Law's Temporality and The Construction of Death Worlds: Custodial Neglect of Older Prisoners in India

Jindal Global Law Review (2022) 13(2):307–327
https://doi.org/10.1007/s41020-022-00175-8
ARTICLE
Law’s temporality and the construction of death‑worlds:

Custodial neglect of older prisoners in India
Deblina Dey1
Accepted: 26 October 2022 / Published online: 6 December 2022

© The Author(s), under exclusive licence to O.P. Jindal Global University (JGU) 2022
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 cru-
cial 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 politi-
cal 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 com-
passionate treatment towards older prisoners, and to uphold their rights to healthcare
and to live with dignity.
Keywords Ageing · Carceral time · Prison · Disposability · Disability · Medical

care · Judiciary · COVID-19 pandemic
* Deblina Dey
[email protected]
1
OP Jindal Global University, Sonipat, India
13
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308 Jindal Global Law Review (2022) 13(2):307–327
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 institu-
tions 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 signifi-
cant 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 prison-
ers 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 Main-
tenance 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 pris-
oner 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 Cove-
nant 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 sen-
ior 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,
1
In India, a senior citizen is officially recognised as an individual above 60 years of age.
2
Eva Steiner, ‘Early Release for Seriously Ill and Elderly Prisoners: Should French Practice Be Fol-
lowed?’ (2003) 50(3) Journal of Community and Criminal Justice 270.
3
Tata Trusts, India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid (2019).
https://www.tatatrusts.org/upload/pdf/overall-report-single.pdf. Accessed 18 September 2022.
4
The Maintenance and Welfare of Parents and Senior Citizens Act 2007, Act No. 56 of 2007; ‘SC Asks
Centre to File Report on Old Age Homes, Relook at Schemes for Elderly’ (Indian Express, 14 December
2018). https://indianexpress.com/article/india/sc-asks-centre-to-file-report-on-old-age-homes-relook-at-
schemes-for-elderly-5492829/. Accessed 15 September 2022.
5
United Nations Office on Drugs and Crime, ‘The United Nations Standard Minimum Rules for the
Treatment of Prisoners (The Nelson Mandela Rules)’. https://www.unodc.org/documents/justice-and-
prison-reform/Nelson_Mandela_Rules-E-ebook.pdf. Accessed 18 September 2022.
6
Christophe Jaffrelot, ‘Arrests in Bhima Koregaon Case Frame a Transformation in India’s Polity and
Police Force’ (Indian Express, 29 October 2020). https://indianexpress.com/article/opinion/columns/
bhima-koregaon-case-stan-swamy-nia-chargesheet-naxals-6907744/. Accessed 02 April 2022. Also see
Somnath Waghmare, The Battle of Bhima Koregaon: An Unending Journey [documentary film]. https://
www.youtube.com/watch?v=il8Yz-ywuZA. Accessed 19 September 2022.
13
Jindal Global Law Review (2022) 13(2):307–327 309
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, activ-
ists, and organisations co-organise this event. In the convention held in 2017, vio-
lence broke out between Dalits and upper-caste Hindus, after which several human
rights activists were arrested. Accusations against them ranged from having Mao-
ist 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 fig-
ures, 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 pan-
demic. 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 impli-
cated 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, interna-
tional guidelines, government data like Prisons Statistics reports of the National
Crime Records Bureau (NCRB), Supreme Court and High Court orders mainly dur-
ing 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 con-
dition 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 dis-
posability, 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 crea-
tion of death-worlds for older political prisoners. I conclude by arguing that in a dem-
ocratic 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
13
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 desig-
nated 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
7
Harsh Jain, ‘Bail under the UAPA’ (Law and Other Things, 05 November 2021). https://lawandothe
rthings.com/2021/11/bail-under-the-uapa/. Accessed 12 May 2022.
8
It is not my intention to tar courts and prisons with the same brush with regard to the afflictions caused
by their actions to older prisoners. Judges in the past have upheld the rights of prisoners. For example, in
Sunil Batra v Delhi Administration and Ors (1978) 4 SCC 494 [52], the judges argued that the right to
equality (Article 14), the right to freedom (Article 19), and the right to life and liberty (Article 21) can
be limited for a prisoner but cannot be ‘puffed out altogether’.
Another example from recent times which shows the thoughtful approach of courts was in April 2022, dur-
ing the hearing of Gautam Navlakha’s plea for being moved from jail to house arrest. It became known that
Navlakha had not been provided a book written by PG Wodehouse that he wished to read. Taking a jibe at
the state’s prosecutor, the Bombay High Court judges reflected: ‘Is humor banished from jail?… Also, this is
quite less. Even a secondary school would have more books. If there aren’t enough of books, something can
be done by the bar or by the court. Because access to books is very important. It is an important step towards
reformation of prison inmates.’ See Sharmeen Hakim, ‘Is Humour Banished from Jail? Even Secondary
School Will Have More Books: Bombay High Court on Scanty Book Collection in Prison Library’ (Live-
Law.in, 05 April 2022). https://www.livelaw.in/news-updates/bombay-high-court-even-secondary-school-
more-books-taloja-prison-librar-gautam-navlakha-195886?infinitescroll=1. Accessed 10 May 2022.
This was not the first instance where courts have upheld the reading and writing rights of prisoners. Kaur
discusses salient judgments where the courts have highlighted the importance of critical pieces written by
prisoners as key to ushering in prison reforms. See Baljeet Kaur, ‘Prisoners’ Right to Write: Why SC Rulings
Should Be Taken Seriously by Prison Authorities’ (2019) 54(30) Economic and Political Weekly Engage.
9
The move to decongest prisons is not specific to the pandemic. Owing to the huge numbers of undertrial
prisoners, efforts have been made by the state to decongest prisons, for example, by setting up fast-track
courts and digitisation of court records. See Vijay Raghavan, ‘Undertrial Prisoners in India: Long Wait
for Justice’ (2016) LI (4) Economic and Political Weekly 17. Yet the total number of undertrial prisoners
has only risen over the years. The Prison Statistics India report informs us that the number increased from
67.6 per cent in 2013 to 76.12 per cent in December 2020. See more at NCRB, Prison Statistics India
2020. https://ncrb.gov.in/sites/default/files/PSI_2020_as_on_27-12-2021_0.pdf. Accessed 05 May 2022.
13
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 connec-
tion 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 scien-
tific 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.
10
The ambience inside prisons is conducive to producing mental health issues among the inmates. The
National Human Rights Commission (NHRC) in its 2014 report lists the following as reasons that induce
suicidal tendencies among inmates: ‘fear of the unknown, distrust of the authoritarian environment, lack
of apparent control over the future, isolation from family and significant others, shame of incarcera-
tion and the dehumanizing aspects of incarceration’. NHRC, Suicide in Prison: Prevention Strategy and
Implication from Human Rights and Legal Points of View (10 December 2014). https://nhrc.nic.in/sites/
default/files/SUICIDE%20IN%20PRISON%202014.pdf. Accessed 01 November 2021.
On a slightly different but related note, Vikram Patel (Professor of Global Heath, Harvard Medical
School) stresses the need for humanising the criminal legal system from a mental health perspective.
Quoting the results from the Deathworthy report published in 2021 by Project 39A anchored at National
Law University, Delhi, Patel highlights the futility of a legal system which addresses only the crime/harm
done but overlooks causal factors such as a history of deprivation of several kinds and also the oppressive
conditions of life inside prison and depressive states of mind of criminals while awaiting death. Vikram
Patel, ‘Why the Link between Mental Health and Death Penalty Deserves Greater Attention’ (Indian
Express, 27 November 2021). https://indianexpress.com/article/opinion/columns/link-mental-health-
death-penalty-deserves-more-attention-7641723/. Accessed 15 September 2022. See also National Law
University, Delhi, Deathworthy: A Mental Health Perspective of the Death Penalty, Project 39A (2021).
https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/616fd7988256c93ab9735618/16347
19720928/Deathworthy_MainReport_19Oct_2021.pdf. Accessed 02 December 2021.
11
‘350 Inmates in Six Rooms: Activist Gautam Navlakha Kept in Deplorable Conditions, Says Partner’
(Scroll.in, 22 June 2020). https://scroll.in/latest/965327/350-inmates-in-six-rooms-no-fresh-air-activist-
gautam-navlakha-details-temporary-jail-condition. Accessed 15 September 2021.
12
Pratiksha Baxi and Navsharan Singh, ‘Gendering the Pandemic in the Prison’ (India Forum, 09 July
2020). https://www.theindiaforum.in/article/gendering-pandemic-prison. Accessed 05 December 2021;
Yashraj Sharma, ‘India’s Political Prisoners in Bad Health, Lose Family amid COVID’ (Al Jazeera, 14
May 2021). https://www.aljazeera.com/news/2021/5/14/indias-political-prisoners-encounter-deaths-as-
covid-rages. Accessed 15 September 2022.
13
Hartman de Souza, ‘Riffs of an Ageing Urban Naxal’ (Raiot, 16 September 2018). https://raiot.in/
urban-naxals-surely-know-how-to-love/. Accessed 09 December 2021. Hartman de Souza calls the
arrested activists ‘ageing Urban Naxals’ and mocks the rampant usage of the term by an anxious state.
13
In March 2020, the Supreme Court of India issued directives to the state govern-
ments to decongest the prisons.14 It asked states to constitute high-powered com-
mittees 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 plot-
ting terrorist activities against the state were not to be granted bail despite their fam-
ilies 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 pre-
mature 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 dis-
eases 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.
14
In Re: Contagion of COVID 19 Virus in Prisons, Suo Motu Writ Petition (C) No. 1/2020 dt 08 May
2021.
15
Ibid.
16
According to Mihir Desai, a senior advocate, anti-terror laws such as UAPA are those that ‘allow the
state to carve out exception for its own lawlessness’. It is a paradox wherein the state’s adherence to the
rule of law is embedded in the violation of the rule of law through such legislations. In other words, these
anti-terror laws restrain constitutional freedoms, equality, and the right to life. Through these laws, the
state reserves exceptional power over its citizens. ‘Advocate Mihir Desai –– The Problem of Preventive
Detention in India’ (KG Kannabiran Lectures, 23 November 2020). https://www.youtube.com/watch?v=
30wFBnZWEQY. Accessed 12 May 2022.
17
Umer Maqbool, ‘Kashmir: Elderly, Ailing People Detained under Public Safety Act Don’t Get Proper
Medical Care’ (Wire, 11 May 2021). https://thewire.in/health/public-safety-act-kashmir-detention-healt
hcare. Accessed 06 December 2021.
18
V Venkatesan, ‘COVID-19 in Prisons: SC Intervention Must Ensure the Centre Exercises Its Respon-
sibility’ (Wire, 09 May 2021). https://thewire.in/law/covid-19-in-prisons-sc-intervention-must-ensure-
the-centre-exercises-its-responsibility. Accessed 13 November 2021.
19
Ibid.
chargesheet had been filed by the police by then or not. However, the person must file an application
within a specific time to be eligible for default bail. While Bharadwaj was able to file the application in
time, the others were not. Also see Advait Tamhankar, ‘Default Bail: An Explainer’ (Leaflet, 23 February
2022). https://theleaflet.in/default-bail-an-explainer/. Accessed 15 September 2022.
13
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 possi-
ble 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 unpremed-
itatedly. 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 dis-
carded. Throughout history, certain social groups have been classified as expend-
able, systematically excommunicated (foreigners and those from another ethnona-
tionality 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 exper-
imentations,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
20
Default bail is a safeguard guaranteed to an arrested person under Section 167 of the Code of Crimi-
nal Procedure 1973, according to which the person can be granted bail after a maximum of 180 days
from the time of appearance before a magistrate. The bail can be granted irrespective of whether the
21
Zygmunt Bauman, Wasted Lives: Modernity and Its Outcasts (Polity Press 2004) 117–118. Bauman is
talking about certain categories of human beings, e.g., refugees, as ‘outcasts’ or ‘wasted lives’ produced
by modernity.
22
Lois Wacquant, ‘Suitable Enemies: Foreigners and Immigrants in the Prisons of Europe’ (1999) 1(2)
Punishment & Society 215.
23
Georgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press 1998)
154.
24
Anthony Downey, ‘Zones of Indistinction: Giorgio Agamben’s “Bare Life” and the Politics of Aes-
thetics’ (2009) 23(2) Third Text 109.
25
Bishnupriya Ghosh, ‘The Refugee Within: Becoming Disposable in Modern India’ (2020) 29–30 The
Large Glass: Journal of Contemporary Art, Culture and Theory 104.
13
view to consolidating a Hindu nation by excluding more Muslims. Migrant labour-

ers (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 starva-
tion beg the question, ‘When means are strained, who becomes dispensable?’26 Fur-
ther, 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 vio-
lence 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 mar-
ginalised communities in India. They were arrested for opposing the state’s neolib-
eral agendas. This antipathy towards ‘dissenters’, however, is not a new phenom-
enon. 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 med-
ical 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
26
Ibid. 105.
27
Akhil Gupta, ‘On Structural Violence’ in Kalpana Kannabiran (ed), Violence Studies: Oxford India
Studies in Contemporary Societies (Oxford University Press 2016) 350.
28
D Asher Ghertner, ‘The Nuisance of Slums: Environmental Law and the Production of Slum Illegality
in India’ in Jonathan Shapiro Anjaria and Colin McFarlane (eds), Urban Navigations: Politics, Space and
the City in South Asia (Routledge 2011) 23; Usha Ramanathan, ‘Illegality and the Urban Poor’ (2006)
41(29) Economic and Political Weekly 3193; Jean Drèze, Sense and Solidarity: Jholawala Economics for
Everyone (Permanent Black 2017).
29
Raminder Kaur, ‘Nuclear Necropower: The Engineering of Death Conditions around a Nuclear Power
Plant in South India’ (2021) 85 Political Geography.
30
Ujjwal Kumar Singh, Political Prisoners in India (Oxford University Press 1998) 209.
31
Shiv Visvanathan, ‘In the Name of Terror’ in Chandan Gowda (ed), Theatres of Democracy (Harper-
Collins 2016) 14.
32
Ibid.
13
health crisis of the COVID-19 pandemic. Such acts of non-care reveal the oppres-
sive side of the legal system that jeopardises the safety and dignity of older prison-
ers 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 poli-
cies,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 ‘seri-
ous 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 fundamen-
tally 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 dis-
appearances’ 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 deter-
mines time by performing the law in the form of legal excesses. However, the wom-
enfolk 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 poli-
tics 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
33
In Re: Contagion of COVID 19 Virus in Prisons (n 14).
34
‘Modi’s Made India Communal & Authoritarian; Courts Caving-In; India May Fracture: Pratap
Bhanu Mehta’ (Wire, 17 December 2021). https://www.youtube.com/watch?v=PcWYmM_7rw8.
Accessed 08 May 2022.
35
Renissa Mawani, ‘Law as Temporality: Colonial Politics and Indian Settlers’ (2014) 4(65) UC Irvine
Law Review 71.
36
Ibid.
37
Due to heavy militarisation, Kashmir has been compared to an everyday prison. See Haley Duschin-
ski, ‘Destiny Effects: Militarization, State Power, and Punitive Containment in Kashmir Valley’ (2009)
82(3) Anthropological Quarterly 691.
38
Ather Zia, Resisting Disappearance: Military Occupation and Women’s Activism in Kashmir (Univer-
sity of Washington Press 2019) 31.
13
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 estab-
lished 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 necropo-
litics 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
39
Mawani, ‘Law as Temporality’ (n 35) 73.
40
Zia, Resisting Disappearance (n 38) 36.
41
Ibid. 35.
42
‘AILAJ Webinar: Conditions of Prisoners in Indian Prisons by Adv Sudha Bharadwaj’ (AILAJ HQ,
26 March 2022). https://www.youtube.com/watch?v=a5CSeFJgKyU. Accessed 11 May 2022.
43
Ethnographic studies have revealed how prisoners have managed to engage in reversing the discipli-
nary gaze. For example, in a study among female prisoners in North Ireland, Azrini Wahidin records
how one respondent speaks about her ‘bravado’ in stripping fully when asked to strip parts of the body
in turn. Fully stripping during strip searches by prison authorities was a technique to ‘control’ the dis-
ciplinary gaze by embarrassing the authorities who had come to strip the prisoners’ dignity. See Azrini
Wahidin, ‘Reconfiguring Older Bodies in the Prison Time Machine’ (2002) 7(3) Journal of Aging and
Identity 177.
44
Sadaf Modak, ‘Sudha Bharadwaj: “When Inside, You See How Cut Off a Prisoner Is from Legal
Remedies”’ (Indian Express, 21 January 2022). https://indianexpress.com/article/cities/mumbai/sudha-
bharadwaj-when-inside-you-see-how-cut-off-a-prisoner-is-from-legal-remedies-7734345/. Accessed 30
May 2022.
45
‘Jailed to Die? India’s Incarcerated Human Rights Defenders and the Covid Emergency’ (InSAF
India, 21 June 2021). https://www.youtube.com/watch?v=wBDl0ay253g&t=2319s. Accessed 01 April
2022.
13
‘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 necropoliti-
cal 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 com-

munities in India, particularly the tribal population in Jharkhand, by political and
corporate elites and was viewed suspiciously by the state. He was accused of ter-
rorist 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 pan-
demic, 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 sip-
per marks the most poignant scene of non-care and neglect of an older individual in
46
Achille Mbembe, Necropolitics (Steven Corcoran tr, Duke University Press 2019) 92.
47
Austin Sarat, ‘Speaking of Death: Narrative Violence in Capital Trials’ in Austin Sarat and Thomas R
Kearns (eds), The Rhetoric of Law (University of Michigan Press 1996) 136.
48
Marianne Constable, ‘The Silence of the Law: Justice in Cover’s “Field of Pain and Death”’ in Austin
Sarat (ed), Law, Violence and the Possibility of Justice (Princeton University Press 2001) 85, 93.
49
Harsh Mander, ‘The Song of a Caged Bird: A Tribute to Fr Stan Swamy’ (Scroll.in, 07 July 2021).
https://scroll.in/article/999486/the-song-of-a-caged-bird-a-tribute-to-fr-stan-swamy. Accessed 01 Sep-
tember 2021.
50
Arvind Narrain observes that the NIA is a chosen policy instrument of the state as through it the
state can exercise unbridled control over citizens, especially the critics of the state. See Arvind Narrain,
India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance (Context 2022).
13
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 gerontolo-
gists 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 diffi-
cult. 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 expe-
riences 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,
51
‘No Sipper for Stan Swamy: Justice or Cruelty?’ (We the People, NDTV, 29 November 2020). https://
www.youtube.com/watch?v=lkwm4Uk3eKA. Accessed 15 September 2021.
52
Sharmeen Hakim, ‘“I Would Rather Suffer, Possibly Die Very Shortly If This Were to Go On”: Stan
Swamy Pleads for Interim Bail in Bombay HC’ (LiveLaw.in, 21 May 2021). https://www.livelaw.in/top-
stories/stan-swamy-interacts-with-bombay-hc-for-interim-bail-bhima-koregaon-case-174477. Accessed
15 October 2021.
53
Ibid.
54
‘Stan Swamy Passes Away after Contracting COVID-19 in Jail, Lawyer Demands Judicial Inquiry’
(Wire, 05 July 2021). https://thewire.in/rights/stan-swamy-death-covid-19-judicial-inquiry. Accessed 16
September 2022.
13
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 coun-
tries.56 This model acknowledges the co-existence of multiple ailments among older
persons and aims to provide patient-centred care wherein decisions about health-
care 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 interna-
tional 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
55
Brie Williams, Cyrus Ahalt, and Robert Greifinger, ‘The Older Prisoner and Complex Chronic Medi-
cal Care’ in Stefan Enggist, Lars Møller, Gauden Galea, et al. (eds), Prisons and Health (World Health
Organization 2014) 165. https://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-
Health.pdf. Accessed 20 November 2021.
56
Ibid. The World Health Organization and the United Nations Office on Drugs and Crime recognise the
state’s duty to care for prisoners who are dependent on the state.
57
United Nations, ‘Basic Principles for the Treatment of Prisoners’, no. 9. https://www.ohchr.org/
Documents/ProfessionalInterest/basicprinciples.pdf. Accessed 20 November 2021.
58
Varavara Rao, ‘The Other Day’. https://www.poetryinternational.com/en/poets-poems/poems/poem/
103-15352_THE-OTHER-DAY. Accessed 01 May 2022.
13
to the hospital and discharged without proper communication with his family mem-
bers, 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, usu-
ally 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 contin-
ued 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 atten-
tion for him, especially the need for a neurologist and a urologist that had been dis-
regarded 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 govern-
mental 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 inter-
acting 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,
59
Megha Katheria, ‘Why Did Varavara Rao Petition Courts for Access to Basic Healthcare in Prison?’
(Leaflet, 19 November 2020). https://www.theleaflet.in/why-did-varavara-rao-petition-courts-for-access-
to-basic-healthcare-in-prison/. Accessed 30 November 2021.
60
Ibid.
61
Ibid.
62
‘“He Is Almost on Deathbed”: Bombay HC Issues Order to Move Varavara Rao to Nanavati Hospi-
tal’ (Scroll.in, 18 November 2020). https://scroll.in/latest/978826/varavara-rao-to-be-moved-to-nanavati-
hospital-for-15-days-orders-bombay-hc. Accessed 17 September 2022.
63
As a sociologist, I am wary of the objective usage of the term ‘dementia’, which has been shown to
have different socio-cultural meanings and implications for interpersonal behaviour. The term ‘dementia’
was replaced with ‘major neurocognitive disorder’ by the American Psychiatric Association in 2013. See
Bianca R Brijnath, ‘The Legislative and Political Contexts Surrounding Dementia Care in India’ (2008)
28 Ageing & Society 913.
64
Sharmeen Hakim, ‘“When You Are Selectively Charging People, You Are Undermining Rule of
Law”: Jaising in Varavara Rao’s Bail Plea’ (LiveLaw.in, 22 January 2021). https://www.livelaw.in/news-
updates/when-you-are-selectively-charging-people-you-are-undermining-rule-of-law-jaising-in-varavara-
raos-bail-plea-168732. Accessed 12 September 2021.
13
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 per-
sist 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 impos-
sible; 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 allega-
tion 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 over-
riding 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 crimi-
nal justice system based on gerontological knowledge about care needs in late life.
65
Ibid.
66
Ibid.
67
Dr PV Varavara Rao v NIA and Ors, Criminal Appeal No. 52/2020 (Bombay HC, Judgment dt 22
February 2021).
68
Vakasha Sachdev, ‘When Can an Accused in Jail Get Medical Bail? Is It Possible in UAPA Cases?’
(Quint, 13 October 2021). https://www.thequint.com/news/law/when-can-an-accused-get-medical-bail-
from-courts-uapa-bhima-koregaon#read-more. Accessed 30 October 2021.
69
Section 437 of the Indian Code of Criminal Procedure 1973, regarding ‘when bail may be taken in
case of non-bailable offence’, contains the following clauses which are relevant here: ‘When any person
accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without
warrant by an officer in charge of a police station or appears or is brought before a Court other than
the High Court or Court of Session, he may be released on bail, but … (ii) such person shall not be
so released if such offence is a cognizable offence and he had been previously convicted of an offence
punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a non-bailable and cognizable offence: Provided that
the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person
is under the age of sixteen years or is a woman or is sick or infirm.’
13
6 Prison roles, social roles, and the time lag between
The violence of law threatens to expose the façade of law’s dispassionate rea-
son, 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 expe-
rienced 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 tuber-
culosis, 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 liv-
ing 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 incar-
ceration 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
70
Sarat, ‘Speaking of Death’ (n 47) 181.
71
Chitrangada Choudhury, ‘The Sudha Bharadwaj the Govt Doesn’t Want You to Know’ (Article14,
28 August 2020). https://www.article-14.com/post/the-sudha-bharadwaj-the-govt-doesn-t-want-you-to-
know. Accessed 20 September 2021.
72
Vidya, ‘Elgar Parishad Case: Bombay HC Asks Govt to Submit Sudha Bharadwaj’s Medical Reports’
(India Today, 14 May 2021). https://www.indiatoday.in/cities/mumbai/story/elgar-parishad-case-bombay-
hc-asks-govt-to-submit-sudha-bharadwaj-medical-reports-1802392-2021-05-14. Accessed 19 November
2021.
73
Astha Savyasachi, ‘“The State Has Left My Mother to Die,” Says Sudha Bharadwaj’s Daughter’
(Outlook, 25 July 2021). https://www.outlookindia.com/website/story/india-news-the-state-has-left-my-
mother-to-die-says-sudha-bharadwajs-daughter/389317. Accessed 08 December 2021.
13
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 mak-
ing the conditions more challenging.’74 Lokaneeta alerts us to the rampant and dis-
cretionary 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 Accord-
ing to the life course perspective, time and temporality are crucial determining fac-
tors 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 expe-
riences 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 con-
tact his family members for a few days. Husain remarked that it was an ‘unbeliev-
able’ 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
74
Jinee Lokaneeta, ‘How the “Anda Cell” Is Used to Discipline Prison Inmates’ (Indian Express, 29
October 2021). https://indianexpress.com/article/opinion/columns/how-the-anda-cell-is-used-to-disci
pline-prison-inmates/. Accessed 01 November 2021.
75
Sahba Husain, ‘Keeping Hope, an Everyday Challenge: Imprisoned Human Rights Activist Gau-
tam Navlakha’s Partner’ (Wire, 23 January 2021). https://www.youtube.com/watch?v=18YKVC4z2jg.
Accessed 23 March 2021.
76
James A Holstein and Jaber F Gubrium, ‘Constructionist Perspectives on the Life Course’ (2007) 1(1)
Sociology Compass 335.
77
Vern L Bengtson, Glen H Elder, and Norella M Putney, ‘The Lifecourse Perspective on Ageing:
Linked Lives, Timing, and History’ in Malcolm L Johnson (ed), The Cambridge Handbook of Age and
Ageing (Cambridge University Press 2005).
78
Azrini Wahidin and Jason L Powell, ‘The Loss of Aging Identity: Social Theory, Old Age, and the
Power of Special Hospitals’ (2001) 6(1) Journal of Aging and Identity 42.
13
prison reaffirms the lack of autonomy and choice of how the disciplinary and medi-
cal 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, how-
ever, 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 institu-
tions 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 unilat-
eral 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 Eth-
nographic studies have also highlighted that prisons continue to be spaces of nego-
tiations 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,
79
Ibid.
80
Kanchan Chaudhari, ‘Bombay HC Pulls Up Jail Officials for Denying Eyeglasses to Gautam Nav-
lakha’ (Hindustan Times, 09 December 2020). https://www.hindustantimes.com/mumbai-news/bombay-
hc-pulls-up-jail-officials-for-denying-eyeglasses-to-gautam-navlakha/story-pkcVDCqcw7k7QHyPpt3clL.
html. Accessed 04 December 2021.
81
Judith Butler, Precarious Lives: The Powers of Mourning and Violence (Verso 2004) 56.
82
Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia (SAGE 2013). In
chapter 9 of this book, the author discusses cases of custodial torture inflicted on various kinds of people,
such as political prisoners like SAR Geelani, a shop owner, sexual minorities, and a Bangladeshi refugee,
to list a few.
83
Mahuya Bandopadhyay, ‘Reform and Everyday Practice: Some Issues of Prison Governance’ (2007)
41(3) Contributions to Indian Sociology 387.
84
Bauman, Wasted Lives (n 21).
13
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 consti-
tutional 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 treat-
ment 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 dig-
nity 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 ref-
ormation 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, vio-
lence that is unleashed by the legal machinery, the judges being at its helm, is legiti-
mised in modern states. Sarat and Kearns further argue that ‘constitutional violence
… crushes and kills with a steadfastness equal to a violence undisciplined by legiti-
macy.’89 Though this is particularly argued in the case of capital sentences,90 I argue
85
Wahidin and Powell, ‘The Loss of Aging Identity’ (n 78) 44.
86
Pratiksha Baxi, ‘Delhi Court Granting Bail to Infant’s Mother Is a Welcome Change during the Pan-
demic’ (Indian Express, 21 April 2021). https://indianexpress.com/article/opinion/columns/bail-juris
prudence-womens-prisons-judiciary-7282034/. Accessed 02 December 2021.
87
Ibid.
88
Robert Cover, ‘Violence and the Word’ in Martha Minow, Michael Ryan, and Austin Sarat (eds), Nar-
rative, Violence, and the Law (University of Michigan Press 1995) 203.
89
Austin Sarat and Thomas R Kearns, ‘Introduction’ in Austin Sarat and Thomas R Kearns (eds), Law’s
Violence (University of Michigan Press 1995) 5.
90
Ibid. 4.
13
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 observa-
tion, that judges should take personal responsibility for their judgments, and that ‘[j]
udges and others should be held accountable for the painful impositions they author-
ise or condone, and that such personal accountability would ensure that law’s vio-
lence 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 incarcer-
ated individuals in the way they are denied access to basic amenities, including med-
ical 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 prison-
ers. 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 pris-
oners. 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
91
Ibid. 14 (citing Patricia M Wald).
92
Rajshree Chandra, ‘Bhima Koregaon Case: Trying without a Trial Is the Intent of Draconian UAPA
Law’ (Wire, 09 July 2021). https://thewire.in/rights/bhima-koregaon-case-trying-without-a-trial-is-the-
intent-of-draconian-uapa-law. Accessed 10 December 2021.
93
Kalpana Kannabiran, ‘Introduction’ in Kalpana Kannabiran (ed), Violence Studies: Oxford India Stud-
ies in Contemporary Society (Oxford University Press 2016) 43.
94
Mayur Suresh, ‘The Slow Erosion of Fundamental Rights: How Romila Thapar v Union of India
Highlights What Is Wrong with the UAPA’ (2019) Indian Law Review 212.
95
Ghosh, ‘The Refugee Within’ (n 25) 105.
13
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.
Acknowledgment I am deeply grateful to the Institute for Global Law & Policy (IGLP) based at the
Harvard Law School for the giving me the opportunity to present some of my ideas on ageing and incar-
ceration. The inputs that I received from Professor Lucie E. White (Harvard Law School), Dr. Zinaida
Miller (Seton Hall University) were particularly helpful. I also thank Dr. Nadia Lambek, Dr. Zeina Jallad
Charpentier, Dr. Sarbani Sharma, Dr. Sapna Raheem, Dr. Chung Nguyen and Sabeen for their critical and
detailed feedback on the paper. Professor Arun Sagar’s suggestions were also very useful as they helped
me refine some of my key arguments.
Declarations
Conflict of interest The author has no conflicts of interest to declare that are relevant to the contents of
this article.
Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps
and institutional affiliations.
Springer Nature or its licensor (e.g. a society or other partner) holds exclusive rights to this article under
a publishing agreement with the author(s) or other rightsholder(s); author self-archiving of the accepted
manuscript version of this article is solely governed by the terms of such publishing agreement and
applicable law.
13

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Jindal Global Law Review (2022) 13(2):307–327