India’s long lockdown led to breakdown of criminal justice system

New Delhi, India – On May 25, the day India celebrated Eid al-Fitr, Talha, 12, and five-year-old Mariam slept with their mother’s mobile phone next to them all night.

They had not spoken to their father, Khalid Saifi, since a nationwide lockdown was imposed in India on March 25 to check the spread of the novel coronavirus.

“They thought he would call on that day [Eid], ” his wife Nargis Saifi told Al Jazeera.

Khalid, in a New Delhi jail since February, is among thousands of prisoners awaiting trial as India’s criminal justice system came to a complete halt during the pandemic.

Under the lockdown, legal services were not classified as essential by the government, which allowed only a small number of “virtual” courts to operate.

With virtual courts only taking up “urgent” cases that were not clearly defined, access to legal representation, bail or a fair investigation became virtually impossible.

Due to the pandemic, visits to prisons by lawyers and families were also banned. The only way prisoners can contact family members is through landline phones, but they have a long waiting list.

Khalid has still not made his way up that waiting list to earn a phone call.

Last week, the Bar Council of India wrote to the chief justice of India’s Supreme Court, asking that the court issue directions to resume physical court hearings across the country from June 1.

“Ninety-five percent of advocates and lawyers are unaware of technology, and virtual courts are only accessible to a few lawyers, which leaves the fraternity briefless or without work,” wrote the council.

Madhurima Dhanuka, who works with the Prison Reforms Programme at the Commonwealth Human Rights Initiative, told Al Jazeera Indian court officials are “untrained and ill-equipped” to hold virtual courts.

“There are internet connectivity and access issues. Thus, most criminal courts are neither functioning nor bail petitions are being heard,” she said.

There are 36 million cases pending in the Indian courts, with the coronavirus lockdown creating a further backlog.

Overcrowded prisons

Another feature of the breakdown of India’s criminal justice system is its overcrowded prisons, which have turned into sites vulnerable to the spread of COVID-19, the disease caused by the new coronavirus.

India’s prisons have an average 114 percent occupancy rate, with the “under-trials” – people in custody awaiting investigation or trial – constituting nearly 68 percent of the prison population.

Seventy percent of these under-trials are illiterate or semi-literate, indicating their marginalised backgrounds.

On Monday, the Delhi High Court, while hearing a case related to the religious violence in the Indian capital in February, said prison is “primarily for punishing convicts, not for detaining undertrials”.

“The remit of the court is to dispense justice in accordance with law, not to send messages to society,” said Justice Anup J Bhambhani.

He said keeping the under-trials in prison “inordinately without any purpose” leads to overcrowding and leaves them with the impression that they are being punished before trial and treated unfairly.

On March 21, four days before India’s lockdown was announced, riots broke out in Dumdum Central Jail in the eastern city of Kolkata that left one dead and over a dozen injured.

It was reported that the prisoners were upset with measures taken to slow down the spread of COVID-19, which included delaying court hearings and cancelling visits with families.

Two days later, India’s Supreme Court asked the states to decongest prisons to prevent the spread of the coronavirus. The committees set up to determine the release of prisoners on parole or interim bail recommended that those who were convicted or under-trial for offences that carried penalties of seven years or less of prison should be released.

So far, the three prisons in New Delhi have reported nearly two dozen COVID-19 cases, with the number of asymptomatic prisoners believed to be exponentially high.

Sandeep Goel, director general of prisons in the capital, told Al Jazeera a special force for contact-tracing of coronavirus cases had been formed.

When asked why the prisoners are not able to access phones to speak to their families, he said: “We have limited resources.”

Meanwhile, Michelle Bachelet, the United Nations high commissioner for human rights, in March urged that countries should first release political prisoners amid the global pandemic.

But India has only released 42,000 prisoners so far to unclog its prisons. Moreover, by not releasing the political prisoners, it joined Nicaragua, Turkey, Algeria, Spain and Myanmar in cracking down on government critics.

Targeting activists, Muslims

In fact, one of the hallmarks of the two-month lockdown in India has been a sustained targeting of political dissenters and Muslims by the Hindu nationalist government, which appeared to be using the limited access to legal resources as a handy tool for political vendetta.

Khalid, 38, was arrested for protesting against the controversial Citizenship Amendment Act (CAA), passed by the Indian government in December last year. The CAA promises Indian citizenship to non-Muslim refugees from neighbouring Pakistan, Bangladesh and Afghanistan.

The law was widely criticized for being discriminatory and violating India’s secular constitution. The UN, which called the CAA “fundamentally discriminatory”, moved an application in India’s Supreme Court to become a party in one of the many petitions challenging the law.

Three weeks after Khalid’s arrest, a video emerged in March which showed him being presented in court on a wheelchair.

At the time of his arrest, Khalid was fit, the wheelchair indicating he could have been tortured in custody.

“During the lockdown, we have not even been able to provide him money to buy nutritional supplements and medicines to heal. After he was brutally beaten up, it is hard to trust the prison authorities,” his wife Nargis told Al Jazeera.

Khalid’s bail has been denied multiple times in the last three months. Nargis fears more custodial torture.

In February, 19 anti-CAA protesters were arrested in the Azamgarh district of the northern Uttar Pradesh state. On March 20, a lower court rejected their bail petitions.

With the nationwide lockdown imposed five days later, travel restrictions did not allow them to appeal in the High Court in Allahabad, officially known as Prayagraj, a city 180km (112 miles) away from Azamgarh.

“When legal representation for one party is not allowed, the person taken into custody is stripped of their rights under Article 21, and all access to justice is blocked,” Rebecca John, a senior criminal lawyer in the Supreme Court, told Al Jazeera.

Article 21 of the Indian Constitution guarantees the right to life and personal liberty.

In August last year, thousands of preventive arrests were made in Indian-administered Kashmir after New Delhi scrapped the region’s semi-autonomous status and divided it into two federal territories.

Ten months later, many Kashmiris are still demanding the release of their family members languishing in various Indian jails amid a pandemic.

‘Continue making arrests’

On March 31, one week into the lockdown, India’s Ministry of Home Affairs told the Delhi Police to “continue making arrests under any circumstances” of people allegedly involved in the February riots in the capital that left 53 dead, most of them Muslims.

So far, more than 1,300 arrests have been made, including some victims and complainants, with activists accusing the police of harassing Muslim survivors.

On May 23, as India’s COVID-19 cases passed a million, two activists, Devangana Kalita, 30, and Natasha Narwal, 32, were arrested by the Delhi Police. Both of them are members of the Pinjra Tod (Break the Cage) feminist movement and were arrested for their alleged role in anti-CAA protests and the Delhi riots.

Kalita was accused of rioting and unlawful assembly, while Narwal was slapped with the stringent Unlawful Activities Prevention Act (UAPA) on May 29.

The UAPA allows investigative agencies to proscribe individuals as “terrorists”. A person charged under the law can be jailed for up to seven years.

Safoora Zargar, 27, a student activist arrested for anti-CAA protests, was also charged under the UAPA days after she made bail. She is four months pregnant and is being held at Tihar, India’s most crowded prison, amid a deadly pandemic.

At least four other anti-CAA protesters – Gulfisha Fatima, Meeran Haider, Asif Iqbal Tanha, and Shafi-Ur Rehman – have also been charged under the UAPA.

“Under the pandemic, the system of serving notices before arrests has been suspended. That gives no opportunity to the accused or their legal counsel to prepare or later argue their cases in the court when they are suddenly slapped with stringent laws like UAPA,” lawyer Rebecca John told Al Jazeera.

On May 6, a group of UN special rapporteurs wrote to the Indian government, raising concerns over the indiscriminate use of the UAPA and expressed concerns over several human rights violations. They said the law has been used to target religious and other minorities, human rights defenders and political dissidents.

The Indian government paid no heed to their letter.

On May 13, a number of world organisations, including the World Health Organization (WHO) and UN Office of the High Commissioner for Human Rights, issued a joint statement, urging governments to release inmates at particular risk of COVID-19.

The list included older people and people with pre-existing health conditions, as well as those sentenced for minor, non-violent offences, with specific consideration given to women and children.

Several activists also appealed to India’s National Human Rights Commission, pleading for Zargar’s release and citing the grave health threats to her and her unborn child.

Yet, on May 26, her bail petition was rejected, and her judicial custody extended till June 25.

It was also during the lockdown that two activists, Gautam Navlakha and Anand Teltumbde, both above the age of 65 with pre-existing having health conditions, were arrested after the Supreme Court denied them relief.

Similarly, former Delhi University professor, GN Sai Baba, who is disabled, has been languishing in jail on sedition charges for more than five years and denied release.

“The non-functional criminal courts in the lockdown have stripped them of that one thing they survive on: hope,” said Dhanuka of the Commonwealth Human Rights Initiative.

However, Khalid Saifi’s young daughters Mariam and Talha run to get their mother’s phone each time it rings, expecting it to be their father.

“Children never give up hope. The courts should step up to make sure they don’t,” says Nargis.