Siddique Kappan, Umar Khalid vs the Punitive Fetish of the State

Even as they medically suffer, the state continues to resist the release of Siddiqui Kappan and Umar Khalid.

Umar Khalid and Siddique Kappan

Photo: The Quint

On 25 April, a former student of Jawaharlal Nehru University and rights activist Umar Khalid tested positive for COVID-19. Unlike around 25,000 people who tested positive that day, Khalid’s infection is “directly attributable” to no one but the negligence of the Delhi government.

When he tested positive for COVID-19, Khalid was in judicial custody. He was kept in a congested barrack of an overcrowded Tihar prison as a pre-trial prisoner. By virtue of his custody, his good health was the direct responsibility of the state government under Article 21 of the Constitution and Delhi Prison Rules.

Khalid is not a standalone victim of the state’s “punitive fetish”. In Uttar Pradesh, journalist Siddiqque Kappan also contracted the deadly virus while in judicial custody as a pre-trial prisoner in Mathura jail.

Kappan’s role in the state’s “theatre of punishment” didn’t end there. The next ‘Act’ was played out in Mathura’s KM Hospital where he was taken for his COVID treatment. Kappan’s wife, Raihanth, wrote a letter to the Chief Justice of India narrating how her husband is “chained like an animal to a cot” and “has not been able to go to toilet for four days”.

The Theatre of Punishment

Kappan was among the 50 inmates who tested positive for COVID-19 in Mathura Jail. Khalid is languishing in Tihar prison that is currently operating with 180% occupancy, with limited resources for sanitation and having 70% of its population still awaiting the conclusion or the commencement of their trial.

Unlike state governments, prison authorities are not releasing periodical updates of COVID-19 cases in their jail complexes. While the people outside prison have been reduced to a statistic, those inside prison are completely anonymised. While the second wave has breached the prison walls, the suffering of those behind bars remains unreported; their stories, untold, and faceless.

No gavel has hit the surface to demand decongestion of prisons during the deadly second wave. No High Powered Committee has been awakened from its slumber to demand the interim release of prisoners. On the contrary, we continue to “stuff” our prisons. Emphasis on the words “we” and “us” because it is our lack of engagement with penal policymaking, our blind eye towards who and how the state incarcerates, that scripts the theatre of punishment.

Prisons have been invisibilised, deliberately kept away from the public eye. Every policy to govern prisons works towards dismantling transparency and democratic accountability. It projects the prisoner as an “other”, as an “inhumane vessel”, deserving of all the deprivation and sub-human treatment that he receives.

The othering of the prison and the opacity of the penal system makes prisons a perfect stage for the state’s theatre of the punishment. It is in prisons that the state can punish with impunity, not just by assaulting the body, but also by torturing the soul.

It is in prisons that “political punishment” finds its playground. A kind of punishment that is derived not from proven guilt, but from the process that characterises India’s criminal justice system. Process, which itself is punishment.

The Characters of the Punitive Theatre

Cultural Theorist Philip Smith said that punishment often becomes an object of “fascination, fetish, amusement, and dread”.

“Closed off from the public interest, punishment is always the locus of intense narrative... fanning the flames of scandal and celebration alike.”

Philip Smith

As the deadly surge of the pandemic engulfs the city, and the country, punishment continues to remain a “fetish” and a “spectacle”, both inside and outside the prison. Inside the prison, the penal fetish is exercised by denying basic facilities and humane treatment. Many UAPA accused currently languishing in Tihar prison have complained about inhumane treatment.

Khalid Saifi’s wife, Nargis, told The Quint that her husband called her from inside the jail to inform her that despite having high fever, throat infection, weakness, and headache, the authorities are denying him a COVID test. Khalid Saifi’s fear and suffering becomes aggravated by the fact that he’s diebetic, making him even more vulnerable to coronavirus.

Khalid went to the jail OPD for help but the OPD staff did not let him inside. They said ‘whatever problem you have, we will send the medicine to you directly’. He asked them to at least check his health and see if he was suffering from COVID or something else. They told him that they did not have any such test and would treat him with medicines for flu, fever. So, firstly they do not have any facilities to test people and secondly, they do not have any medication? The man at the OPD also told him: ‘If we tested today, more than 50 percent of the inmates would be COVID positive.’

Nargis Saifi

Siddique Kappan was subjected to a similar spectacle of punishment in Mathura jail. Prison authorities had neglected Kappan’s deteriorating health and apparent symptoms for long. As per his lawyer Wills Mathew, it was only when he collapsed in the jail bathroom due to weakness, that Kappan was finally taken to a hospital.

The Kerala Journalists Union had moved a habeas corpus petition before the Supreme Court just 24 hours after his arrest in October 2020. However, it took the apex court six months to finally hear the petition. And when it did, it adjourned the matter till 28 April.

Pandemic Surges, so Does the Punitive Fetish

On 23 April, a Delhi Court dismissed a plea moved by the Delhi Police, which had sought permission to produce Umar Khalid and Khalid Saifi “handcuffed in both hands from back side” by the virtue of them being “high-risk prisoners”.

The court dismissed the said petition by noting that the Delhi Police’s application was “completely bereft of reason”.

On the same day of getting its application dismissed, the Delhi Police moved an “urgent application” before the Supreme Court requesting relaxation of the rule that prohibits handcuffing of arrested persons and undertrial prisoners.

The Delhi Police in its wisdom argued that the rule prohibiting handcuffing shall be relaxed, as holding hands would make escorting police officers vulnerable to COVID-19 infection.

“It will be unsafe to hold the prisoner/accused by hand in close proximity. Even if the police personnel wears gloves, it will not give sufficient grip to hold the prisoner. If they are handcuffed, police personnel escorting them (prisoners) can hold them from a distance, thereby ensuring social distancing.”

Delhi Police

It is fascinating how the discourse on criminal justice during a pandemic is completely subverted by this “urgent plea”. Instead of exploring options to reduce physical court appearances, continued arrests and incarceration in overcrowded prisons, the “system” considers handcuffing as the only solution worth bringing to the Supreme Court's notice, in its effort to curb the spread of the deadly virus.

Pandemic is an excuse for the police to create a “spectacle out of the punishment”. The idea is to imprint an image in the public conscience, communicate a message, of how those who dissent or raise their voice against the government, will be treated.

The new COVID-19 variant is airborne, therefore “not holding hands” will not prevent it from spreading. It is hard to believe this common knowledge escapes the Delhi Police. Unfortunately, the “social distancing” they desire, is the one between the accused and the principles of a fair trial.

The desire to handcuff prominent activists jailed for dissenting, even when the law prohibits it, exposes the pinnacle of the state’s punitive fetish; one that even a pandemic could not contain. They have reimagined production before the court, as parading before the public eye. Let there be no doubts on who wields the power.