us to explore ways of creating impact – judicial impact is also something that needs to be covered. Perhaps, there may be ways to seek judicial intervention. In my case, I became a petitioner simply because it was too difficult to find an incarcerated or formerly incarcerated person to be the petitioner, given that the threat perception is much higher. I had worked on finding a petitioner for a long time, and when I realised it wasn’t happening, the suggestion from the lawyers was that I could become the petitioner since I had worked on this issue.
Jahnavi: …something that was recognised by the court as well when they said that it was a really well-researched petition.
Sukanya: So, then in this case I had to become a petitioner because there was no other way of doing this, but one can actually look at that as a strategy to actually bring an impact in the case.
Jahnavi: Yeah, thank you so much for this.
Sukanya: Thank you, Janhvi.
Jahnavi: And thank you for watching. I’d encourage you to read this series and Sukanya’s work particularly on caste in prison. Thank you.
This interview was transcribed by Manya Singh.
