American Supreme Court judge Sonia Sotomayor wrote last year in one of her judgments:
“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.”
India’s Supreme Court echoes Justice Sotomayor’s concern by periodically taking up the case for decongesting prisons to emphasise its commitment to human rights jurisprudence. Unfortunately, the case calendar satisfies itself with this objective, rather than strive to achieve results which can restore trust among the intended beneficiaries.
In Re: Contagion of Covid 19 Virus in Prisons is a suo motu writ petition, first heard by the Supreme Court on March 16 last year by a bench comprising the then Chief Justice of India (CJI), S.A. Bobde and Justice L. Nageswara Rao. Considering that the bench on its own took note of the situation in the prisons even before the declaration of the nationwide lockdown, and with only 107 persons contracting the virus across the country, it was a prescient intervention.
Another bench comprising the current CJI, N.V. Ramana, and Justices Rao and Surya Kant heard the case on Friday after a gap of ten months, and issued a slew of directions. But is the Supreme Court anywhere close to achieving the purposes of its intervention?
There are 1,339 prisons in the country, and approximately 466,084 inmates inhabit such prisons, the order issued by the Supreme Court on March 16 last year said. According to the National Crime Records Bureau (NCRB), the occupancy rate of Indian prisons is at 117.6% and in states such as Uttar Pradesh and Sikkim, the occupancy rate is as high as 176.5% and 157.3%, respectively.
The Supreme Court noted that prison inmates are highly prone to contagious viruses, as the rate of ingress and egress in prisons is very high, especially since persons (accused, convicts, detenus etc.) are brought to the prisons on a daily basis. Apart from them, several correctional officers and other prison staff enter the prisons regularly, and so do visitors (kith and kin of prisoners) and lawyers. Therefore, there is a high risk of transmission of COVID-19 virus to the prison inmates. For the reasons mentioned above, our prisons can become fertile breeding grounds for incubation of COVID-19, the court noted.
On March 16 last year, the court appreciated the efforts of director general of prisons, Kerala and Tihar jail, Delhi for testing, screening and isolating cases before permitting the entry of new inmates. All the 17,500 inmates of Tihar jail were checked for the virus and it was found that none displayed any symptoms relating to COVID-19, the bench observed. After emphasising the need for social distancing, the bench directed that prison specific readiness and response plans must be developed in consultation with medical experts. A monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously, the bench ordered on the next day of hearing, on March 23 last year.
On Friday, the new bench which heard the case afresh didn’t review the effectiveness of these readiness and response plans.
Instead, the bench continued to assume as its predecessor did, that decongestion of prisons through release of prisoners would better ensure that the spread of the virus is controlled within the prisons. Experience, however, teaches that the correlation between decongestion of prisons and the success in stemming the spread of the virus can only be short-lived.
On March 23 last year, the previous bench which heard the case had directed each state/Union Territory to constitute a High Powered Committee (HPC) comprising chairman of the State Legal Services Committee, the principal secretary (Home/Prison) and director general of prisons, to determine which class of prisoners could be released on parole or an interim bail for such period as might be thought appropriate.
The HPC shall take into account the directions contained in para no.11 in Arnesh Kumar v State of Bihar (2014), the bench held. On Friday, the CJI-led bench reiterated this direction, by reminding that the court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down in Arnesh Kumar. The court had held in this case that police officers should not arrest the accused unnecessarily and magistrates should not authorise detention casually and mechanically. The court applied the direction to all cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.
On Friday, the bench directed the HPCs, in addition to considering fresh release of prisoners on the basis of the agreed criteria, to forthwith release all the inmates who had been released earlier pursuant to its last year’s order, by imposing appropriate conditions. Those inmates who were granted parole, pursuant to the Supreme Court’s earlier orders, should be again granted parole for a period of 90 days, the bench held.
Due to the reduction in the number of active cases, prisoners who were released last year were directed to report back to prisons. Almost 90% of the prisoners who were released last year have returned to prisons in February and March this year.
In order to ensure transparent administration, the bench directed other states to adopt the model of Delhi, wherein the prison occupancy is updated in websites. All the decisions of HPCs need to be published on respective websites of state legal service authorities/state governments/high courts in order to enable effective dissemination of information, the bench ordered.
The bench noted that some prisoners might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus. “In such extraordinary cases, the authorities are directed to be considerate to the concerns of the inmates. The authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned. The spread of COVID-19 virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff”, Friday’s order noted.
But it is clear that the bench ought to have ensured transparency by directing the jail authorities to periodically release data on testing and treatment of inmates and staff as well. According to one report, fears of an unchecked spread of infection and rising death toll loom large in Delhi’s prisons.
The CJI-led bench ought to have pulled up authorities why they did not follow its last year’s directive to follow the guidelines laid down in Arnesh Kumar. Why were thousands arrested and sent to judicial custody during the pandemic in violation of Arnesh Kumar? There is no point in reiterating a direction, without ensuring compliance to it.
By directing release of prisoners, the Supreme Court may appear to be magnanimous on the human rights front. But the readiness shown by the state to comply with its direction to release the prisoners shows that the state is keen on abdicating its responsibility to take care of the health requirements of the prisoners. Releasing them when there is a medical emergency of sorts outside the prisons with shortages of beds and oxygen supply would only mean abetting the state’s abdication of its duties.
It is therefore of utmost importance to direct release of official data on testing of prisoners, prevalence of infection among them and the extent of vaccination. Sadly, the order released on Friday chose to be silent on this aspect.
According to World Health Organisation, people deprived of their liberty, such as people in prisons and other places of detention, are more vulnerable to the coronavirus disease outbreak. People in prison live in settings in close proximity and thus may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. They also have a greater underlying burden of disease and worse health conditions than the general population, and frequently face greater exposure to risks such as smoking, poor hygiene and weak immune defence due to stress, poor nutrition or existing diseases. All these factors make people living in prison more susceptible to infections. Efforts to control COVID-19 in the community are likely to fail if strong infection prevention and control measures, testing, treatment and care are not carried out in prisons and other places of detention as well, the WHO has cautioned.
This is not to deny, however, important public health benefits as a result of premature release of prisoners. Section 436A of the Code of Criminal Procedure directs that an undertrial having spent half the maximum period of the sentence be released. The Law Commission had (268th report) recommended this to be brought down to one-third for offences where the maximum period is up to seven years. Last year, the Supreme Court had asked undertrial review committees to meet every month for the first six months to review undertrial cases.
Based on the directions of the apex court to be followed within the prison setup, PAAR initiated RTI applications in October 2020 to procure information on the status of their implementation. PAAR received data from different prison departments on various directions given by the Supreme Court to prevent and mitigate the transmission of COVID-19 inside prisons.
With regard to COVID-19 testing for prison staff and inmates, the Supreme Court had directed for the establishment of quarantine (isolation) facilities, COVID-19 facilities as well as testing centres. Although this has been followed to different degrees in different states, only six states (Rajasthan, Jharkhand, Uttarakhand, Kerala, Assam and Telangana) have created separate establishments pursuant to the directive.
Amendments to existing parole rules
Setting up of temporary or makeshift detention facilities and transferring inmates, as well as reducing the existing prison population by releasing prisoners on special provisions for bail and parole were some steps directed by the Supreme Court.
Several states’ prison departments have established temporary and makeshift prisons. Uttar Pradesh, for instance, has set up 85 such facilities – the highest in the country.
Assam has expressly included the period of parole in the overall prison sentence of convicted prisoners. Several states also took the opportunity to amend their existing parole rules in light of emergent situations.
The Uttarakhand prisons department set up ‘Carona Prevention Detection Centres’ in every district. These were set up through the office of the district collector/magistrate in beggar’s homes or other such facilities for prisoners to spend one month before being sent to regular prisons.
Delhi is the only state to consider mental health as an issue and provide counsellors to prisoners. PAAR sent applications under RTI Act to heads of prison departments of 25 states/Union Territories. Of these, 22 responded. Tamil Nadu, Arunachal Pradesh and Karnataka did not respond. Madhya Pradesh claimed it does not maintain any such information as requested.
While Uttar Pradesh, Rajasthan, Andhra Pradesh, Bihar and Uttarakhand constituted a good number of temporary prisons, other states have not constituted any. The government of NCT Delhi declared police quarters in Police Housing Complex Mandoli as a temporary prison. The government of Jammu and Kashmir too declared a few hostels and administrative block of University of Kashmir South campus high ground, Anantnag as temporary prisons.
Out of 18 states which responded to the court’s notice, four states/UTs introduced amendments to grant parole to the prisoners during the lockdown period. Rajasthan amended the Rajasthan Prisoners Release on Parole Rules, 2020 to grant special parole not exceeding four weeks on the recommendation of Prisoners Parole Advisory Committee.
Bihar prison department amended the conditions for premature release. Accordingly, convicts above 65 years of age sentenced for life imprisonment who have undergone seven years of punishment inclusive of release on parole, were declared eligible for premature release. Convicts sentenced with life imprisonment and suffering from incurable disease or critical illness or any other disease that can be transmitted as certified by the doctors and who have undergone five years continuous/seven years (inclusive release) imprisonment, can be prematurely released.
Jammu and Kashmir Suspension of Sentence Rules 2020 were amended to grant special parole for eight weeks that were extendable for further eight weeks in case of continuation of lockdown on fulfilment of eligibility criteria that included convicts with advanced age and illness.
But Friday’s hearing of the case by the Supreme Court shows that there is a huge gap between the intention of the court and its realisation.
As WHO has noted, prison health is part of public health, so failure to prevent COVID-19 from reaching prisons will adversely affect all society. WHO has reminded all countries that it is the responsibility of the State to ensure that people in prisons and other places of detention enjoy the same standards of health care that are available in the outside community, without discrimination on the grounds of their legal status.
As prison is a state subject, the Centre finds it easier to abdicate its responsibility to ensure the rights of the prisoners are protected and advanced. The Supreme Court’s ongoing intervention must not only ensure that the Centre exercises its responsibility, but the rogue states which have not complied with its earlier general directions with regard to testing and treatment are compelled to do so. Mere platitudes cannot help. The Supreme Court should go beyond doing lip service to the human rights of prisoners.