Peoples Union for Democratic Rights (PUDR) welcomes the directions passed by the Supreme Court of India on 23.03.2020 in Suo Moto Writ Petition (C) 1/2020 titled In Re: Contagian of Covid 19 Virus in Prisons. Through the said order, all States and Union territories have been directed to constitute a High Powered Committee for the release of prisoners in the wake of the public health crisis related to COVID-19.
What is particularly significant is that the order of the court has noted the serious risk to the lives of prisoners that is being caused by the living conditions prevalent in the jails across the country. The court has also stated that prisoners are more susceptible to contagious viruses. Therefore, it has expressed the view that in order to guarantee the right to life enshrined under Article 21, it is mandatory that the jails be decongested and conditions within the jails be improved, to enable the provision of all the measures that are being popularised by the government for all people to follow in society at large. The Supreme Court has also previously held that the right to health is essential to the right to life.
The status of congestion in the jails at present is amply brought out by the following data in 2018 (Prison Statistics in India, 2018, National Crime Records Bureau). The all-India average rate of occupancy is 117.6%. More seriously, the figures are 176.5% in Uttar Pradesh, 157.3% in Sikkim, 154.3% in Delhi, 153.3% in Chhattisgarh, 149% in Maharashtra and 143.5% in Meghalaya. At such a level of overcrowding, basic requirements to maintain hygiene cannot be provided, and social distancing mandated to deal with the pandemic cannot be implemented. In such a situation the infection could spread at an unimaginable pace.
Additionally, jails need to be prepared to implement the separation of prisoners into 3 separate and secluded areas within the jail premises: one for those with COVID-19 symptoms, another for those more susceptible and therefore at greater risk, and a third for the rest. It is argued that even jails full to 75% capacity would be unable to implement this necessary segregation.
Given the actual conditions of jails in India, the outcomes of not taking measures, to decongest prisons immediately by releasing certain classes of prisoners, will be disastrous and chaotic. A jail riot has already taken place at Kolkata’s Dum Dum Jail on 21.03.2020 when prisoners’ meetings with family members were stopped, and other restrictions imposed on account of curbing COVID-19. In the absence of urgent efforts to decongest inside jails, chances of the disease spreading inside the jail remain dangerously high, leading at worst, to deaths of many of those imprisoned and all those in contact with them.
In this context it should be noted that as per 2018 data, 69.4% of all prisoners in Indian jails are undertrials, i.e. these persons have not been convicted of an offence (Prison Statistics, 2018, NCRB). Those convicted and serving time are required to undergo a jail sentence but they continue to have a right that their life cannot be put in jeopardy and they should have access to all means to ensure safety to their life in the same manner as any other citizen.
Reports of steps being taken or being contemplated by State governments have started coming in. However, some of them fail to appreciate the gravity of the matter that has in the first place forced the CJI to take cognizance and initiate suo moto action. Some states are working at a snail's pace, far too slow. Some seem to have completely failed to realise the dangers of the virus to those of advanced age and those with ailments. For instance, in an astonishing announcement by the State of Jharkhand, where the rate of prison occupancy is 128% (Prison Statistics, 2018, NCRB), the State’s High Powered Committee has decided that it will not release any prisoners as there has been no case of infection reported so far. Similarly, in the case of Delhi where jails with a capacity of around 10,000 house over 17,000 prisoners, the plan for releasing prisoners on bail and parole covers less than 2800, far short of the 7,000 that are above capacity, not to mention the minimum requirement of reducing some 10,000 prisoners. Such insufficient intervention is due mostly to a refusal to release many classes of undertrials. The gravity of the alleged offence or the name of the investigation agency becomes a specious argument in the present context. Today, it is the safety of the prisoner that needs to take precedence, for this is the responsibility of the state and of the courts. Additionally, the release process needs to be streamlined so that substantial amount of decongesting is achieved immediately.
A number of people are also routinely detained in lock-ups in police stations, of which many may not even come on record. Today there is a need for strict guidelines to prevent this to the extent possible.
The spread of infections to places of incarceration and detention adversely affects the employees of these institutions and prolongs the duration of the disease in the community at large. As the tally of COVID-19 cases across the country grows, state governments need to uphold the order of the Supreme Court in its true spirit, take into account the urgency and gravity of the threat of the disease and its spread, the ground reality of the extreme overcrowding of jails, the responsibility arising from custody and act swiftly and effectively in this matter.
In this light, PUDR urges the following interventions:
- Temporary decongestion of jails to reduce the inmates to not more than 60% of capacity. This will permit segregation of the inmates and maintenance of hygiene and proper provision of medical help.
- To achieve the above, the following categories of prisoners be selected for temporary release from the jails for the duration of the fear of the spread of COVID-19:
a) Prisoners with ailments (especially those of a respiratory nature or immunity related)
b) Prisoners of an advanced age – above 60 years.
c) Undertrials who have served more than half of their maximum sentence.
d) Convicts who have served three-fourth of their sentence.
e) First time offenders with minor offences.
Additionally, other prisoners who do not carry a perceived risk of absconding at a later date may also be considered.
3. Issue of strict orders to decongest police station lockups by releasing petty criminals.
4. Interrogation to be conducted without custody in the case of accused booked under offences that carry a maximum sentence of 7 years.
Radhika Chitkara, Vikas Kumar