Who is a political prisoner? Time to define one

By Nandita Haksar

THERE has been a great deal of anguish, angst and anger expressed at the death of Stanislaus Lourduswamy (1937–2021), popularly known as Stan Swamy, an Indian Roman Catholic priest, a member of the Jesuit order, and a tribal rights activist for many decades.

Swamy was the oldest person to be accused of terrorism in India. His supporters say that his death was hastened by the conditions in the prison where he was incarcerated. The repeated denial of bail resulted in deterioration of his health and he finally died of COVID-19 complications on July 5, 2021. Knowing that the end was near, he had asked to be allowed to die in his home in Ranchi rather than in jail.

Swamy was arrested on October 8, 2020 and charged by the National Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act (UAPA) for his alleged role in the 2018 Bhima Koregaon violence and links to the Communist Party of India (Maoist).

His death has drawn focus to the cruelty of the system which denied the right to die with dignity to a senior citizen who was suffering from Parkinson’s disease. However, the imprisonment of Stan Swamy and other political prisoners, including poets, journalists, bloggers, women activists, students, Dalits and Muslims, raises crucial questions. It is not just a humanitarian issue but a political one.

At least one veteran human rights activist, Sumanta Banerji, says we should not merely condemn the State but firmly demand it be accountable. He suggests human rights activists demand: (i) punishment  of the NSA  officials  who  framed  Stan  Swamy  in  a  false  case; (ii) penalizing of the  jailor  and  warders of Taloja  jail where he  was  deprived  of  medical  facilities  that  led  to the deterioration  of  his  health by  putting  them  behind  bars  and  imposing  fines; dismissal  of  the  concerned judges  for  gross  misconduct  in  denying  bail  to  the bedridden  octogenarian and  their  permanent  ouster  from  judicial  ranks.

Banerji, now well past 80, was himself a Naxalite prisoner. We were both active in the People’s Union for Democratic Rights (PUDR), being its secretary at different times. The post-Independence human rights movement began with the demand for release of all political prisoners arrested during the Emergency in 1975.

The political prisoners included people of divergent political views ranging from Kuldip Nayar, the veteran journalist, to Prabir Purkayastha, a student of Jawaharlal Nehru University (JNU) and a member of the Communist Party of India (Marxist), Vijay Prasad, a Delhi University student and a socialist by conviction, Shankar Guha Niyogi, the legendary trade union leader, and hundreds of Naxalite prisoners to members of the RSS who had opposed the Emergency.

The 1970s saw a rise in the number of political prisoners all over the world. One writer has described the decade not as a Golden Space Age but as “a new era of barbarism.” In an article published in the Saturday Review in June 1974 titled “Geography of Disgrace” based on an Amnesty International report, the author estimated that there were between one million to two million political prisoners all over the world. By “political prisoners” he meant those incarcerated solely because of their political views.

A protest against the arrest of Stan Swamy and other social activists in Ranchi, Jharkhand

During the same period in India, the number of political prisoners grew. In West Bengal it was estimated there were some 30,000, mostly either members of the new CPI (ML) party or sympathetic to its demands. Amnesty International brought out a report in 1974 on the political prisoners imprisoned in the jails of West Bengal.

The Amnesty report quotes the minister for jails of West Bengal, Gyan Singh Sohanpal, as stating on February 21, 1974, “The West Bengal government will convert Barasat sub-jail in 24-Parganas district into a correctional institution to bring about a psychological change in the behaviour of the ‘misguided youths’, mainly Naxalite prisoners.”

According to Sohanpal’s statement, the Naxalites were to be regarded as “psychopaths and in need of psychotherapy to get rid of the extremity of mind”.

My own political activism began during the post-Emergency days and that is why I have always felt deeply about the plight of political prisoners. When I became a lawyer I took up cases of political prisoners. In the course of my thirty years of working as a human rights activist I took up cases of dozens of political prisoners in at least 18 states, from Bihar to Punjab, Nagaland, Manipur and Goa. I also took up cases of foreign prisoners, mostly refugees, who were political dissidents.

 

NEVER AN EASY TASK  

This was never an easy task.  Many times, I disagreed with my clients’ views, especially on the question of women. In one case, my clients were Arakan freedom fighters whose anti-Rohingya views were very disturbing. Then there were those who shared the Taliban’s ideology but had been deliberately framed as terrorists.

I took up the cases of all those whom I considered to be political prisoners, irrespective of their ideology. I was in part inspired by the growing body of prison literature. Prison literature is taught as a course in many American universities. It is the poems, memoirs and fiction written by prisoners, and most of them are political prisoners.

People paying homage to Stan Swamy after his death

These include the letters of Ethel and Julius Rosenberg to their sons before they were executed in 1953, the memoirs of Nelson Mandela, Long Walk to Freedom, the rich Afro-American prison literature such as the writings of Angela Davis and Malcolm X, and, more recently, Moazzam Begg’s Enemy Combatant: My Imprisonment at Guantanamo, Bagram and Kandahar. There are powerful novels like One Day in the Life of Ivan Denisovich by Aleksandr Solzhenitsyn about conditions in the Siberian camps in the Soviet Union which won a Nobel Prize.

In India, too, there is a growing body of literature by prisoners including Mary Tyler’s My Years in an Indian Prison (1978), Iftikar Gilani’s My Days in Prison (2009), Arun Ferreira’s Colours of the Cage: A Prison Memoir (2015), Mohammad Aamir’s Framed as a Terrorist: My 14-Year Struggle to Prove My Innocence (2016) and Kobad Ghandy’s Fractured Freedom: A Prison Memoir (2021). And then there is a moving account, the memoirs of Sunil Gupta, warden of India’s biggest jail, co-written with Sunetra Choudhury, Black Warrant: Confessions of a Tihar Jailer (2019).

These prisoners belong to very different ideological commitments, but all of them were political prisoners. Yet, often, when a demand is made for the rights of political prisoners it is repeatedly made on the basis of ideological affiliation. For example, in an open letter to the chief minister of Andhra Pradesh, dated December 23, 1994, the Naxalites belonging to the CPI [Marxist-Leninist (People’s War Group)] demanded that “activists of all revolutionary parties who are in jails as undertrial prisoners and convicts, should be recognized as political prisoners”. The demands also included imprisonment in a separate block, lifting of censorship and surveillance by intelligence officers and other demands pertaining to their daily needs.

While the Naxalites articulated their demands in the language of human rights, their view of human rights was instrumentalist and there was never any debate on who is and who is not a political prisoner. But the liberals too did not agree on a definition of who is a political prisoner. There are academic debates on the problems of defining a political prisoner.

The ailingTelugu poet, Varavara Rao, was imprisoned for his left-wing ideology

Christoph Valentin Steinert, writing in the Journal of Global Security Studies (September 2021) on the subject of who is a political prisoner, suggests that the definition should be based on the conceptualizations of the United Nations Working Group on Arbitrary Detention (UN-WGAD) and of the Council of Europe so that it is grounded in international law. Based on this reasoning, political prisoners are individuals who are convicted in politically biased trials and incarcerated. Trials are deemed politically biased if they are endorsed by the government and (a) lack domestic legal basis, (b) violate principles of procedural justice, or (c) violate universal human rights.

 

AMNESTY’S DEFINITION

This definition is consistent with Amnesty International’s definition of a political prisoner. It campaigns for a fair trial for all political prisoners but it does not campaign for their release unless they can be categorized as what Amnesty calls “prisoners of conscience”. The latter category are those who do not advocate or support armed resistance.

This is the reason Amnesty International never adopted Nelson Mandela as a prisoner of conscience through the 27 years he was in jail because, as a member of the African National Conference, he supported armed resistance. Subsequently, Amnesty did put forward an explanation for its stand.

Cosmos Desmond, the director of the British chapter of Amnesty International, wrote a scathing attack on Amnesty International’s policy on political prisoners in a book which is not easily available now, Persecution East and West: Human Rights, Political Prisoners and Amnesty, published by Penguin in 1983.

 

NEED FOR DEBATE

Unfortunately, in India the human rights movement has not engaged with these debates even though it has focused on the plight of political prisoners. Why is it necessary to have a debate and discussion on who is and who is not a political prisoner?

The first reason is that the conversation will separate the debate on political prisoners from whether or not one agrees with their ideology. It brings back the focus on political prisoners and not their individual ideological stands.

For instance, Jaithirth Rao, an Indian businessman, has written a piece on Stan Swamy, “Marxist Jesuits are not for tribal welfare”, suggesting that priests should not be Marxists. Apart from the fact that it is misinformed on the place of liberation theology, the article tries to undermine the relevance of the debate on the plight of political prisoners. Personal attacks and criticism of a political prisoner’s viewpoint are used as an argument to deny the status of political prisoner to a person.

Secondly, a political prisoner has a right to access international organizations or international advocacy campaigns.

Thirdly, a definition of a political prisoner would ensure more transparency and accountability in the system. The lack of legal definition allows the government to manipulate the debate and justify the continuous corruption of the entire criminal justice system.

The demand for a fair trial, proper procedures and transparency ensures not only justice for the prisoner but also the integrity of the criminal justice system. When I took up the campaign for S.A.R. Geelani, the Delhi University lecturer accused in the Parliament attack case, I said defending Geelani is defending Indian democracy. 

The hate and prejudice generated against Muslims in general and Kashmiri Muslims in particular meant that a Kashmiri Muslim was vulnerable to being framed and may have been hanged if we had not intervened. Our campaign did not only save one man but built bridges with Kashmiris in the Valley, showed the possibility of justice in Indian courts and made the police accountable to the public. The gains of the campaign were wiped out by subsequent events, showing that human rights campaigns have an important but limited role in changing the political system.

There is no data on the number of political prisoners in the country. In response to a question in Parliament, the Ministry of Home Affairs replied that there are no records of the arrests of civil rights activists. This response comes in the wake of a press release by the Office of the United Nations High Commissioner for Human Rights citing an increase in the restrictions on NGOs and arrests of civil rights activists in India.

The minister of state for home affairs, G. Kishan Reddy, said that the National Crime Records Bureau (NCRB) does not maintain any specific data on arrests/detention of civil rights activists.

 

CRIMINAL OR REFORMIST?

The National Human Rights Commission (NHRC) should maintain a database on the arrests of people who fall in the category of political prisoners.

According to Angela Davis, the Afro-American feminist and Marxist scholar, “There is a distinct and qualitative difference between one breaking a law for one’s own individual self-interest and violating it in the interests of a class or a people whose oppression is expressed either directly or indirectly through that particular law. The former might be called a criminal (though in many instances he is a victim), but the latter, as a reformist or revolutionary, is interested in universal social change. Captured, he or she is a political prisoner.”

This definition has relevance when we look at the latest prison statistics released by the National Crime Information Bureau which shows that the number of Muslims, Dalits, and tribals incarcerated is disproportionate to their population.

Muslims make up only 14.2 percent of India’s population but 16.6 percent of convicts, 18.7 percent of undertrials and 35.8 percent of detenus in Indian prisons are Muslims as of December 31, 2019.

The statistics for Dalits is equally skewed: Over 21.7 percent of convicted inmates, 21 percent of undertrials and 18.15 percent of detenus were Dalits. Their share in the population is, however, around 16.6 percent.

At the end of 2019, tribals made up 13.6 percent of convicts in jails, while 10.5 percent of undertrials and 5.68 percent of detenus were from the Scheduled Tribes. They comprise 8.6 percent of the population as per the 2011 census.

Why are there so many Adivasis, Dalits and Muslims in jail? Are they criminals or are they people who are at the receiving end of prejudice, hate and a skewed development policy against which they find themselves pitted and when they protest they land in jail?

Davis’s definition of a political prisoner is unlikely to be accepted by the system, but it is not impossible to have a definition of who is a political prisoner.

In October 2012, the Parliamentary Assembly of the Council of Europe (PACE) became the first major intergovernmental organization to approve concrete criteria for what defines a political prisoner. According to PACE guidelines, a person is a political prisoner if he or she meets any one of the following criteria:

• The detention violates basic guarantees in the European Convention on Human Rights, particularly freedom of thought, conscience and religion; freedom of expression and information; and freedom of assembly and association.
• The detention is imposed for purely political reasons.
• The length or conditions of detention are out of proportion to the offence.
• He or she is detained in a discriminatory manner as compared to other persons.
• The detention is the result of judicial proceedings that are clearly unfair and connected with the political motives of authorities.

So, who will decide who is a political prisoner? This is important as, most often, international rights organizations and intergovernmental bodies like the International Red Cross, the United Nations, and the European Union will accept recommendations by trusted local rights groups operating in the country of interest as to who constitutes a political prisoner.

It is imperative that all of us who care about the future of Indian democracy campaign for a definition of a political prisoner and build our data on political prisoners irrespective of whether we agree or disagree with their views.

This is a task as urgent under the present government as it will be under the next. The issue of political prisoners is central for building any inclusive, democratic movement for justice and equity in a country where the fundamental rights guaranteed to citizens have no meaning for a vast majority of citizens. And in that campaign the demand for the release of political prisoners will have to be the central demand, not only on humanitarian grounds but on the grounds of political justice and constitutional guarantees.

Nandita Haksar is a noted lawyer and human rights activist