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Despite being mentally unsound, Jai Parkash languished in a jail in Jammu due to lack of sufficient follow-up of his case by the judiciary, police and prison authorities

Jammu, Jammu and Kashmir: Jai Parkash (49) spent 22 years at Amphalla\ndistrict jail in Jammu without trial, despite being suspected to be of “unsound mind” in\nthe police reports submitted in the city court in 2001. His prolonged detention might have\ncontinued indefinitely, had it not been for his inclusion in the list of\nundertrials granted special remission\nduring the Azadi ka Amrit Mahotsav, commemorating India’s 75th year of Independence.\n

By the time Parkash got back to his village\nKamalpur in Chandauli district of Uttar Pradesh in 2022, his mother, brother and sister had passed away, while his father was\nparalysed.

He was reported missing by his family in 2001. “They had filed a police complaint, but nobody\neven informed them that he was arrested,” said Sudama Jaiswal (34), Parkash’s cousin brother who takes care of\nhim now. \n

Hesitant to interact with the media, Jaiswal added, “The\nlast time his story was reported, I was harassed by the authorities for\nspeaking to the media. I am just helping them because it is unfair. Nobody\nshould have to go through what this family went through.”

Parkash was arrested on October 15, 2000, for\nallegedly violating Sections\n3 and 25 of the Arms Act, which lays down the\npunishment for possessing ammunition without a licence. As per the\nprosecution, Government Railway Police (GRP), Jammu, patrolling near flyover\nbridge at platform no 1 found him roaming\naround barefoot and recovered 34 live AK-47 bullets from him. The station house\nofficer of GRP Jammu filed an FIR in this regard.

As he had told his name differently throughout the\ninvestigation, the investigation officer of the case noted in the challan that\nthe accused seemed to be a lunatic and his medical check-up was needed for trial.\nAfter the probe, Parkash was sent to judicial custody. According to his lawyer Advocate Irfan Khan, he would have been sentenced to a minimum of three years to prison if proven guilty.

For most part of his detention, the authorities did\nnot even know his name. In the case file, he was described as a “person whose\nphotograph has been placed on the file, his name is not known”.

On January 3, 2001, the investigation officer filed\na chargesheet against him before the city judge, Jammu. While sending Parkash\nto judicial lockup after taking note of his mental condition, the court\ndirected the superintendent of Amphalla jail to obtain a medical report on his\ncondition from the chief medical officer of Jammu and submit it during the\ntrial court hearing.

As there was no one to furnish the Rs 30,000 surety\nbond to bail him out, he was confined to jail since then. Parkash was never taken\nfor trial proceedings.

In the trial court hearing on May 10, 2001, the\ncourt directed the jail superintendent to present the accused before the head\nof psychiatry department of the Government Medical College of Jammu for his treatment and directed submission of his recovery\nreport before the court. It said the file will be consigned to record till then.

About the phrase “consigned to record”, Advocate\nSheikh Shakeel, a criminal lawyer in Jammu and Kashmir, said it meant that the proceedings were\neffectively put on hold without resolution. “It was a lapse on the part of the public\ndefender, who failed to follow up on the case. The right to legal aid is\nenshrined in Article 39A of the Indian Constitution and it is meant to\nsafeguard against such cases where a person cannot hire a lawyer or is not\ncapable of deciding for themselves.”

The recovery report was not submitted till the time Parkash was in jail. After his release, the report was submitted in the court, thus leading to the re-opening of the case.

Parkash’s family remained clueless about his\nwhereabouts until August 20, 2022, when Uttar Pradesh Police informed his cousin brother that a message had come from Jammu Police that he is\nlodged in Jammu jail. This, when his Aadhaar card was made on December 9, 2014,\nwhere the accurate name, address and parent’s name was told by Parkash himself. The\ncard was sent to his home address by the Aadhaar department and was\nreceived by his father.

On Parkash providing correct details, lawyer Advocate Irfan Khan says \"his condition might have improved a bit from treatment or he became aware of who he was briefly.\"

Advocate Khan has filed a\nwrit petition in the Jammu & Kashmir and Ladakh High Court (HC) on August 25, 2022, seeking\ndismissal of the case and a compensation of Rs 50 lakh for illegal detention. It said the police arrested the petitioner in a false and frivolous case. It said the district jail superintendent made no communication with the trial court, did not share\nmedical reports and just provided food and shelter to the petitioner.

While considering the petition last year,\nthe HC observed a concerning lapse —the case file was “consigned to records” by the presiding magistrate, who failed to issue any subsequent directives or conduct the requisite inquiry into the matter. Despite the provisions for bail and the right to a speedy trial, Parkash’s case was marred by delays and a lack of legal aid.

Defining an unsound mind

The\nCode of Criminal Procedure, 1973, looks into the procedure for dealing with\naccused persons who are deemed to be of unsound mind during the trial process. “If\nthe accused is found to be of unsound mind and incapable of making their\ndefense, the court may postpone the proceedings until they are capable of\nunderstanding them. During this period, the court may release the accused on\nbail if sufficient security is provided for their care and to prevent them from\ncausing harm. If the court deems it inappropriate to release the accused on\nbail, or if sufficient security is not provided, the magistrate has the\nauthority to order the accused to be detained in safe custody.”

In this case, Parkash could have been released on bail, but there was nobody to pay the surety bond for him.

Dr Rajinder Kumar, lecturer, Government Psychiatric\nDiseases Hospital, Jammu, said if a previous record of the patient was available, it is analysed\nto assess if the patient was aware of the nature of the act while committing\nthe crime. “Lucid intervals refers to the moment of clarity or consciousness where a person is aware of the acts they are committing. A report of unsound mind presented\nbefore the court would mostly be in case of diagnosis of psychosis. Perhaps, schizophrenia\nor severe mental retardation.”

On\nthe parameters to assess an “unsound mind”, Dr Kumar said the assessment was\ndone through ward observation and psychological testing. The behaviour of the\npatient is observed in terms of their eating habits and interactions with\nothers to make an observation chart.

“Psychological testing includes both objective and subjective tests. Objective tests include ‘yes’ or ‘no’ questions. The type of questions presented to the\npatient depends on the inference from the observation chart as to what kind of\nmental illness the patient may have. Subjective test includes showing\npictures to the patient and recording their response. It allows them to\nexpress their thoughts and feelings. They are asked to write stories or draw an\nimage. Based on the input, we make an assessment whether the patient is\nactually suffering from psychosis, another mental illness or merely pretending,”\nhe detailed.

According to lawyer and policy analyst Noel\nTherattil, McNaughten test is a standard for assessing legal insanity in Indian law. “This principle is incorporated under Section 84 of the Indian\nPenal Code, which states that an act is not an offence if the person committing\nit, at the time of doing so, by reason of unsoundness of mind, is incapable of\nunderstanding the nature of the act, or that what they are doing is either\nwrong or contrary to law. The test has parameters for insanity, including defect\nof reason, lack of understanding and inability to distinguish right from\nwrong.”

“In case the\npatient is found to be of unsound mind, he would not be in a condition to\nundergo trial. Then the court would order us to treat the patient. The treatment\ndepends on the diagnosis. Often, the patient is admitted to the psychiatric hospital, but the\ntreatment can also continue while they are in jail. In that case, the jail\nauthorities continue monitoring their behaviour and make observation\ncharts. We do routine check-ups to see if there is any improvement in the patient's mental condition,” Dr Kumar explained.

Varnav Somwal, a lawyer and prison reforms expert, mentioned that every prisoner has to undergo a medical evaluation but not\nalways a psychiatric evaluation. “An accused might plead that they were of\n“unsound mind” while committing the crime and the court would order a\npsychiatric assessment in that case to determine whether it is true. Or if a\nprisoner is exhibiting symptoms, the same information may be presented before the\ncourt by his lawyer or jail authorities.”

Adv Shakeel said there are provisions that allow the court to free a mentally unstable undertrial. “Unlike in normal cases where a man can exit the jail on getting bail, in these cases, a relative or a\nfamily member of the undertrial has to come and sign a bond,” added Shakeel.

A 38-year-old jail superintendent from Jammu and\nKashmir with a keen interest in prison reforms opined that if a medical board\ndeclares someone mentally unsound, he/she can be exonerated. “When it comes to\nheinous crimes, the matter becomes tricky. There was one person who evidently had\nan “unsound mind”, but was accused of murdering three people. I brought this knowledge\nto the court authorities. However, the judge observed that if acute psychosis\nwas found in the assessment of the accused, they might not have to serve their\nsentence and as such could be just shifted to another jail.”

He claimed that mental illnesses were quite common\nin prisons. “Nearly 30 to 40% of patients suffer from some sort of illness;\ndepression and anxiety are quite common. But it depends on the resources that a\nprison has to whether or not bring psychologists to the prisons and offer counselling.”

This story was originally published as a part of Crime and Punishment project in collaboration with Vidhi Centre for Legal Policy.

Cover photo - Representative image/ AI-generated using Canva

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Though the Jammu and Kashmir government launched radio and TV programmes to reach students who can’t study online, the children are much too busy helping their families make ends meet.

Jammu: Rakesh*, a 10-year-old boy from Basawa village in Jammu and Kashmir, no longer knows when he would go back to school. The maximum temperature has hit 44°C but he stands on the Akhnoor-Sunderbani road in Jammu every day from 9 am to 5 pm to sell woven wicker baskets. Without a smartphone, a radio set or TV, Mukesh is unable to stay updated with classwork.

Vineet* (12) has a similar story. A Class 6 student in a government school, he sells homegrown vegetables by the roadside to aid his father, a daily-wager who has been unable to work during the lockdown.

During the lockdown imposed in Jammu and Kashmir due to the second wave of COVID-19, many children have become bread-earners for their families. Though restrictions have since been lifted, these children are still on the job, selling handicrafts, pens, vegetables, balloons and other objects. They earn between Rs 70 and Rs 700 a day, but even a two-figure wage has become essential to their families.

While the help these children provide to their families is out of the ambit of child labour laws, it does prevent them from exercising their Right to Education, an act extended to Jammu and Kashmir after the abrogation of the state's special status. The Child Labour (Prohibition and Regulation) Act, 1986, prohibits the employment of a child in any work including as domestic help, except when helping their own family in non-hazardous occupations.

“We have no option,” said Murtaza, father of 9-year-old Fatima* and a resident of Mandal Phallian village. If it were him selling pens instead of his daughter, he said, “the police would harass me. My family would go hungry.”

Ajay* (16) from Ghar Majur village aspires to be a teacher, but left his village two months ago and now sells fruits and vegetables on a roadside in Jammu city. “My parents don’t work. I live in a rented place and have to send money back home every week,” he said. Ajay is among the students who have been mass-promoted to Class 11. He does not know if the academic session has begun. Unaware of government programmes, he said he has not been informed of anything by school authorities.

The pandemic has only weakened the economically poor in India, with many of them now depending on government schemes for basic food supplies. For the children, it has reinforced the belief that education is only a luxury for the poor in India. “Mere paas phone, radio, kuch nahi hai (I neither have a phone nor a radio),” says Kabir*, a 7-year-old boy who sits on a footpath with a weighing machine and earns not more than Rs 70 a day. A student of a primary class in a government school, he has taken over the work his mother used to do in normal circumstances.

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Rakesh*, a 10-year-old boy from Basawa village, stands on the Akhnoor-Sunderbani road in Jammu every day from 9 am to 5 pm to sell woven wicker baskets (Picture courtesy: Pallavi Sareen)

The futility of the ‘all pass’

Ritha* (15) from Tanda village sits with her father all day selling flower pots of various shapes and sizes. Her father said she is good at school and would even tutor her younger brother, but she hasn’t been able to attend a single class since the pandemic began. “City kids have tuitions, so they are not bothered even if schools remain closed, but I cannot pay for extra coaching. Bina padhe pass ho rahey hain (they’re being promoted without studying),” her father said.

Rural parents are keenly aware that their children are progressing between classes without actually learning anything. “Padha likha anpad bana diya hai inko (they’ve been turned into educated illiterates),” said Rano Devi. Her daughter, Bhanu*, is now in Class 6 and has already surpassed her mother in education. But Bhanu is nowadays spending most of her time selling homemade pickles by the road. “We want to educate our children so they can become something and they can do better than us. But right now, they are not learning anything. Even if she passes Class 10 like this, will she be able to do anything? It’s better to learn a skill and earn a few pennies,” her mother added.

Vandita Sharma, a social activist working with Araadhna, an NGO that works for the education of underprivileged children, said families have different priorities at the moment. \"Earning sustenance right now outweighs the long-term chance of a child’s education helping them in overcoming poverty.”

Jammu and Kashmir school education department still paints a rosy picture. “Last year, more than four lakh students participated in online and community classes. So, alternatives to physical classes are working out,” said BK Singh, Principal Secretary of School Education.

“This year, we have special programmes to reach out to students in rural areas, such as radio programmes on All India Radio for Classes 1-8, special programmes on DD Gyaan for Class 9 and above, and programming on DD Kashmir for students in higher secondary classes,” he said.

He added, “Community classes are being run in Bandipora, Gurez and other far-flung areas for students who do not have access to gadgets.”

However, when asked about rural children who were dropping out of school because they were working to sustain their families, Singh said, “But why would they drop out when there are no exams and children are being mass-promoted?”

Children belonging to pastoral, nomadic Gujjar and Bakkarwal groups have another set of challenges. Since they migrate along with their families and cattle to higher reaches of Kashmir during summer, the children are dependent on mobile schools, which migrate with the tribes, but that has not been possible due to the lockdown. Mohammed* (13), a student of Class 8, walked along with his nomadic cluster to reach Kashmir from Doda. His father, Latif, wants him to become a doctor. But the current education setup has left him despondent. “Jahan hum ruktey hain, wahan phone nahi milta (Even making a phone call is not possible in the places we stay),” he said.

Online classes are next to impossible in the upper reaches where the tribal groups stay. \"The government was thinking of distributing tablets among them, but where would they charge the battery?” said Javaid Rahi, a tribal activist. \"Same goes for radios. You at least need to change batteries occasionally. Also, only 2-3 people in a cluster would have a radio. How would all the children study?” he added.

So simply distributing smartphones among students won’t solve the problem, Vandita pointed out. “What is needed is a collaborative effort between government and NGOs to help identify children from vulnerable families. If the needs of the family needs are met, these providers could go back to school again.”

*Names of all the minors have been changed to protect their identities

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In the lush green village of Kalihand, residents commemorate their deceased by planting trees, the fruits of which are meant for friends, neighbours and travellers.

Jammu: “When someone dies in our family, we plant a tree,” said Nath Ram (75), a resident of Kalihand village in Doda, a remote district in Jammu and Kashmir. Spread over 572 hectares, the village is located 25 km away from Doda town.

Surrounded by lush green trees and rugged mountain slopes, villagers in Kalihand have a unique culture of commemorating the dead by planting a fruit tree and watering it for at least a year or longer till it bears fruit. Nearly a third of the population in the village are Hindus who follow this tradition.

“Shastron mei likha hai” (it is written in the scriptures) and “punya ka kaam” (it is virtuous work) are two phrases repeated by the priest and locals alike while explaining the origins of this practice and its link to funerals.

Pandit Daya Ram, the village priest, referred to Garuda Puran (a Hindu religious text that speaks of heaven and hell, karma and rebirth and ancestral rites, among other things) to describe how this culture is deeply rooted in religious beliefs. Those who follow the Sanatan Dharma, the priest explained, believe that there is life even after death. And the deeds you do in your life, or those done in your name after your death, decide your path either leading you to heaven or hell.

“When someone rests under the shade of the tree or the fruit satiates someone’s hunger, it becomes punya ka kaam that would help in the salvation of the one who has died,” he said. “Planting a tree also ensures that the soul of the deceased would have shade to rest and fruit to eat,” he continued while adding that the tradition has been around for generations and has become part of the village's culture and identity.

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Kalihand village in Doda, Jammu and Kashmir (Picture credit: Pallavi Sareen)

“There is a shared understanding among the villagers about what a funeral entails. For economically weaker families, the villagers who come to mourn the deceased contribute financially in order to offer support and sympathy to the bereaved,” said Babu Ram Sharma (45) [pictured on top] who planted apple trees in his backyard in honour of his deceased family members.

The actions lead to afforestation on a community level, with apple, saadiyan (wild apricot), and pear trees surrounding the hamlet. “The tree can be planted in a field, on one’s own land or anywhere nearby since one needs to water it daily. Forests are not safe because of the wild animals,” said Sunil Kumar, the Naib Sarpanch of Kalihand. The backyards of homes are filled with trees, a bittersweet reminder of the many generations of bereavement the family has endured.

The tradition has evolved over the years with the inclusion of various types of trees, plants and shrubs but one thing that remains common is that the fruit born by the tree is freely available for everyone except the family members themselves, who are forbidden from picking the fruits.

“Grapevines and shrubs of aakhein (golden evergreen raspberry) are also planted but it is forbidden for the family to eat the fruit from such a tree or plant or profit from it. We have to give it away or any traveller can take the fruit if they desire,” Kumar said.

The practice, whether derived from mythology or passed through tradition, is not restricted to just this village anymore. It is being adapted in nearby villages and also in other regions in the union territory. Krishna Dev, a resident of Bhaderwah, Jammu said, “Planting of trees after the death of a family member is a recent phenomenon here, dating back nearly ten years.”

Across different countries, there are varied rituals connected with death and funerals that help soothe the grieving family. These rituals give a purpose to the actions and offer the solace of being connected to something greater. For residents of Kalihand, growing a tree and sharing its fruits with neighbours, travellers or those in need is a way for them to keep alive the memory of the deceased and offer them safe passage into the beyond.

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