Mumbai: In a significant development, a division bench of the Supreme Court headed by Chief Justice D.Y. Chandrachud indicated it would direct the Ministry of Home Affairs (MHA) to appoint a nodal officer to do away with caste-based discriminatory practices in India’s prisons.
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.
The petition also focusses on the discriminatory provisions specifically targeting the most marginalised Denotified Tribes.
This petition is based on one of the articles from a five-part prison series ‘Barred – The Prisons Project’ produced in partnership with the Pulitzer Center for Crisis Reporting.
The apex court, reading out a few provisions from state prison manuals, called the practices “most disturbing”. The court has reserved the petition for final judgement.
The division bench comprising the CJI as well as Justices J.B. Pardiwala and Manoj Misra had issued notices to over 15 states in January this year, directing them to file their response to the unconstitutional provisions that still exist in the prison manuals of most states.
Among them, only the Union government and four other states – Jharkhand, Odisha, Tamil Nadu and Uttar Pradesh – have filed their responses so far.
Most responses, however, have either denied the prevalence of caste-based discrimination or have justified their discriminatory practices.
‘Model’ manual
On February 26, the MHA issued an advisory to the states and directed them to do away with the practices. In its advisory, the MHA also directed all states to comply with the Model Prison Manual, 2016.
The Union government, however, has overlooked the issues and inadequacies in the Model Prison Manual, something that has been pointed out in great detail in the petition. The court today also took note of the shortcomings in the manual.
Although the Model Prison Manual explicitly prohibits the assignment of labour on the basis of caste, it is silent on other discriminative classifications of members of the Denotified Tribes and wandering communities that are prevalent in most states.
Similarly, the Model Prison Manual has nothing to say about the use of dry or insanitary latrines and the employment or engagement of persons as manual scavengers, which is prohibited under the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.
This silence, the petition says, leaves room for misuse by prison administrations.
When the matter came up for hearing today, senior advocate S. Muralidhar and advocate Disha Wadekar appeared for Sukanya. In the opening argument, Wadekar pointed to three important aspects of the petition.
“Most states still continue to segregate prisoners physically and assign caste- based labour,” she said. She also pointed to the violative practices sanctioned against the Denotified Tribes in many states.
Along with the discriminatory practices, the petition also provides a compilation of several testimonies of former and presently incarcerated persons. Wadekar pointed out that regardless of what practices are mentioned in many states, the testimonies give a clearer idea of the practices on the ground.
‘Scavenger class’
Muralidhar argued that since most states have not responded to the petition, the court should issue an order asking them to comply with the MHA’s advisory and state that what is beyond the advisory can be dealt with later.
When the CJI indicated that he will pass an order in the case, Muralidhar requested that the court wait until the states respond. “In order to mount some pressure on the states, I request that the court leaves the matter pending for at least a month,” Muralidhar argued.
Muralidhar also read out problematic provisions from the state manual. Pradeep Misra, the counsel for Uttar Pradesh, was present in the court. He tried to justify the state’s stance and claimed that there is no caste-based discriminatory practice in his state’s prisons. Muralidhar pointed to the problematic provisions from the state manual. Justice Chandrachud too read out rules from the manual.
“Rule 158 states remission of convicts on scavenging duty. What is this scavenging duty?” he asked the counsel. “The provision mentions scavenger class … what does that mean?”
The detailed tabulation in the petition caught Justice Pardiwala’s attention, who pointed to the violative practices prevalent in the prisons of West Bengal. Pardiwala made the state counsel, Himanshu Chakravarty, read out provisions from the prison manual and asked if he too “found them disturbing”.
One of the provisions that the judge asked Chakravarty to read was rule Rule 793 which states: “The barber should belong to the A class. Sweepers should be chosen from the Mether or Hari caste, also from the Chandal or other castes, if by the custom of the district they perform similar work when free, or from any caste if the prisoner volunteers to do the work.”
There are several such problematic provisions in the West Bengal prison manual. Muralidhar stressed that West Bengal is among the states that has not responded to the petition yet.
Similarly, CJI Chandrachud read out provisions from the Madhya Pradesh Prison Manual, which makes a blatant distinction between “habitual and non-habitual offenders” and terms members of the Denotified Tribes as habitual offenders. Madhya Pradesh too has not filed its reply in the case.
The court today granted time for states to respond by Saturday (July 13).
‘In order to avoid clashes…’
The states that have filed responses have either denied the prevalence of caste-based discrimination or have justified their discriminatory practices.
For instance, the petition points to the caste-based segregation that is practised in the prisons of Tamil Nadu. In the counter-affidavit filed by the state in January, the state’s home department has claimed that prisoners are not segregated as per their castes but as per their “communities”. Although this makes a distinction between the two terms, they mean the same thing in this particular instance.
The affidavit claims:
“The prisoners belonging to Tirunelveli, Thoothukudi, Tenkasi and Kanyakumari districts are lodged in Central Prison, Palayamkottai. In these districts, there exists community-based groups and they indulge in murder/attack of the opposite community-based groups …
It is most respectfully submitted that in order to avoid group clashes/untoward incidents inside prisons, there groups are segregated and lodged in separate blocks in order to avoid community clash, which is prevalent in these districts.
It is most respectfully submitted that there is rivalry between different groups on account of caste feeling, which is regular in the district. [sic]”
The Wire’s story had looked at the physical segregation of prisoners on the basis of caste in the Palayamkottai central prison in Tirunelveli. Here, prisoners are assigned barracks as per their caste. For instance, a prisoner belonging to the dominant Thevar caste would be sent to the “Thevar barrack” and one from the Pallar caste (a Scheduled Caste) will be assigned a different barrack meant for that specific caste.
In 2011, when petitioner C. Arul moved the Madras high court, the state’s home department justified the segregation, saying it was essential to “prevent caste rivalries”. In the counter-affidavit filed by the Tamil Nadu government, they have tried to justify the practice and have repeated the argument they made before the high court in 2011.
Jharkhand has since its formation in 2000 used the Bihar state prisons manual. An affidavit filed by the state says it is in the process of drafting its own manual and that at the moment, it is referring to the Bihar prison manual.
Bihar’s manual has several problematic clauses. While making a list of all those provisions, Jharkhand’s government has claimed that while they still exist in the prison rules, they are “not in practice”.
In its response, the Jharkhand government also points to the order issued by the state’s inspector general of prisons in August 2021, prohibiting the caste-based allotment of work in the state’s prisons. This order was issued following the publication of The Wire’s story.
The story had also prompted the Jodhpur bench of the Rajasthan high court to suo motu pass an order and have the state’s prison manual amended. For the first time in 70 years, the rulebook was finally changed and all mentions of caste-based practices were finally dropped.
