JUDICIARY AND PLIGHT OF INDIAN PRISONERS IN COVID-19

1. INTRODUCTION

“Prison systems and the more than 11 million prisoners worldwide have been disproportionately affected by COVID-19. It’s estimated there are more than 527,000 prisoners who have become infected with the virus in 122 countries with more than 3,800 fatalities in 47 countries. With limited testing capacity in many jurisdictions and the rapidly evolving situation, the actual number may be much higher. It should also be recognized that due to their close and regular interaction with prisoners, prison officers, health-care professionals and others working in prisons, also face an enhanced risk of infection. Undoubtedly, prisons are high-risk environments for COVID-19 for those who live and work there.”[1] -UNODC

Overcrowded prisons, prolonged detention of under trial prisoners, substandard living condition and at times even inhuman behaviour by prison staff is something which Indian prisoners were facing everyday but with every passing day of COVID in last two years the plight of Indian prisoners grew exponentially. The pandemic led to severe curbs on rights of prisoners, particularly their communication with family and lawyers, access to courts, access to medical care, access to rehabilitation and vocational facilities. The article discusses laudable steps taken by authorities especially by courts to reduce spread of COVID and plight of prisoners followed by critically analysing those steps.

2. STEPS TAKEN BY JUDICIARY TO REDUCE SPREAD OF COVID-19 IN PRISON

The primary issue and an unfortunate reality for India is the fact that the prisons in the country are massively overburdened. In 2020, according to data provided by National Crimes Record Bureau the occupancy rate in Indian prisons was 118.0 % and in some prisons like Uttar Pradesh it has reached as high as 176.5%.[2] This would only lead to the direct contravention of social distancing which has become an obligation in current times. However, fortunately, this fact did not go unnoticed and a series of events unfolded between March 2020-April 2020.[3]

  • The first major decision was taken by the Supreme Court (here after referred as SC), when a bench including the Chief Justice S.A Bobde, took Suo moto cognisance of the matter of the spread of COVID-19 in the prisons of India[4]. The bench took into account the steps taken by the various states to prevent the spread of the virus in their prisons. Subsequently, a list of directives was issued to states and union territories (hereinafter referred as U.T).
    • “The first was the setting up of a high-powered committee (HPC) by each State and U.T. The committee would constitute of (1) Chairman of the state legal services committee, (2) Principal Secretary (Home/Prison) by whatever designation is known as, (3) Director General of Prison(s). The objective of the committee was to formulate a classification of prisoners who would be eligible for parole or interim bail for any period of time considered by the relevant authority to be apposite.”[5]Also, relevant authoritative texts were cited serving as a guiding light for the constituted committee.[6]
  • Interestingly, the court did not pause here. Certain other recommendations were made keeping in mind the state of things in prisons with respect to capacity, sanitation, available health care etc. The court directed the devising of response plans in consultation with medical experts. This was followed by other directives such as the prohibition of presenting undertrial prisoners in courts, the prohibition of standard transfer of prisoners amongst multiple reasons unless done with the intent of decongestion and the immediate transfer of a suspected COVID-19 case to a Nodal Medical Institution. Further, a monitoring team was to be instituted at prisons to ensure that the aforementioned directives are duly complied with.
  • On April 7 2020, the Supreme Court directed the states and U. Ts to ensure that the released prisoners get a secure transit to their homes amid the national lockdown. However, an alternative in form of a temporary state shelter is also to be provided to them until the situation alleviates.[7] In conformity with the HPCs’ guidelines, the courts released a total of 68,264 prisoners on interim bail across the country until 14 December 2020.[8]
  • However, with a relative ease in the spread of the virus in India, those who were released were compelled to return back to their respective prisons by February-March 2021.[9] But with the onset of the second wave of the pandemic, the cases again rose exponentially. This time also the Supreme Court again took cognizance of the situation and passed an order [Suo Motu Writ Petition(C) No.1/2021] dated 8th May 2021. In its order the court again directed same actions and also held that those inmates who were granted parole, pursuant to earlier orders, to be again granted a parole for a period of 90 days. In this petition the court also directed that the authorities need to be considerate to the concerns of the inmates who may not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus.[10]  
  • One of the other measures praiseworthy taken by government was provision of regular telephone services to the inmates to reach out to their families. This is crucial for their mental well-being. Prohibiting them from making contact with the outside world could lead to unrest and possibly riots

3. WHAT WENT WRONG

The National Campaign Against Torture (NCAT) in its report, The Status Of COVID-19 In Indian Prisons, stated that “Out of the 1,350 jails in India, COVID-19 infections have been reported from at least 351 jailsin 25 out of total 36 States/UTs of the country as of 31 August 2020. The maximum number of COVID-19 infections in prisons were reported from Uttar Pradesh (35 jails), followed by Madhya Pradesh (34), Maharashtra (32), Odisha (31), Andhra Pradesh (28), Rajasthan and Tamil Nadu (21 each), Assam (19), West Bengal (18), Punjab (17), Bihar (15), Delhi (14), Jharkhand (13), Karnataka (9), Haryana (8), Kerala (7), Gujarat and Chhattisgarh (6 each), Jammu & Kashmir and Uttarakhand (5 each), Telangana (3) and Andaman and Nicobar Islands, Goa, Puducherry and Tripura (1 each)[11].

The CHRI report titled – ‘State/UT Wise Prisons Response to COVID-19 Pandemic in India’ stated that as on October 2020, there were total of 18157 COVID-19 positive cases both for prison staff and inmates, and total of 17 deaths occurred in Indian prisons and between 1st March 2021 and 19th July 2021 there were total 5960 prisoners who contacted COVID-19 in second wave and total of 28 prisoners died during this time[12]. Both the prisons and courts did do a laudable job to minimise risk of COVID-19 in prisons and if it weren’t for this situation could have been worse. But we need to analyse that despite these steps taken there why were many cases and deaths and what really went wrong. Below are the few reasons that are responsible for spread of COVID-19 despite steps taken by government:

  • Categories identified by HPCs for release of prisoners were not prisoner-centric

“The criteria for the release of prisoners, adopted by the HPCs, were not prisoner-centric. The HPCs did not effectively distinguish between the different types of prisoner characteristics like old age, gender, disability, illness and comorbidities, particularly in terms of the risks COVID-19 posed to them as individuals. Despite the higher risk to their health, these prisoners were not released because they did not satisfy the requirements of the HPC guidelines. The criteria set out for awarding interim bail should consider, the overall holding capacity of prisons, as well as prisoner health-related vulnerabilities, comorbidities, disabilities, age-related ailments and other pressing concerns such as pregnancy.”[13]

“Apart from the HPCs, even the courts failed to consider the bail applications on medical grounds while deciding bail applications and ignored the daily risk of exposure to the deadly virus for persons in fragile health.”[14] For instance when 81-year-old poet-activist P Varavara Rao, charged under the Unlawful Activities (Prevention) Act, 1967, interim bail plea was rejected several times by both the Supreme court and the Bombay High court. He was kept in judicial custody for more than two years and also had serious medical conditions but both the Supreme court and High court rejected his plea.[15]

  • Categories of prisoners excluded from consideration by HPCs

“Prisoners arrested or convicted for offences under Narcotic Drugs and Psychotropic Substances Act, 1985Protection of Children from Sexual Offences Act, 2012Prevention of Corruption Act, 1988Prevention of Money Laundering Act, 2002; Unlawful Activities (Prevention) Act, 1967 and offences against women were excluded from eligibility as they might cause a severe threat to society’s law and order. And HPC of 13 states refused to give interim bail to foreign offenders regardless of their offence background.”[16]

Regarding the rights of the excluded categories of prisoners, the court observed that undertrial prisoners who are not identified by the HPCs for interim release can approach to competent courts for the grant of regular or interim bail, and their bail applications are to be decided on merits and in accordance with the law. But in practice, and contrary to the Supreme Court’s decision,[17] The HPCs’ classification of prisoners did influence the trial courts while deciding the interim bail applications of the prisoners. In many bail orders, and while dismissing the bail application, courts have noted that the applicant’s case is not covered under the guidelines laid down by HPCs.[18] In the case of National Alliance for People’s Movements v State of Maharashtra, the Supreme Court has failed to acknowledge that the trial courts are likely to be influenced by the decisions of HPCs. By relying upon the criteria of HPCs, courts denied the chance of a fair hearing to the excluded categories of prisoners. The courts should have decided their bail applications on merit, keeping in mind the responsibility of the State to safeguard the health of all prisoners. Hence, the HPCs unintentionally identified the legal boundaries of the scope of the right to health for prisoners seeking interim bail.

  • Challenge of Non-availability of courts due to pandemic

Due to pandemic judiciary system of India came to halt and only ‘extremely urgent matters’ were heard through e-hearings but there was ambiguity on what constituted an ‘urgent matter’ and about the courts’ functioning, especially district courts. The districts courts were only disposing of bail applications filed before lockdown. If any regular or interim bail on urgent grounds was required, then the only likely option available to the litigant was to approach the High Court. It is disheartening to see that the courts have not given bail matters the attention they deserve in uncertain times like these. The High Courts in several cases observed that bail applications could not be treated as an ‘urgent judicial matter’ at the time of a pandemic.[19] This unjust denial of bail, especially in this extraordinary time, is one of the grossest violations of the individual’s right to personal liberty.

Further even after courts went virtual extensively the undertrials had to face a few issues that arose in the virtual hearings such as confusion about the date and time of hearing of bail applications, non-availability of case files and other relevant documents due to a lack of proper communication among the prisons’ authorities, judicial officers and advocates.[20]

  • Lack of Health infrastructure in Prisons

The India Justice Report 2019 pointed out that Prisons are notorious for increased health risks and lowered life expectancy. The prevalence of HIV, sexually transmitted infections, Hepatitis B and C and tuberculosis in prison populations is 2 to 10 times higher than the general population. Prison mortality rate is increasing. Such conditions exist despite specific legislation and rules to tackle epidemics, manage prison hospitals, and schedule regular health check-ups. In reality, prison hospitals function erratically. They often lack proper equipment and the quality of treatment is reliant on an overworked corps of staff. According to data available nationally there was only one probation/ welfare officer for 1617 prisoners and one psychologist/ psychiatrist for 16,503 prisoners in 2019[21]. Uttarakhand had no person at the level of medical officer, while 12 states and Union territories, including Delhi, Karnataka, Jharkhand and Madhya Pradesh had a 50% shortfall at that level against the sanctioned number in 2019.[22] Even as on 2020 according to National Crime Report Bureau the “sanctioned strength of Medical Staff was 3,316 while the actual strength was 2,232”.

  • Lack of required sanitary facilities in Prisons

The hygiene and sanitation facilities in custodial institutions tend to be poor. The Model Prison Manual 2016 prepared by the ministry of home affairs recommends one toilet per ten inmates during the night and one for six during the day. (During lock-out times, prisoners are allowed to come out of their barracks for washing, bathing and fresh air). Reality, however, is far from this. The lack of enough bathrooms, water supply, and soap for bathing and washing are some of the reasons for the lack of overall hygiene in our prisons. These gaps, coupled with poor health care facilities, made prisons a fertile ground for the virus.[23]

4. CONCLUSION

Overcrowding in India ’s prisons is a long-standing problem that has been ignored by all levels of governments for years. The COVID-19 outbreak just exposed how perilous the conditions in prisons are, and threats these pose to the lives and health of both prisoners and prison staff. Instead of reducing, prison populations actually rose during the first few months of the pandemic, exacerbating the problem of overcrowding.[24] Police practice of systematic arrests and detention including for minor offences, the frequent overuse of pretrial detention and underuse of non-custodial measures, the backlog of cases in Indian courts, and the long delays between hearings, contribute to bloating prison populations. Yet, a justice system that caused the problem of overcrowding in the first place lent biggest help in resolving it during pandemic. The court by taking Suo moto action for stopping spread of COVID in prisons proved that it is serious about upholding the fundamental rights of people, even when the government of India fails to protect their most important rights. We cannot change what has happened but it would be foolishness to repeat those mistakes again. Let us keep below quote of Nelson Mandela in our mind and together make sure that jails are for reformative purpose only and fundamental rights of prisoners are never compromised.

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

                                                                                                                 -Nelson Mandela 

5. REFRENCES

  1. “Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014.” Accessed February 14, 2022. https://indiankanoon.org/doc/2982624/.
  2. “Nelson Mandela Quotes (Author of Long Walk to Freedom).” Accessed February 14, 2022. https://www.goodreads.com/author/quotes/367338.Nelson_Mandela.
  3. “PRISONERS OF THE PANDEMIC:  THE RIGHT TO HEALTH AND COVID-19 IN PAKISTAN’S DETENTION FACILITIES.” Amnesty International, n.d., 37.
  4. “Search Result.” Accessed February 15, 2022. https://www.scconline.com/Members/SearchResult.aspx.
  5. “State/UT Wise Prisons’ Response to the Coronavirus Pandemic in India.” Accessed February 14, 2022. https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-covid-19-pandemic-in-india#Table%20G.
  6. “UNODC ‘Deep Dive’ Dialogues: ‘Prisoners Have the Same Human Rights as Ordinary Citizens.’” Accessed February 14, 2022. https://www.unodc.org/southasia/frontpage/2018/July/unodc-deep-dive-dialogue_-demystifying-prison-reforms.html.
  7. Bansal, Sakshat, and Shruti Sahni. “Bail, Prisons and COVID-19: An Indian Perspective.” Alternative Law Journal 46, no. 4 (December 1, 2021): 326–31. https://doi.org/10.1177/1037969X211038636.
  8. Burki, Talha. “Prisons Are ‘in No Way Equipped’ to Deal with COVID-19.” Lancet (London, England) 395, no. 10234 (2020): 1411–12. https://doi.org/10.1016/S0140-6736(20)30984-3.
  9. D, Ashna. “Do Prisoners in India Have a Right to Health?” Social Policy (blog), October 7, 2020. https://blogs.lse.ac.uk/socialpolicy/2020/10/07/do-prisoners-in-india-have-a-right-to-health/.
  10. Hindustan Times. “No Bail, but Doctors to Examine Varavara Rao,” November 13, 2020. https://www.hindustantimes.com/india-news/no-bail-but-doctors-to-examine-varavara-rao/story-khlXqHlbl38jrgUE3lpFhK.html.
  11. Hindustan Times. “What Covid-19 Taught Us about State of Our Prisons,” February 23, 2021.
  12. Mehta, Mr Tushar, Swati Ghildiyal, Mr Ankur Talwar, Mr G S Makkar, and Mr Raj Bahadur. “COUNSEL FOR THE PARTIES,” n.d., 8.
  13. National Crime Records Bureau, (Ministry of Home Affairs), and Government of India. “Prison Statistics India 2020,” n.d., 354.
  14. Pooja Kumari, Nandita Singh, Akoijam Surjit Singh and Prince Kumar Poddar. “Indian Prison And COVID-19.” ppf.org. Accessed February 14, 2022. https://ppf.org.in/opinion/indian-prison-and-covid-19.
  15. Ramesh Menon. “India Justice Report Shows Legal System Needs Urgent Attention.” TheLeaflet (blog), January 28, 2021. https://www.theleaflet.in/india-justice-report-shows-legal-system-needs-urgent-attention/.
  16. Saranga Ugalmugle, and Ancy Susan Georg. “Prison Statistics Report 2020 Shows Govt’s Negligence of Prisoners During the Pandemic.” The Wire, n.d. Accessed February 14, 2022.
  17. Sharma, Neetu Chandra. “Shortage of Medical Staff Puts Indian Prisoners at High Risk of Covid-19.” mint, July 20, 2020. https://www.livemint.com/news/india/shortage-of-medical-staff-puts-indian-prisoners-at-high-risk-of-covid-19-11595248789662.html.
  18. The Economic Times. “Prisoners Released during COVID-19 Second Wave Will Not Surrender until Further Orders: SC,” July 16, 2021. https://economictimes.indiatimes.com/news/india/prisoners-released-during-covid-19-second-wave-will-not-surrender-until-further-orders-sc/articleshow/84476279.cms?from=mdr.
  19. The Indian Express. “Delhi: Let out Due to Covid, 2,500 Jail Inmates Fail to Surrender,” July 19, 2021. https://indianexpress.com/article/cities/delhi/delhi-prisons-department-releases-3800-inmates-to-decongest-jails-7400482/.
  20. The Wire. “COVID-19: Here’s How Many Prisoners Will Be Temporarily Released From Jail, By State.” Accessed February 14, 2022. https://thewire.in/government/covid-19-prisoners-release-jail.
  21. UN News. “Impact of COVID-19 ‘Heavily Felt’ by Prisoners Globally: UN Expert,” March 9, 2021. https://news.un.org/en/story/2021/03/1086802.
  22. Vijay Raghavan and Madhurima Dhanuka. “Covid-19: Ensure Prisons Do Not Turn into a Fertile Ground for the Virus.” Hindustan Times, June 5, 2020. https://www.hindustantimes.com/analysis/covid-19-ensure-prisons-do-not-turn-into-a-fertile-ground-for-the-virus/story-MVJdQa0f2GwwyCojTwQA3L.html.
  23. Waghmare, Ayush P. “Prisons in India and A Perspective on the Criminal Justice System,” n.d., 15.

[1] UN.org, https://news.un.org/en/story/2021/03/1086802 (last visited Feb 14, 2022).

[2]National Crime Records Bureau, https://ncrb.gov.in/sites/default/files/Executive_ncrb_Summary-2020.pdf (last visited Feb 14, 2022).

[3]India Police Foundation, https://www.policefoundationindia.org/images/resources/pdf/Prisons_in_India.pdf (last visited Feb 14, 2022).

[4] Contagion of Covid 19 Virus in Prisons, Suo Moto Writ Petition (C) No. 1/2020.

[5] Contagion of Covid 19 Virus in Prisons, Suo Moto Writ Petition (C) No. 1/2020.

[6] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[7] Contagion of Covid 19 Virus in Prisons, Suo Moto Writ Petition (C) No. 1/2020.

[8] Commonwealth Human Rights Initiative, https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-covid-19-pandemic-in-india (last visited on 14 Feb, 2022).

[9]  Commonwealth Human Rights Initiative, https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-covid-19-pandemic-in-india (last visited on 14 Feb, 2022).

[10]Contagion of Covid 19 Virus in Prisons, Suo Moto Writ Petition (C) No. 1/2020

[11] National Campaign Against Torture, http://www.uncat.org/by-country/india/the-status-of-covid-19-in-indian-prisons/ (last visited on 14 Feb, 2022).

[12] Policy Perspective Foundation, https://ppf.org.in/opinion/indian-prison-and-covid-19 (last visited on 14 Feb, 2022).

[13] SAGE journals, https://journals.sagepub.com/doi/full/10.1177/1037969X211038636 (last visited on 14 Feb, 2022).

[14] SAGE journals, https://journals.sagepub.com/doi/full/10.1177/1037969X211038636 (last visited on 14 Feb, 2022).

[15] Hindustan Times, https://www.hindustantimes.com/india-news/no-bail-but-doctors-to-examine-varavara-rao/story-khlXqHlbl38jrgUE3lpFhK.html (last visited on 14 Feb, 2022).

[16] SAGE journals, https://journals.sagepub.com/doi/full/10.1177/1037969X211038636 (last visited on 14 Feb, 2022).

[17] National Alliance v. State of Maharashtra, 2020 SCC OnLine Bom 843.

[18] State v Vandana (Patiala House Court, Bail Application No. 1163/2020, 17 June 2020); State v Om Parkash (Rohini Court, Bail Application No. 1160/2020, 26 May 2020); State v Vikas (Rohini Court, Bail Application No. 1171/2020, 26 May 2020).

[19] State v Salman (Tis Hazari Court, Bail Application No. 392/2020, 29 May 2020).

[20] SAGE journals, https://journals.sagepub.com/doi/full/10.1177/1037969X211038636 (last visited on 14 Feb, 2022).

[21]The Leaflet, https://www.theleaflet.in/india-justice-report-shows-legal-system-needs-urgent-attention/#:~:text=India%20Justice%20Report%20Shows%20Legal%20System%20Needs%20Urgent%20Attention,-byRamesh%20Menon&text=Among%20the%2018%20major%20states,West%20Bengal%20and%20Uttar%20Pradesh.(last visited on 14 Feb, 2022).

[22] LSE, https://blogs.lse.ac.uk/socialpolicy/2020/10/07/do-prisoners-in-india-have-a-right-to-health/ (last visited on 14 Feb, 2022).

[23] Hindustan Times, https://www.hindustantimes.com/analysis/covid-19-ensure-prisons-do-not-turn-into-a-fertile-ground-for-the-virus/story-MVJdQa0f2GwwyCojTwQA3L.html (last visited on 14 Feb, 2022).

[24] Azim Premji University, https://alumni.azimpremjiuniversity.edu.in/f/prison-statistics-report-2020-shows-govts-negligence-of-prisoners-during-the-pandemic-saranga-ugalmugle-ancy-susan-george-master-of-laws-law-and-development-2020-21-13121 (last visited on 14 Feb, 2022).


Author: Urmi Shah


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