The policy discourse on prisons in India has always, at least on paper, centred reformation and rehabilitation of prisoners as its core values. The Supreme Court of India as well as the various committees on prison reforms have echoed this commitment. Community participation, involvement of NGOs, qualitative prison research, social workers, and socio-legal volunteers have been routinely cited as key elements of rights-oriented prison reforms. Nonetheless, this normative commitment was unilaterally and arbitrarily overturned by the Ministry of Home Affairs in 2015 under the new guidelines on ‘visits inside jails.’ In this article, I argue that the new guidelines, released just 5 months after banning the BBC documentary ‘India’s Daughter’ that  reconstructed the Nirbhaya gang rape case using prison interviews, are aimed at creating a ‘chilling effect’ among prison researchers. Highlighting the experiences of prison researchers, legal aid lawyers, and my own observations and petition before the Delhi High Court, I contend that the new guidelines have had an overall detrimental effect on prison research aimed at highlighting the carceral narratives to seek state accountability.

 

Indirect Incapacitation: The New Guidelines

On July 2015, the Union Ministry of Home Affairs released ‘Guidelines on allowing visit inside jails by Individuals / NGOs / Company / Press for the purposes of undertaking research, making documentary or interviewing inmates, etc.’ The government did not provide any reasoning for pooling together a diverse set of groups who visit prisons or conduct interviews/research for different purposes. The document also lacks cogent reasons for such a sudden shift in policy, citing unnamed instances of ‘misuse of permission for personal benefits’ as the factor driving the decision.

This Advisory begins with a statement that “no private individual/ Press/ NGO/ Company should ordinarily be allowed entry into the prison for the purpose of doing research, making documentaries, writing articles, interviewing inmates, or any other similar research activity.” It, however, goes on to clarify that such permission may be granted if it is “...for the purpose of creating positive social impact”, “...relating to prison reforms”, or the government “itself decides to invite”.

Those who eventually get permission to visit jails, must submit a security deposit of Rs 1 lakh (1000 pounds), which is an extremely onerous amount that many researchers are unable to afford without external financial aid. Mobile phones, papers, books, and pens, are also prohibited. The visitor shall be always accompanied by the jail Superintendent who has the power to ‘intervene on the spot’ if ‘he feels that the interview conducted is not desirable.’

Most problematically, the researcher must submit all their recordings to the Superintendent for 3 days and the latter is duty-bound to ensure that the former does not leave the jail premises with the recordings. Further, the Superintendent is empowered to ‘carefully hear the recordings’ and ‘delete any portion he deems objectionable.’ The Superintendent is not required to give any reasons, either oral or in writing, to justify his decision.

Additionally, the final version of the research paper/book shall also be submitted before the Prison Department for the ‘No Objection Certificate (NOC).’ Any violation of these rules, intentional or not, would lead to forfeiture of the security deposit and initiation of legal action against the researcher.

Unjust Justice

Emiliano Ponzi  on Pinterest

Arbitrary Gatekeeping

Elaborating upon her experience of conducting prison research in India under the new guidelines, sociologist Reena Mary George compared the prison officers with the character of ‘Fluffy’ in Harry Potter. Fluffy is a three-headed ferocious dog who guarded the philosopher’s stone and evoked fear and intimidation in all those who encountered him. Calling the prison officers the ‘gatekeepers’ or ‘Fluffy’ of prison research, George writes that she was routinely ‘interrogated’ by them during her research on death row prisoners. She writes:

“... I was asked, ‘Why do you want to spoil India’s name in the international arena by doing such a study?’ ‘This study is unconstitutional’, ‘Why do you want to talk to the garbage of the society’, ‘you are from a good family, why do you want to talk to the rapists and murderers’, ‘it is because of the human rights activists like you that we lose power over them (prisoners), ‘It is people like you who spoil the society’, ‘you want to interview goons and dons who are a menace to the society, but you don’t want to help out the poor on the streets.”

Research requests are routinely denied on ambiguous and vague grounds. Mary George herself has been denied permission citing political , security, and ‘sociological’ reasons. She says often academics that are left-leaning are synonymized with being ‘Naxal (terror/extremism) sympathisers.’

In an interview with me, veteran penologist Vijay Raghavan echoed the same concern, noting that prison officers are now ‘emboldened to thwart research proposals with impunity.’ He further said prison departments are now routinely refusing permission to students interested in doing research on socio-legal situation of prisoners.

The situation is even more precarious for women scholars who wish to conduct in male prisons, and researchers from marginalised socio-demographic groups. Vineetha Sivakumar authored a detailed account. Sivakumar writes that even small factors such as a change in the Superintendent of a particular change could affect the fate of the entire research project. She argues that both the permission and conduct of research in jails is highly dependent on the political ideology of the prison officers. Additionally, she writes, as a woman researcher, she was discouraged daily, and faced relentless distrust and infantilization from both the prison department and the individual officers.

In October 2020, I had petitioned the Delhi High Court challenging the decision of the Delhi prison department to deny my request to conduct research in Tihar prison. I had challenged the decision on the grounds that as an administrative body performing a quasi-judicial function, the prison department ought to have given me cogent reasons for rejecting my application to enter. The court, relying on the new guidelines, ruled against my petition, claiming that conducting research in prison can’t be claimed as a ‘right’. Moreover, the court found COVID19 as a sufficient reason for denying request, ignoring the fact that I had sought permission to interview prisoners through video-conferencing, which was allowed under COVID19 guidelines.

Blind to Ethical & Emotional Concerns

The provisions for mandatory disclosure of data and seeking NOC from the prison department violates the research ethics of confidentiality and anonymity. Prison officers are now legally allowed to pressure the researchers to share raw data, which often contain testimonies that might be used against prisoners. Sivakumar believes that this demand has deterred prisoners from opening up and sharing an honest account with the researchers. The proximity of the prison officer during interviews also biases the interviews and contaminates the data collection.

Mary George recounts that she was often threatened by the prison officers to share personal and incriminating data about the prisoners with them. When she was researching women prisons, she had to endure questions like ‘what did this particular terrorist tell you’, ‘Did the woman prisoner tell you she has AIDS? Did she say how many people she slept with.’ George writes that saying no to such demands by citing confidentiality clause would result in arbitrary rescinding of permission or threat of legal action by the prisoner officer – both of which are officially sanctioned by the new guidelines.

Turning Penology Upside Down

The new guidelines not only threaten ethical research and make it hard to study life in prison, but they also go against established penal jurisprudence in India. The key prison reforms committees – Mulla Committee, Krishna Iyer Committee, Draft National Policy on Prisons and Correctional Administration - have all unequivocally mooted for greater involvement of researchers, social workers, and NGOs in the reformation and rehabilitation of prisoners. These committees, along with the Modal Prison Manuals, have emphasised implementing the provision of the U.N. Standard Minimum Rules for Treatment of Prisoners on encouraging and assisting prisoners for cultivating relations with persons or extra-institutional agencies conducive to their rehabilitation.

The Supreme Court of India in the landmark judgment of Sunil Batra v. Delhi Administration noted the importance of foregrounding the narratives of prisoners and their engagement with non-institutional external actors in the rehabilitation process. The court also recognised prisoner’s right to communicate with the outside world as a part of his fundamental right to free speech under the Constitution.

The new guidelines, therefore, fail to provide a reasonable justification for violating the penal jurisprudence and for subjecting prison research to an arbitrary system of unethical gatekeeping. It’s high time that the Ministry must reconsider the guidelines, especially the provisions on mandatory disclosure, no-objection certificate, and monetary deposit. Otherwise, the process to ensure rights-based reforms of the penal system will be further thwarted by the bureaucracy that thrives on opacity and systematic denial of prisoners’ rights.

Blog post by MSc student, Karan Tripathi. Karan tweets @TripathiGee