Amid pandemic, India’s political prisoners struggle with failing health in unequipped jails

As of 6 June this year, five of the 16 persons accused in the Bhima Koregaon case have spent over three years in jail without trial. These 16 individuals include lawyers, academics, a poet, a priest and activists. They are among scores of political prisoners in the country who have been arrested under the Narendra Modi government. Seven of the 16 have tested positive for COVID-19, and many of the others suffer from serious conditions, including comorbidities. Despite a rampaging second wave and increasing reports about worsening health conditions in jails, India appears intent on keeping its political prisoners behind bars.

Mahesh Raut, Sagar Gorkhe and Ramesh Gaichor—three of the 16 individuals accused of a conspiracy to foment violence at Bhima Koregaon, near Pune, on 1 January 2018—are among those who tested positive for the coronavirus. All three tested positive in Mumbai’s Taloja jail on 2 June. “They haven’t been given any COVID medicines yet—not even vitamin tablets,” their lawyer, Nihalsingh Rathod, told me the next day.

Rathod added that they were not provided nutritious food prescribed to COVID-19 patients, and were still given the regular prison food that lacked nutrition. “They are being kept in a small congested room of 15x8 size along with a few others inside the Taloja jail,” he said. “The jail authorities claim to be providing everything, but the patients are not even given hot water. The toilet facilities, sanitation and other COVID precautions are not in place.” Kaustubh Kurlekar, the superintendent of Taloja jail, did not respond to emailed queries.

Raut, Gorkhe and Gaichor were among at least eleven COVID-19 cases that spread among inmates of Taloja at the time, during the first week of June. The 13 men among the individuals accused in the Bhima Koregaon case, or the BK-16 as they have come to be called, are currently incarcerated in the Taloja Central Jail, and the three women—Sudha Bhardwaj, Shoma Sen and Jyoti Jagtap—are held in Maharashtra’s Byculla Jail. According to Shoma’s daughter, Koel, her mother is held in a small barrack in Byculla with around 40 other women.

Raut, Gorkhe and Gaichor tested positive during a drive conducted after Stan Swamy, an 84-year-old Jesuit priest, was shifted from Taloja jail to the Holy Family Hospital in Navi Mumbai. Despite Swamy’s health deteriorating for several days, the National Investigation Agency, which is investigating the Bhima Koregaon case, opposed his plea for medical treatment on multiple occasions. He was finally shifted to a private hospital, but only after the Bombay High Court instructed the jail authorities to do so on 28 May. Two weeks earlier, Hany Babu, a professor and another member of the BK-16, had also tested positive for the coronavirus. By then, it had been nearly two weeks since he had also developed an eye infection with symptoms resembling the deadly mucormycosis epidemic affecting COVID-19 patients. Babu, too, had to move the courts several times, challenged at every stage by the NIA, before receiving adequate medical care.

My conversations with colleagues and family members of the political prisoners revealed a common anxiety among all of them about the state’s apparent lack of concern for the deteriorating health of the inmates. “It’s like once you are in prison, all your rights are taken away,” Jenny Rowena, Babu’s wife, told me. Minal Gadling, the wife of Surendra Gadling, who is a lawyer and one of the BK-16, asked me, “Why are they being tortured like this and repeatedly being denied bail? Indirectly, you are pushing them towards death. We are all very worried.”

According to a study conducted by the Commonwealth Human Rights Initiative, Maharashtra’s prisons have seen 360 cases of COVID-19—of prisoners and jail staff—between 1 March and 23 May this year. The study further showed that at least 35 prisoners have died of COVID-19 since May last year. However, according to Rathod, “The information that we have is that for random screening, they were choosing young and healthy-looking people, so that the positivity rate looks low,” he told me. “The tests are also done late.”

Amid the catastrophic rise of the COVID-19 second wave in mid April, the Bombay High Court initiated a suo moto case about the number of cases in the state’s prisons, taking note of media reports that at least 200 prisoners had already tested positive. Mihir Desai, a senior advocate who is the amicus curiae in the case, has since informed the court that the prisoners were wearing the same masks given to them last year. It was only after the court’s directions that new masks were provided to prisoners. “They have to regularly replace masks,” Desai told me. “Testing for Covid is also very random. For instance, the only time Stan Swamy was tested was in October 2020 when he was arrested. After that there has been no tests or vaccination.”

The accounts of life in prison narrated by the inmates’ family and colleagues offer little reassurance. Since 31 May, Surendra Gadling has been under quarantine in a congested room with 40 people being kept in isolation, his wife Minal told me on 8 June. She said he had tested negative and was waiting to be shifted back to the barrack. “All of them are using one toilet and you can imagine the hygiene condition there,” Minal told me. “Further, it is raining in Mumbai and water is leaking into the room. Everything including their bedsheets are drenched and they try to spend most of the time in standing position.”

Minal also echoed Rathod’s concerns about the poor quality of the food, which is dangerous during the pandemic. She said that the prison authorities did not provide basic requirements such as bathing soap and medicines. “Surendra is worried about cataract and he has been requesting fors spectacles since March, they haven’t given him one yet,” she said. As a result, Minal added, Surendra had been unable to read the case documents properly to prepare his defence.

The struggle for proper medical care for Varavara Rao, an 82-year-old poet with several health ailments, who is also accused in the Bhima Koregaon case, is emblematic of the plight of India’s political prisoners. In March 2020, as the COVID-19 pandemic began to spread across India, the Supreme Court had directed state governments to constitute high-power committees to determine which prisoners would be entitled to be released on bail.

That month, Rao applied for bail on grounds of his old age and related health conditions—including hypertension, piles, coronary artery disease and vertigo—but was denied because he was arrested under the Unlawful Activities (Prevention) Act. In May, he applied for bail again, and while it was pending, Rao’s health deteriorated to a point where he had to be taken to the state-run JJ Hospital, in Mumbai. The special NIA court later dismissed Rao’s bail application, citing his discharge from the hospital. Rao then appealed this decision before the Bombay High Court.

In his appeal, Rao highlighted the inadequate health facilities at the Taloja Central Jail in a bail application. Rao noted that the jail’s facilities did not meet the mandatory requirements under the Maharashtra Prison Hospital (Amendment) Rules, 2015. Rao, through his lawyers, submitted before the Bombay High Court that that there were no doctors at the jail, and only three Ayurvedic practitioners to look after inmates. He further stated that were no staff nurses, no pharmacists, no compounders, no nursing assistance, no lab technicians and no medical specialists to attend to the inmates at the Taloja Central Prison hospital.

The high court hearing continued for months, during which period Rao’s condition continued to deteriorate, adding symptoms such as hallucination, incoherent speech and a urinary-tract infection to his other medical ailments. In July, the octogenarian slipped and sustained injuries that required stitches. Yet, later that month, the NIA opposed his appeal seeking bail, arguing that Rao should not seek released on humanitarian grounds because he was accused of activities against the Indian state. In November, as Rao’s health worsened, the court allowed him to be taken to Nanavati Hospital for treatment. At every stage, the NIA opposed Rao’s pleas for release, even to a private hospital. 

The court finally ruled on the appeal on 22 February this year. While Rao was once again in Nanavati Hospital, the Bombay High Court pronounced its judgment releasing Rao on bail for six months. “We find that the material on record clearly indicates that the said hospital attached to the Taloja Central Prison is ill-equipped and inadequate to take care of the health of the undertrial,” the judgment noted. “We have come to the conclusion that sending the undertrial back to Taloja Central Prison would certainly endanger his life.” The court also specifically rejected the NIA’s plea that Rao was not “entitled to relief under humanitarian grounds or for any other grounds.”

Despite the severity of Rao’s health condition, the central investigative agency attempted at every stage to keep him behind bars, even seeking a stay on the February 2021 judgment for three months, which was denied by the high court. Stan Swamy, a Jesuit priest and another octogenarian member of the BK-16, was met with similar resistance from the NIA despite having Parkinson’s disease.

During a bail hearing in May this year, Swamy interacted with a high court bench via video conference and described his ordeal in painful detail. “I was brought here eight months ago,” Swamy said. “When I came to Taloja, whole systems of my body were very functional, but during these eight months there has been a steady by slow regression of what whatever my body functions were. Eight months ago, 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 … I am requesting you to consider why and how this deterioration of myself happened.”

According to the senior advocate Desai, who is representing Swamy before the high court, the facilities at Taloja have not improved from what Rao had described. Meanwhile, the NIA special court has repeatedly dismissed Swamy’s bail applications despite his medical conditions, and the matter is currently under appeal before the Bombay High Court. On 28 May, the court directed for Swamy to be shifted from the Taloja Jail hospital to a private hospital in Mumbai for treatment, where his stay has been extended till 5 July, while the bail hearing before the high court continues.

The case of Siddique Kappan, a journalist from Kerala who was arrested on his way to report on the brutal gang rape of a Dalit woman in Hathras, shows that the situation is no better in Uttar Pradesh. Kappan was booked for sedition under the UAPA in October last year, and his condition, too, deteriorated rapidly during the second wave. In April, he tested positive for COVID-19 after he collapsed after suffering from fever for two weeks and sustained injuries in prison. Soon after, his wife, Raihanath, learnt that he had been taken to a hospital in Mathura for his COVID treatment, where he was tied to a bed and not allowed to use the toilet.

Soon after, the Kerala Union of Working Journalists filed a petition before the Supreme Court seeking his transfer from Mathura Jail to AIIMS, Delhi, noting that 50 inmates of the prison had tested positive. The petition also pointed out that water scarcity in the prison had led to serious hygiene and health concerns. On 29 April, the court ordered for his transfer to AIIMS, where he was taken the next day. Raihanath reached Delhi from Kerala on the same day, but she was denied permission to meet her husband. On the night of 6 May, he was shifted out of AIIMS without the completion of his treatment or an intimation to his family or lawyer about his health condition, according to Raihanath.

“We weren’t able to communicate for up to 45 days initially,” she told me. “But after the Supreme Court directed, the communication improved and now he calls for two–three minutes every day.” According to her, the prisoners were not even provided proper masks. “He has tested negative and back in prison now. But it is scary—the prison is not equipped to take care of prisoners who fall ill. The food given twice a day is very poor in nutrition and that also led to the deterioration of his health.” She added that after he was brought back from AIIMS, they gave him an egg along with a glass of milk for a few days. “Kappan tells me that there is no consideration as human beings once they are inside prisons,” Raihanath said.

All the relatives and lawyers of the inmates I spoke to said that communication remained a serious issue since physical mulakats—visits to the prisons to meet the inmates—were stopped due to the pandemic. They told me that they hardly got five minutes to talk and the noisy background made communication even more difficult. The letters of prisoners, especially of the BK-16, were being delivered after much delay, according to the relatives.

Rowena, Hany Babu’s wife, spoke to me about the difficulty in getting any updates about her husband’s health condition. “Whenever we call the jail authorities, they don’t pick up the call or say this is not the number,” she told me. “The lawyer was also finding it difficult to talk to him and had to call several times and write letters to get help.” Babu is currently undergoing treatment at a private hospital after he contracted COVID-19 and showed symptoms of mucormycosis—or black fungus, as it is more commonly known—in prison.

Despite informing the jail authorities of an acute eye infection on 3 May, Babu was admitted to a private hospital only six days later, where he tested positive for COVID-19. “If it was properly treated by an ophthalmologist in the first 2-3 days, it would not have affected his gland, muscles and other organs,” Rowena told me. “He was close to losing his eyes and even life. It was only a matter of days. He must have suffered so much knowing that he was not getting the right treatment.” She continued, “He is very weak now and his eye is still paining. The thought of him going back to prison is very scary. How can we trust the prison system to give him adequate care that he needs now?”

Rowena, along with the relatives of other co-accused, have also raised the issue of water scarcity in Taloja prison during summer. “Due to an acute water shortage in the prison, he does not have access to clean water to even bathe his eye and is forced to dress his eye with soiled towels,” she wrote in a press release dated 11 May. According to the Prison Statistics of India 2019, the sanctioned medical strength of the medical staff positions in Indian prisons is 3,320, and only 1,962 were actually posted as of 31 December 2019. In other words, over two-thirds of the medical staff positions in Indian jails were vacant at the start of the pandemic.   

While the health condition of Rao, Swamy and Babu are more serious, they are hardly the only members of the BK-16 to suffer from deteriorating health. According to family members of Anand Teltumbde, who is 72 years old, Shoma Sen, who is 63, and Sudha Bharadwaj, who is 58, they all suffer from multiple pre-existing ailments that have deteriorated during their stay in prison. Bharadwaj has developed arthritis and a heart condition during her three-year-stay in jail. According to her relatives, she was suffering from diarrhea, fatigue, loss of appetite and sense of smell, and a worsening health condition for over three weeks in April this year. When asked about this, Sadanand Gaikwad, the superintendent of Byculla prison, told The Hindu, “Ms. Bharadwaj keeps complaining. She has no body ache, no diarrhoea. She resorts to these gimmicks to get bail.”

According to Harshali Potdar, a colleague of Sudhir Dhawale—a 52-year-old human-rights activist and another member of the BK-16—the Bhima Koregaon undertrial was denied a COVID-19 vaccine in prison because he did not have his Aadhar card. “His documents have been confiscated by the police, how can they ask him to provide it then?” Potidar asked. Dhawale was later vaccinated, and among the BK-16, only four others have received vaccines, according to a joint letter, dated 13 May, by the families of Bhima Koregaon prisoners to Uddhav Thackeray, the chief minister of Maharashtra. The letter noted that Gautam Navlakha, Vernon Gonsalves, Bharadwaj and Sen had received their first dose. Rathod told me that Gorkhe, Gaichor and Raut were denied vaccines because they were below 45 years of age, despite this not implying ineligibility for the vaccination. “Why is it denied for prisoners who live in such a risky situation?” Rathod asked.

The prisoners have also been denied interim bail on urgent requests concerning their family members. For instance, the NIA even opposed Surendra’s bail application after his mother died in August 2020. The NIA sought her death certificate. The bail was ultimately denied because three weeks had passed since his mother’s death, so the court ruled that Surendra was not needed for funeral rites, and because he did not provide documentary proof of the condolence meeting. “When he requested again to attend a condolence meeting for her mother, they told him everything is over, why do you want to go now?” Minal told me. “They said that he was creating drama to get bail. Who will make a drama out of their mother’s death?” Dhawale, too, had been denied permission to attend his elder brother’s funeral and condolence meeting last year.

The NIA’s challenge to the bail applications by the political prisoners is in the face of steps taken by the Supreme Court, the Bombay High Court and Maharashtra’s high-powered committees to decongest prisons during the pandemic. On 24 March 2020, following the Supreme Court order, the Maharashtra government had constituted an HPC comprising Shree Kant Singh, an additional chief secretary in the state government, and SN Pandey, the director general of prisons.

In its first resolution passed the next day, the HPC proposed that undertrials and convicts serving sentences of seven years or less should be considered favourably in granting interim bail as long as the Epidemic Act, 1897 is in force. Certain offences under the Indian Penal Code were exempted from these relaxations, including offences against the state, as well as offences under anti-terror laws such as the UAPA. The HPC’s second resolution, dated 10 May 2020, noted that there were 1,340 prisoners above the age of 60 who were at higher risk to COVID-19. The HPC recommended that they should be considered for release notwithstanding the previous 24 March recommendations.

As of 31 July last year, Maharashtra had released 10,811 prisoners in accordance with the HPC’s decisions, according to the minutes of its meeting on 11 May this year. The minutes further reveal that the state’s prison population has reached 34,733, out of which 29,186 are undertrials and 5,547 are convicted prisoners. Among the undertrials, 16,147 had applied for interim bail following the decisions of the HPCs, out of which only 214 were allowed, 3,182 were rejected and 12,751 are still pending before courts.

This April, in the wake of the alarming situation in prisons during the second wave, the high court ordered the committee to issue fresh guidelines to further decongest prisons. Accordingly, on 11 May, the HPC directed that applications by prisoners over 65 years of age and with comorbidities should be considered more sympathetically, irrespective of whether their previous applications for bail were rejected. 

Most of the undertrials in the Bhima Koregaon case are over 60 years old and many of them suffer from multiple illnesses, including comorbidities that make them more vulnerable to COVID-19. In the joint letter to the chief minister Thackeray, the families of the Bhima Koregaon prisoners urged him to recommend the committee to release them on interim bail. Thackeray did not respond to the letter, according to Rowena.

According to the senior advocate Desai, the HPCs have the power to direct interim bail for those booked under the offences that were exempted from the existing guidelines. “The Supreme Court had said that it was only giving directions for setting up HPC and the HPCs are in the best position to decide the release of prisoners,” he told me. Desai pointed out that when the Bihar HPC said that there was no overcrowding in the state and hence there was no need to release anyone, the Supreme Court agreed to it.

According to Ajay Verma, the convener of National Forum on Prison Reforms, the number of prisoners is alarming, with prisons such as Tihar overpopulated to nearly twice their official capacity. Verma told me that despite the setting up of HPCs, prisons in most states continue to be overcrowded with inadequate sanitation and medical facilities. Uttar Pradesh, Delhi, Uttarakhand, Chhattisgarh, Madhya Pradesh, Maharashtra, Meghalaya and Sikkim have a current occupancy rate of above 150-170 percent. “When the health system outside is failing, how can we expect the jails to be any better?” he asked. “The resources are very limited inside.”

In April 2021, the National Forum on Prison Reforms filed an intervention application in the Supreme Court’s suo moto case concerning the spread of COVID-19 in prisons.  The NFPR’s application noted that many jails have recorded a higher number of inmates than prior to the outbreak, “thus making both the prison inmates and the officials vulnerable to the virus.” For instance, the application relied on data by the Bhopal-based Criminal Justice and Police Accountability Project to show that Uttar Pradesh had let out 9,000 inmates on interim bail or parole, but made 15,000 new arrests, as a result of which the total occupancy rose to 180 percent in March 2021.

Apart from Delhi and Maharashtra, hundreds of activists, especially from Adivasi and minority communities, are imprisoned in the states of Chhattisgarh, Jharkhand, Karnataka, Rajasthan and Gujarat. As of December 2020, over 90 percent of prisoners in Jammu and Kashmir were undertrials, as per official data disclosed in response to a right-to-information application. Hidime Markam—an activist who was working with Jail Bandi Rihai Manch against the incarceration of Adivasis in fake cases—is also awaiting trial and currently incarcerated at the Jagdalpur Central Jail in Chhattisgarh. She was arrested on 9 March this year, during a gathering to mark International Women’s Day, in a case related to a 2016 attack on a police team.

Sujeet Karma, the secretary of the Jail Bandi Rihai Manch, also said that communication with Markam had been extremely difficult during the pandemic. “Earlier, when we got to know about issues faced by specific prisoners, we could contact the jail authorities and ask them to take action,” Karma said. “But now we are not able to get information and updates like before. The information we have is that the situation in jails in the state are same as before, there has been no changes in facilities inside during the pandemic.”

Karma also said that there were several factual errors in the FIR based on which Hidme had been arrested. “For instance, even the name in the FIR is wrong. She was arrested under the name of Hidme Kawasi,” he told me. There are a large number of cases in the state where the accused were falsely implicated and are now languishing in jail, according to Karma. In March 2019, the state’s Congress-led government under the chief minister Bhupesh Bhagel had set up a committee headed by the retired Supreme Court judge AK Patnaik to identify those false cases and recommend people for release. But the results have been slow. In early June, the government announced that 594 cases involving 726 members of Adivasi communities had been withdrawn, while 33 cases recommended by the committee are pending before the courts for withdrawal.

One reason for the repeated denial of bail for political prisoners booked under the UAPA or sedition law is the high standard for granting bail imposed in these legislations. For instance, Section 43D of the UAPA states that an “accused person shall not be released on bail or on his own bond if the Court … is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” As a result, the burden on an applicant seeking bail under the UAPA is extraordinarily high. Consequently, courts tend to keep the accused individuals detained, and investigative agencies oppose bail on flimsy grounds even when the prisoners suffer from critical medical conditions.

The activist Umar Khalid, who is also booked under the UAPA in a case related to the Delhi violence of 2020, has commented on the bail provisions under the draconian law. In an article authored by him this May, based on his communications to his friends from jail, Khalid stated: “As a law, the UAPA makes a mockery of the Supreme Court’s observation that bail is the rule and jail an exception.” He continued, “For all effective purposes, the UAPA turns this principle on its head by requiring an accused person to prove their innocence and thereby proceeding on a presumption of guilt, even in order to grant bail. That too, without the benefit of a trial.”  

On 15 June, the Delhi High Court granted bail to three student activists arrested in the same Delhi violence case as Khalid, in a judgment that has the potential to create a new legal jurisprudence surrounding the standard for bail under the UAPA. The bench, comprising the judges Siddharth Mridul and Anup Bhambani, held that the UAPA can only be invoked in exceptional circumstances, and not for crimes that do not fall under these circumstances. The bench also ruled that if offences under the UAPA are not made out by the actions of an accused individual, then the draconian law cannot be invoked merely by labelling the actions as a terrorist act. In a now famous quote from the judgment, the bench held, “We are constrained to express that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy.”

But the shelf life of this judgment remains to be seen. On 18 June, the Delhi Police appealed against the Delhi High Court’s judgment. The solicitor general, Tushar Mehta, appearing for the Delhi Police, revealed the centre’s anxiety about the judgment. “Lawyers are moving for bail using this judgment,” he said. “The findings virtually reads like an acquittal. Trial courts can entertain discharge applications and replace it with this judgment.” While the apex court declined to issue a stay on it, the bench directed that the judgment would not have any precedent value and cannot be used by any party in any court while the appeal is pending.

These cases reflect the danger to India’s political prisoners who are struggling to survive the public-health crisis sweeping the country in the face of efforts by central-government agencies to ignore or dismiss their pleas for help. On 19 June, while speaking at an online meeting organised by the International Solidarity for Academic Freedom in India, Rowena pointed out that the majority of the prisoners in India are from Dalit, Bahujan and Muslim communities. She said that the prisons remain in bad condition as the system is designed to punish people from these communities who raise their voices against the state.

“If you ask for any kind of reforms or change, this will be your situation—you will be just thrown behind bars, fabricated cases will be charged against you and you will lie there,” Rowena said. “India is a caste colony and jails are meant to manage this caste colony.”