Law’s temporality and the construction of death-worlds: Custodial neglect of older prisoners in India

Abstract

The vexed relation between law and age/ageing is most apparent in the context of older prisoners. Late life may be accompanied by disabilities and dependencies. So, access to appropriate forms of care including medical care becomes even more crucial in custodial institutions like prisons where older prisoners live isolated from society. Since the spread of COVID-19, there have been attempts to decongest Indian prisons. However, older political prisoners charged (not convicted) for anti-state, terrorist activities continue to suffer in prison due to denial of bail. I argue that elderliness and the condition of health ought to be factors on which bail should be given irrespective of the nature of the charges. By using the framework of ‘law as temporality’, I elucidate how the politics around the denial of bail by courts in India and the treatment of older political prisoners by prison authorities lead to the production of a ‘carceral time’. This article discusses how carceral time structures the embodied experiences of ageing in ways that defy the human rights of prisoners. Time not only disciplines but also determines the expendability of ageing bodies, particularly when time is an insidious form of waiting, as in the case of older political prisoners in the Bhima Koregaon case in India. This article highlights the need for the criminal justice system in India to consider elderliness as a ground for compassionate treatment towards older prisoners, and to uphold their rights to healthcare and to live with dignity.

1 Introduction

Older prisoners are one of the most neglected categories of senior citizens.¹ The criminal justice system in the country does not consider elderliness as a standalone criterion for more just and humane treatment of older prisoners when in custody or at the time of formulating judgments. Due to age and associated health challenges, older incarcerated individuals might be in a vulnerable position in custodial institutions where they do not have access to basic amenities related to care. Custodial life in prisons complicates the experiences of ageing, and certain medical conditions are fully incompatible with custody unless appropriate care is ensured. Chronic physical ailments, Alzheimer’s disease, and all those ailments which necessitate constant care in late life are conditions which make life in prisons challenging.² There is a significant dearth of research on older prisoners in India, but those available demonstrate the heightened health risks and reduced life expectancy of the incarcerated.³ Thus, care, both social and medical care, becomes even more imperative for older prisoners whose suffering may be compounded owing to age, ailments, and incarceration.

The state cleverly thrusts responsibilities of care and maintenance of older people upon the family, especially on adult children. Even though laws such as the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (MW Act) make it obligatory for state governments to establish old age homes and provide affordable medical support, this is poorly implemented.⁴ Among senior citizens, the older prisoner is a particularly vulnerable category. The state cannot sideline its duty to care for older prisoners as the rights of prisoners are internationally recognised. Rules regarding the treatment of prisoners have been codified in the International Covenant on Economic, Social and Cultural Rights, the International Convention on Civil and Political Rights, and the Nelson Mandela Rules, which will be discussed later.⁵

However, the political arrests and treatment thereof of several human rights activists in the Bhima Koregaon–Elgaar Parishad case,⁶ many of whom are senior citizens, reveal the failure of the Indian legal system to safeguard the human rights of prisoners. Elgaar Parishad is an event held at Bhima Koregaon in Pune, Maharashtra, to commemorate the historic defeat in 1818 of an upper-caste Maratha ruler by the British forces. A significant proportion of the British contingent was made up of Dalits (oppressed, lower-caste groups). Every year, Dalit groups, activists, and organisations co-organise this event. In the convention held in 2017, violence broke out between Dalits and upper-caste Hindus, after which several human rights activists were arrested. Accusations against them ranged from having Maoist links to planning the assassination of the prime minister to mobilising for a war against India.

The alleged criminals (all of them human rights activists) were arrested from 2018 onwards and have struggled to get bail ever since. The political prisoners whose experiences I discuss in this article are also among the more renowned figures, thereby having the support of their networks as well as attracting more media attention. Yet, their experiences remain relevant for a critical analysis of the carceral and juridical treatment of older prisoners. In this article, I have examined the role of law in structuring experiences of ageing among older prisoners (a) who are not yet convicted (but are pre-trial or undertrial prisoners); (b) who have co-morbidities or multiple health complications; (c) against the backdrop of a raging COVID-19 pandemic. By law, I refer to the draconian legislations such as the Unlawful Activities (Prevention) Amendment Act 2019, as well as to those who apply the law, namely the executive (police and prison authorities) and the judiciary. They all are implicated in the infringement of human rights of older political prisoners and must be held accountable.

I have analysed secondary data such as newspaper reports, bail orders, international guidelines, government data like Prisons Statistics reports of the National Crime Records Bureau (NCRB), Supreme Court and High Court orders mainly during the pandemic, as well as interviews of older political prisoners and their well-wishers available on the internet. In the second section, I provide a sketch of the condition of Indian prisons during the pandemic and explain the reasons for compounded suffering of older political prisoners. In the third section, I discuss the way the law frames dissenters as ‘disposable’ bodies. Here, I argue that in the spectrum of disposability, older dissenters are the worst off. In the fourth section, I discuss how the law produces ‘carceral time’ by crafting an insidious form of waiting that adversely impacts older prisoners who are dependent on care. In the fifth section, I analyse the narratives of a few older political prisoners. It is not my argument that the law is discriminatory towards older prisoners because of their age, but by neglecting their unique needs, the law’s insensitivity becomes apparent. The last two sections discuss the adverse implications of deliberate non-care on the part of the state and the creation of death-worlds for older political prisoners. I conclude by arguing that in a democratic society, we ought to also question the role of courts, which repeatedly denied medical bail to older political prisoners in ways that excluded them from appropriate healthcare during the pandemic and beyond,⁷ jeopardising their lives.⁸ Such treatment by the law compounds the suffering of older political prisoners, as they are afflicted with multiple forms of crises including:

• 1. ailments related to late life;

• 2. health (physical and mental) risks arising out of a lack of timely and appropriate medical care in custody;

• 3. lack of social care from kin-group and friends as liberty is curbed;

• 4. the nature of allegation (which prolongs the trial due to the crime being designated as a non-bailable offence) and the dishonourable reputation associated with the allegation;

• 5. the threat of the spread of a contagion (like the COVID-19 pandemic) within prison premises.

2 The Indian state’s treatment of older political prisoners during the pandemic

Human rights activists in many parts of the world have rallied for decarceration during the pandemic. Some advocates of prison reform have stressed the need for releasing undertrial prisoners due to the increased chances of the virus spreading within institutional premises.⁹ Prisons in India are spaces in urgent need of reform due to the abysmal standard of life for the inmates.¹⁰ The high risks of contracting the virus in confined spaces are obvious, especially in light of poor medical care arrangements.¹¹ Several human rights activists and advocates had brought this to the notice of the higher judiciary and the state and had urged them to release prisoners, especially older prisoners and women.¹²

In this article, I analyse the experiences of older activists¹³ arrested in connection with the Bhima Koregaon case. In 2018 and 2019, human rights activists Sudha Bharadwaj, Anand Teltumbde, Stan Swamy, Varavara Rao, and Gautam Navlakha (among others) were arrested from across the country. All of them were denied bail several times. Most of them already suffered from health issues such as high blood pressure, diabetes, and other co-morbidities. At the start of the pandemic, the scientific evidence demonstrated that the COVID-19 virus had an affinity towards people with co-morbid health conditions. Under such circumstances, the refusal to grant bail to these pre-trial older prisoners is inhumane.

In March 2020, the Supreme Court of India issued directives to the state governments to decongest the prisons.¹⁴ It asked states to constitute high-powered committees to consider the release of prisoners who were subject to seven years or more of incarceration. A year later, the Supreme Court passed another order in which it instructed states to expedite the process of decongesting prisons. In this order, the Supreme Court reiterated its guideline formulated in 2020 whereby:

It was left open to the High Powered Committees to determine the category of prisoners who should be released depending upon the nature of offence, the number of years to which he/she has been sentenced, the severity of offences which he/she is charged with and the stage of trial or any other relevant factor which the Committee thinks appropriate.¹⁵

However, those charged under the UAPA or the Public Safety Act 1978 for plotting terrorist activities against the state were not to be granted bail despite their families pleading for their release owing to the spread of COVID-19 inside prisons.¹⁶ Recently, The Wire reported the death of older Kashmiri detainees due to COVID-19 in the jails and pointed to the lack of access to proper medical care in jails.¹⁷ The Kashmir High Court Bar Association also pleaded with the Government of India and the state to release prisoners. However, that has not happened. Until May 2021, the Bihar prison department was the only one to amend the conditions for the premature release of older prisoners.¹⁸ Thus, convicts who were above 65 years of age, and had completed seven years of incarceration that included release on parole, were deemed eligible for premature release.¹⁹ Further, those convicts who had been given life imprisonment and were suffering from incurable critical or transmissible diseases and who had completed at least five continuous years of imprisonment could be released prematurely. However, such a provision remains inadequate as there is no consideration for pre-trial or undertrial prisoners in police or judicial custody. Barring Sudha Bharadwaj, who has been granted default bail,²⁰ and Varavara Rao, who has been given a three-month extension upon six months of initial medical bail, the rest continue to suffer in the prisons.

3 The spectre of disposability

All waste is potentially poisonous –– or at least, being defined as waste, it is deemed to be contaminating and disturbing to the proper order of things. If recycling is no longer profitable and its chances (at any rate in the present-day setting) are no longer realistic, the right way to deal with waste is to speed up its ‘biodegradation’ and decomposition while isolating it as securely as possible from ordinary human habitat.²¹

The politico-juridical apparatus often segregates some humans as ‘disposable’ through its policies and legal actions, either actively or inadvertently and unpremeditatedly. To be rendered disposable by the state implies that a particular individual or community is deemed useless to the state and therefore can be legitimately discarded. Throughout history, certain social groups have been classified as expendable, systematically excommunicated (foreigners and those from another ethnonationality considered as ‘suitable enemies’²²) and even disposed of through the most inhumane techniques. The people thrown into labour camps in Nazi Germany and, among them, the human guinea pigs (Versuchspersonen) chosen for scientific experimentations,²³ international refugees from war-torn zones, ‘victims of torture’, the dispossessed, and political prisoners are some examples.²⁴ Ethnicity, race, religion, caste, and class have been grounds on which specific communities continue to face harassment, torture, expulsion, and even genocidal attacks under legal regimes. Many of these communities are often targets of heightened state surveillance. In India, Muslim detainees in Assam who were denationalised under the exercises of the National Register of Citizens, followed by the Citizenship Amendment Act 2019, could be viewed as disposable.²⁵ The move to denationalise was made with a view to consolidating a Hindu nation by excluding more Muslims. Migrant labourers (mostly the non-contractual labourers in the informal economy), whose lives were wrecked by the sudden declaration of a nation-wide lockdown by the Indian state during the first wave of the pandemic, are another example of lives rendered disposable. Their harrowing experiences of loss of jobs and shelter and acute starvation beg the question, ‘When means are strained, who becomes dispensable?’²⁶ Further, the urban poor have often been subject to a spectrum of violence by the state. ‘Modalities of uncaring’ such as indifference to and normalisation of poverty as well as arbitrary implementation of welfare schemes produce structural violence at the very scene of care.²⁷ They are subjected to not only subtle, unintended forms of violence but even outright illegalisation of their existence and livelihoods.²⁸ Farmers, tribals, and villagers too from time to time have been treated by the state as though they were dispensable. Forceful displacements due to industrial, developmental projects, overlooking the health hazards caused due to the establishment of nuclear power plants and unleashing physical brutalities upon protestors, are not unheard of.²⁹

The older political prisoners whose experiences within the legal system I have analysed in this article, are/were advocates of human rights, particularly of the marginalised communities in India. They were arrested for opposing the state’s neoliberal agendas. This antipathy towards ‘dissenters’, however, is not a new phenomenon. Jawaharlal Nehru in post-colonial India also identified the Communist Party of India and labour organisations as ‘enemies’ of the nation.³⁰ Once there is an enemy, a hegemonic discourse (or a ‘homogenous script’³¹) emerges in the name of security that claims to ‘save the nation’ from terror and threat to social order by ‘anti-national’ elements. Regrettably, ‘the first casualty of terror is human rights and diversity of opinion.’³² The older political prisoners, whose experiences I recount later, were arrested under the stringent anti-terror law, viz., the Unlawful Activities (Prevention) Amendment Act 2019 (UAPA) (the original act was enacted in 1967). Serious allegations were made against them that disqualified them from getting medical bail even during the pandemic when other prisoners were being (conditionally) released. The disposability in the context of older prisoners can be plotted in the bail denials and the subsequent sidelining of needs of care especially during the public health crisis of the COVID-19 pandemic. Such acts of non-care reveal the oppressive side of the legal system that jeopardises the safety and dignity of older prisoners and exacerbates their disposability. It is inhumane to keep prisoners incarcerated despite deteriorating health conditions, notwithstanding the Supreme Court’s order in 2020 to release prisoners during the pandemic.³³ Even as judicial orders are being called out by several scholars and activists for endorsing or aligning with state policies,³⁴ the consistent denial of bail highlights the perverseness of the legal system towards older people charged with crimes against the state.

4 Law, temporality, and resistance

Time is a crucial reference point for older people as well as those under trial in India. Ageing brings with it worries associated with ill-health and mortality. Trials in India are a time-consuming process, more so in the case of those convicted of serious crimes such as anti-state activities, terrorism, and murder. Thus, time is a significant aspect of the lives of older prisoners who have been charged with ‘serious offences’. In this section, I illustrate how law produces time and the implications of the same for prisoners and their loved ones. Renissa Mawani argues that time as a conceptual category has been mostly peripheral to law’s imagination. It is viewed as ‘external’ and ‘insignificant’ to the law.³⁵ In this article, I assert the centrality of time to the debate on the rights of older prisoners and argue that ‘law is fundamentally about time.’³⁶

Law crafts temporalities, as is seen, for example, in the case of Kashmiri Muslim older women,³⁷ mostly mothers whose sons have been subjected to ‘enforced disappearances’ under laws like the Armed Forces (Special Powers) Act 1958. Ather Zia elucidates how the legal regime perpetuates a ‘state of waiting’ and a period of mourning for the disappeared among their families.³⁸ The state produces and determines time by performing the law in the form of legal excesses. However, the womenfolk have used (continue to use) strategic ways of resisting the law’s temporalising forces that subject them to an endless wait for their beloved kin. An affective politics is at play wherein the women resist the forced invisibilisation of Muslim men from Kashmir (and the state’s denial of any role in it) by their hypervisible activist presence. Thus, the question ‘How does lived and experiential time escape, exceed, and reconfigure law’s temporalising force?’ becomes important in this context.³⁹

Zia poignantly explains the significance of leaving the door of their house ajar for the older women from families with disappeared men. The door becomes a symbol of creating a counter-memory, a struggle for visibility and a vehement articulation of continual mourning of the loss; thereby also a site of resistance and hope (for the return). Simultaneously it becomes a way to seek what Zia calls a ‘private mode of justice’ when formal institutions of justice remain far-fetched.⁴⁰ The open door is a manifestation of an affective law (‘subaltern power’) that these women have created to combat the sovereign law, which aims at the annihilation of Muslim Kashmiri men.⁴¹ In the context of incarceration, however, such strategic resistances are more subtle if not impossible. For example, one of the detainees in the Bhima Koregaon case, Sudha Bharadwaj, in a recent interview, spoke about how she attempted to help other prisoners with legal advice. She remarked that upon being rebuked for doing so she managed to ‘get her way around’ and got help from her lawyer for the fellow prisoners.⁴² This is how she subverted the prison gaze.⁴³ Those she helped remarked, ‘Aunty, aap toh humaare ghar ke lawyer ho’ (Aunty, you are our in-house lawyer).⁴⁴ The community feeling, the camaraderie and solidarity, that gets established is a source of strength for the incarcerated and becomes a shield against the prison’s unfair, arbitrary rules and especially recrafts time to make it more (socially) useful.

Resistance against law’s temporalities cannot, however, trivialise the pain and suffering of older prisoners.⁴⁵ Laws like the UAPA produce carceral time that has unique consequences for an older prisoner. The carceral time crystallises into an insidious form of waiting that could create ‘death-worlds’ and finally dispose of life (as was seen in the case of one of the activists, Stan Swamy). The law’s necropolitics is thus exposed. Necropolitics, a term that I borrow from Mbembe, refers to the ways of ‘subjugating life to the power of death’ that produce ‘death-worlds’ or ‘forms of social existence’ in which people are ‘subjected to living conditions that confer upon them the status of the living dead’.⁴⁶ In the next sections, I discuss the techniques by which carceral time is produced and which also reveal the necropolitical face of law.

5 Custodial neglect and illness narratives from prisons

‘Law traffics in violence every day’⁴⁷ through the denial of basic rights, which directly affects the health of the older prisoners. The legal machinery is violent towards these prisoners as it has continually failed to reckon with the impact of the pandemic in prisons. The violence towards older prisoners pulsates through the law’s disregard for the needs of care and in its silence ‘that lies at the limits of legal texts and language’.⁴⁸

5.1 Experiences of disability and negligence in prisons

Father Stan Swamy vociferously opposed the exploitation of marginalised communities in India, particularly the tribal population in Jharkhand, by political and corporate elites and was viewed suspiciously by the state. He was accused of terrorist activities against the state. In October 2020, he was arrested from Ranchi, Jharkhand, where he lived and worked. Initially, Swamy had refused to be taken away to a Mumbai prison from Ranchi on account of his age, health, and the pandemic, and agreed to attend court proceedings via videoconferencing. He was aware that his ordeal was not unique and that he was one among many to be implicated for challenging state policies and was also ‘ready to pay the price’.⁴⁹ However, the prison conditions and the lack of appropriate and timely care cost him his life.

Eighty-four years old, Swamy suffered from Parkinson’s disease, most common among older people. Due to muscular tremors, he was dependent on a straw and sipper. He had urged the court to give him the straw and sipper from his bag, which he claimed had been seized by the National Investigation Agency (NIA) during the raid in his house. The court asked the NIA, the ‘chosen agent of the state’,⁵⁰ for a response. The agency took 20 days to respond and clarified that it had never seized Swamy’s bag. The unnecessary delay in providing Swamy with a straw and a sipper marks the most poignant scene of non-care and neglect of an older individual in prison. The lack of promptness in addressing his need prolonged his suffering. Such forms of custodial neglect of the needs of an older, ailing prisoner can be interpreted as violent, especially because the object in question (a sipper) is a basic amenity that could have been immediately provided. As rightly pointed out by political analyst Akash Banerjee, providing a sipper ‘is not a question about jurisprudence’.⁵¹

While he was in judicial custody, Swamy’s health deteriorated significantly. A few months before his death in July 2021, Swamy told the Bombay High Court judge during video conferencing that at the time he was arrested,

I would eat by myself, do some writing, walk, I could take bath by myself, but all these are disappearing one after another. So Taloja Jail has brought me to a situation where I can neither write nor go for a walk by myself. Someone has to feed me. In other words, I am requesting you to consider why and how this deterioration of myself happened.… My deterioration is more powerful than the small tablets that they give.⁵²

However, bail was not granted to him on medical grounds. The court had ‘asked’ Swamy if he would like to be admitted to a certain government hospital in Mumbai on account of his ill-health, but he had refused. He was sceptical that admission to the government hospital would improve his condition and believed that staying in prison was better than being admitted to that hospital, where he had already stayed briefly earlier. This is also telling of the abysmal healthcare facilities for prisoners in India.

Swamy’s pleas highlighted his decreasing capacity to undertake what gerontologists call the Basic Activities of Daily Living (BADL), which include activities of self-care such as bathing, eating, and toileting, which in his case had become difficult. Under such health conditions, Swamy was entitled to individualised healthcare in a conducive environment. During a court hearing in May 2021, he expressed his desire to be amidst his people, and this could be read as his dying wish since soon afterwards he passed away.⁵³ In his case, age and disability produced difficult experiences of neglect and isolation from his community when he was dying. The court, the prosecution, and the police were mute spectators to the violation of rights. This situation could have been prevented if his needs for health and social care had been addressed promptly. The law colonised his (ageing) body and denied him his bodily autonomy. Swamy passed away in a private hospital battling for life on a ventilator. The immediate cause of his death may have been the COVID-19 virus;⁵⁴ however, the lack of care in the prison was responsible for the deterioration of his health even before he contracted COVID-19.

There ought to have been an acknowledgement of his complex medical needs, and accordingly a ‘multimorbidity model of care’ should have been adopted upon his admission into judicial custody.⁵⁵ This model, used by geriatric medicine, has been recommended by the World Health Organization for prisoners in European countries.⁵⁶ This model acknowledges the co-existence of multiple ailments among older persons and aims to provide patient-centred care wherein decisions about healthcare arrangements are based on a consultative process. However, the condition of healthcare facilities, and particularly geriatric medical care in India’s overcrowded prisons, is despairing. On the contrary, in India, the course of medical treatment for older prisoners like Swamy remains a matter of determination by the court and not an entitlement as it should be irrespective of his legal status. The UN General Assembly (of which India has been a member since 1945) in 1990–1991 added a resolution entitled ‘Basic Principles for the Treatment of Prisoners’, which states, ‘Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.’⁵⁷ In respect of this international standard, our legal system failed Swamy who had even declared to the court that he anticipated his death if the request for bail was not granted. Thus, the law had already produced a ‘future carceral time’ in the present in which the body was in the state of becoming disposable. The corporeality of the body is thus predicated upon law’s temporality. Swamy’s pleas were disregarded due to strict adherence to the law, sidelining other constitutional principles that exist to safeguard the human life of prisoners. The tardiness with which Swamy’s bail pleas were responded to signals a deep institutional crisis and unmasks the necropolitical face of the law.

5.2 Of dementia and (loss of) dignity

In what discourse

Can we converse

With the heartless? ⁵⁸

These words of Varavara Rao, an 82-year-old Telegu poet and activist, ring true in his own case. He was also arrested in 2018 in the Bhima Koregaon case. While in prison, his health condition deteriorated substantially. In May 2020, he was admitted to the hospital and discharged without proper communication with his family members, including his wife, P Hemlatha. In July 2020, he contracted COVID-19 and was sent to another hospital. The Nanavati Hospital authorities in Mumbai, where he was receiving his treatment, handed over their report in a sealed envelope, usually a practice followed in matters of grave security threats to the nation. The report was also incomplete as it did not contain medical test results and other details. Soon after, he was sent back to prison.⁵⁹ The alarming conditions in which he continued to live and his deteriorating health were sufficient for granting him medical bail. Senior Advocate Indira Jaising, Rao’s counsel, argued, ‘His soul is not being kept intact with his body,’ and ‘Death is inevitable but everyone looks for a dignified exit from this world.’⁶⁰ These statements highlighted the vulnerability that Rao continued to face in prison amidst the pandemic.

In November 2020, petitions were heard virtually by the Bombay HC to release Rao. In the virtual hearing, Jaising highlighted the lack of specialised medical attention for him, especially the need for a neurologist and a urologist that had been disregarded by the state prison authorities. Based on this, the court ordered a video examination by doctors.⁶¹ Pointing out the ridiculousness of the situation, Jaising remarked, ‘He is bed-ridden. He is in diapers. He can’t control urination. He is with a urine bag. His catheter has not been removed. Is this man going to flee away from justice?’⁶² At one point during the proceeding, the discussion revolved around whether Rao had dementia or not, as had been documented in a previous governmental hospital report. As an advocate of the rights of senior citizens, one can ask if dementia is a relevant ground to grant medical bail to an older prisoner.⁶³ A later report by a different hospital provided inconclusive evidence about Rao’s dementia and suggested further tests for him. Providing proof that Rao’s neurological state of mind was in a critical condition after his arrest, Jaising informed the court: ‘He once wrote a letter to his wife, saying his wife passed away 15 years ago. Now he is interacting with her. This is the condition of people with dementia…. What is dementia? It’s not having awareness of time-space and people.’⁶⁴ How frail should the prisoner be to be provided with a medically safe environment and care? As per the judgment, the respondents (NIA and the State of Maharashtra) believed that Rao should be sent back to the prison since his medical reports did not mention dementia (though it had not been ruled out either), and also that he was being provided with the treatment required (which was a half-baked truth).

Jaising made an age-sensitive observation. She argued, ‘No person above the age of 80 should ever be kept in prison. What life imprisonment means for a person at 80 is vastly different from what it means for a 25-year-old.’⁶⁵ But the judge argued, ‘We don’t know if what you are arguing has ever been argued in any country before.’⁶⁶ This legal uncertainty about the way to treat alleged older criminals must not persist at the cost of the fundamental rights of prisoners such as the right to life and healthcare. In late life, especially when health fails, it is a right to be looked after and cared for and be amidst loved ones. To disallow the company of loved ones/kin during illness is dehumanising as it tears apart the ‘social’ from human lives, as will be elaborated later.

After a prolonged process of adjudication, finally, the Bombay High Court in February 2021 granted Rao medical bail for six months. Keeping in mind the history of his health condition, including his contraction of COVID-19 while in prison, the bench argued that sending him back to prison would mean ‘endangering his life’.⁶⁷ His medical bail was extended till 20 December 2021, and he was advised to stay in Mumbai and prohibited from travelling to his hometown, Hyderabad.

Once booked under UAPA and sedition laws in India, the state’s suspicion and surveillance over the accused is extreme. Getting medical bail is close to impossible; however, it is important to acknowledge the crucial role that courts can play in granting bail.⁶⁸ Section 437 of the Code of Criminal Procedure 1973 (CrPC) mentions that ordinarily, an accused cannot be given bail if prima facie the allegation is true and if the person has been given life imprisonment or the death penalty. However, the court can, under specific circumstances, like for medical reasons, grant medical bail.⁶⁹ It is here that the right to life under Article 21 may become the overriding principle. Rao has not been convicted yet, and this should have made it easier for courts to grant him bail. Rao’s ordeal highlights the need to reimagine the criminal justice system based on gerontological knowledge about care needs in late life.

6 Prison roles, social roles, and the time lag between

The violence of law threatens to expose the façade of law’s dispassionate reason, of its necessity and restraint, as just that –– a façade –– and to destabilise law by forcing choices between the normative aspirations of law and the need to maintain social order through force. Violence threatens to swallow up law and leave nothing but a social world of forces arrayed in aggressive opposition. Where violence is present, can there be anything other than violence?⁷⁰

Austin Sarat makes this pertinent observation about capital punishment (as a form of law’s violence). In the case of dissenting citizens such as Swamy and Rao, national security was given a higher value at the cost of their rights as prisoners notwithstanding that the trial had not even begun. The custodial neglect they experienced is violent when age-based needs are disregarded. This, despite the trial not even having begun. The law is also violent in a different way. It severs the social from an individual’s life, and while modern prisons have always functioned on the principle of denial of liberty and isolation from family, during the pandemic, this severance of the social assumed a critical form.

Sudha Bharadwaj, a sexagenarian lawyer and an activist, was also arrested in 2018 by Pune police over the Bhima Koregaon issue. The courts refused to grant her bail four times.⁷¹ She has diabetes, hypertension, and suffers from pulmonary tuberculosis, and while residing in jail, she also developed a heart disease. She had also developed symptoms of COVID-19, such as loss of taste. At one point, she was living with a COVID-positive prisoner. Her daughter had pleaded with the high court to grant her interim bail on medical grounds.⁷² In an interview, her daughter (in her mid-20s) recounted the horror and trauma of having to deal with her mother’s incarceration amidst a pandemic on her own.

The day I got to know about Father Stan’s death, I cried my heart out. I am very scared for my mother. When our lawyers tell us about how her health is deteriorating, it kills me on the inside. Father Stan could have been saved. But the state left him to die. I am scared they might do the same to my mother, she says.⁷³

For a girl in her mid-20s, having to deal with this situation during the pandemic was horrifying. Such circumstances can significantly impact the mental health of both the prisoner and their dependents and/or significant others.

Gautam Navlakha, another accused in the same case, was shifted to the anda cell in October 2021. This move was perhaps, as Jinee Lokaneeta reminds us, ‘just another reminder that imprisonment itself appears inadequate for the state. Instead, there is a constant need to continually break the body and soul of a person by making the conditions more challenging.’⁷⁴ Lokaneeta alerts us to the rampant and discretionary use of anda cells by prison authorities and highlights the ambiguity of its functioning as per state law. Navlakha’s partner Sahba Husain, herself an activist, in an interview revealed that the raid by the police was the most dreadful for her and that she was ‘shaken’ when he was taken away to Mumbai.⁷⁵ ‘How do you deal with lockdown and his arrest at the same time?’ she pondered. It left her with ‘deep sorrow’ and affected her profoundly. Subsequently, the inability to get information about his health from time to time worried her. Meanwhile, he had also become a grandfather but could not visit his daughter abroad as he had had to surrender his passport.

The life course perspective in gerontology highlights the importance of historical, structural forces and social conditions that impact an individual’s role changes and role enactment, which has significant consequences for ageing in late life.⁷⁶ According to the life course perspective, time and temporality are crucial determining factors to understand individual experiences of ageing and care related needs.⁷⁷ In the context of Navlakha, his incarceration and the juridical gaze crafted his ageing experiences by excluding him from the familial role that he was expected to take on by thrusting him into a ‘new regime of prison roles’.⁷⁸ Such an exclusion produces a time lag between his prison role and expected social role by stretching time of trial to an uncertain period.

In prison, Navlakha’s spectacles were stolen, and he was not allowed to contact his family members for a few days. Husain remarked that it was an ‘unbelievable’ and ‘inhuman’ act, especially because Navlakha was heavily dependent on his glasses. Husain had couriered another pair of glasses to him, but she said they were ‘received, refused and returned’ by the prison officials, suggesting a deliberate act of denial of a basic right by prison authorities. Thus, ‘The symbolic function of the prison reaffirms the lack of autonomy and choice of how the disciplinary and medical gaze constructs the aging body transforming the older inmate (the subject) into an object/commodity of need which others deal with.’⁷⁹ The prison authorities, however, mentioned that the courier was not accepted due to security concerns.⁸⁰ This argument appears rather insubstantial.

The state, in collusion with ‘petty sovereigns’ within state institutions like the prison administration, carries on its discretionary acts to suppress the basic rights of prisoners. Judith Butler defines the role of ‘petty sovereigns’ in the following manner:

Petty sovereigns abound, reigning in the midst of bureaucratic army institutions mobilized by aims and tactics of power they do not inaugurate or fully control. And yet such figures are delegated with the power to render unilateral decisions, accountable to no law and without any legitimate authority. The resurrected sovereignty is thus not the sovereignty of unified power under the conditions of legitimacy, the form of power that guarantees the representative status of political institutions. It is, rather, a lawless and prerogatory power, a ‘rogue’ power par excellence.⁸¹

The overuse of power by the prison authorities goes against the rights of these prisoners and survival is contingent upon negotiating skills within prisons.⁸² Ethnographic studies have also highlighted that prisons continue to be spaces of negotiations between prisoners and the authorities.⁸³ The type of life inside, specifically the ‘privileges’ prisoners can enjoy, albeit temporarily, depends on negotiations the prisoners can make with the wardens such as obtaining material goods or favours by bribing and then returning the favours.

7 Care crisis in the prisons and implications

The prison is a kind of a ‘quarantine zone’ where allegedly dangerous individuals are segregated in the name of public safety.⁸⁴ There have been attempts to ensure that ‘[i]nstitutional power reaches into the very grain of older individuals, touches their bodies and inserts itself into their actions and attitudes, their discourses, learning processes and everyday lives.’⁸⁵ The above cases of activists being booked for anti-state stances and the treatment being meted out to them are a ‘spectacular form of cruelty’.⁸⁶ The pathetic living conditions, especially healthcare provisions for prisoners, have been exposed yet again during the pandemic. Also, when we speak of the rights of older persons, why must they be limited only to the discourse around the right to be cared for properly by one’s children? Denial of bail during the pandemic and under conditions of failing health prevented these older prisoners from meeting their loved ones, and is therefore dehumanising and cruel.⁸⁷

The courts could have played a more proactive role in reinterpreting the constitutional rights granted to a prisoner. By not doing so, the Indian legal establishment is guilty of abandoning the rights guaranteed under the International Covenant on Civil and Political Rights 1976 which India ratified in 1979. The treatment meted out by courts and prisons flouted the following principles: Article 7 of the Covenant states, ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Article 9(3) highlights the need for speedy trials by declaring, ‘Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.’ As specified by Article 10(1), ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’ According to Article 10(3), ‘The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.’ Article 14(2) stipulates, ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law,’ and according to Article 14(3)(c), anyone charged of a criminal offence has the right ‘to be tried without undue delay’. The trial in the case of these older prisoners is yet to start. It is worth examining how the disregard towards the above principles affects the survival of older prisoners.

Robert Cover once argued that ‘Legal interpretation takes place in the field of pain and death.… Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur.’⁸⁸ According to Cover, violence that is unleashed by the legal machinery, the judges being at its helm, is legitimised in modern states. Sarat and Kearns further argue that ‘constitutional violence … crushes and kills with a steadfastness equal to a violence undisciplined by legitimacy.’⁸⁹ Though this is particularly argued in the case of capital sentences,⁹⁰ I argue that this is true in the case of bail denial to older prisoners and their treatment in prisons during the pandemic. Judge Patricia Wald makes a very pertinent observation, that judges should take personal responsibility for their judgments, and that ‘[j]udges and others should be held accountable for the painful impositions they authorise or condone, and that such personal accountability would ensure that law’s violence would be dealt with more reasonably and responsibly.’⁹¹

The way the courts, both the appellate courts and NIA courts, the police, and prison authorities have responded to the persons named above generates a spectre of disposability of older alleged criminals. This violence of the law is both temporal and performative. It is not just the extraordinary delay in starting the trial⁹² that is violent, but law’s violence is performed on the bodies and minds of these incarcerated individuals in the way they are denied access to basic amenities, including medical facilities. The experience of violence, I argue, is magnified due to age and the pandemic. With the passing away of Stan Swamy in judicial custody, lessons need to be learnt, because  such a ‘violence of indignity in death’ reinforces a culture of impunity and legitimises the violence against individuals.⁹³

8 Conclusion

The carceral time produced by the legal apparatus jeopardises the lives of older prisoners. This has been demonstrated through the experiences of the accused in the Bhima Koregaon case. In the case of political prisoners, there is a different dynamic at work compared to other criminal offenders. The law and the accusations against political prisoners are generally aimed at prolonging the period of imprisonment.⁹⁴ The nature of the UAPA law is such that the allegation (of anti-state activities) itself sets the pitch of the trial. The First Information Report (FIR) against the accused persons is like an ‘omnibus FIR’ which contains only general allegations without any specific details of the act of crime committed, those who are involved, and in what ways. The omnibus FIR is a legal tool through which the sovereign state produces time in a certain way. It arrests, manoeuvres, and prolongs time, and produces an insidious waiting for trial and justice. The wait is a way of silencing and exacerbates the disposability of older prisoners. The wait in prison, however, has a different meaning for an older prisoner who may have different care needs, as compared to a younger prisoner.

Even though the law may not be particularly harsh on older political prisoners because of their age, the ‘neglect and indifference are active modes of “letting die” some populations to “make live” others.’⁹⁵ Older activists are perceived as a threat by the state and the legal apparatus is mobilised to repress them in total disregard of their human rights. The age of an older prisoner must be considered as a ground for bail even when the charges are grave. Prisoners with health conditions such as dementia and other disabilities in late life must be treated with more compassion and provided appropriate care. While the CrPC takes into cognisance sickness or infirmity as possible conditions for allowing bail, it does not regard age as a ground on which compassionate release can be made. A right to die at home, house arrest, assisted living facilities, and access to palliative and geriatric medical care are some of the provisions that must be available to older prisoners. These are concomitant with the fundamental right to life and death in dignity as enshrined in the Indian Constitution.