Madhya Pradesh: Lack of Judicial Intervention is Making Prisons COVID-19 Hotspots

The judiciary's reticence is apparent when in a petition filed by Madhuri Krishnaswami to decongest prisons, the high court diverted the attention towards the activist's 'credibility'.

Mumbai: In early June, Madhuri Krishnaswami, a tribal rights activist from Madhya Pradesh moved the high court (HC) seeking urgent intervention into the condition of prisoners in the state in the wake of the COVID- 19 pandemic.

Her concerns were that if the state did not follow the Supreme Court’s order from March 23 to decongest prisons on an urgent basis, there would soon be a major outbreak in them. Several news reports had already indicated a mass spread of the virus in some jails of MP.

Since June, the petition has come up for hearing six times before the Jabalpur HC; the case, however, has been adjourned each time without any relief.

On August 18, however, the division bench of the MP HC comprising of Chief Justice Ajay Kumar Mittal and Justice Vijay Kumar Shukla asked the petitioner to file an affidavit establishing her credibility to file a petition in the court. The court wanted to know what Krishnaswami has done to “tackle” the menace of the coronavirus in the state.

The direction by the HC was unusual but Krishnaswami had to file a detailed 10-page affidavit listing her qualifications and the work her NGO Jagrit Adivasi Dalit Sangathan had carried out.

“Since the onset of the COVID-19 crisis, the petitioner has been continuously working for mitigation of distress among rural poor by helping them access the additional ration sanctioned by the government…” she mentioned in her affidavit filed on September 3.

Krishnaswami said the court’s response to her petition so far has dismayed her. Her petition sought court’s intervention to ensure proper implementation of the Supreme Court order but instead the HC, she said, diverted attention towards her. “The concerns raised in the petition were about the prisoners in the state, instead my work and credibility became a focus of the petition,” she rued.

Madhya Pradesh high court in Jabalpur. Photo: Wikimedia Commons/Gyanendra_Singh_Chau CC BY 3.0

Occupancy ratio

Prison statistics show that jails in India are overrepresented by those belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs) and Muslims. “And the delay in looking into such petitions amounts to a direct injustice to the marginalised communities,” Krishnaswami said.

Krishnaswami’s concerns stem from Madhya Pradesh’s prison data. Data released for August indicates that in 131 prisons 11 Central, 41 district, six open, and 73 sub-jails there are 43,388 prisoners lodged. Of them, the data suggests, close to 60% are undertrial prisoners.

The total capacity of the prisons, however, is to accommodate 28,659 prisoners, which means that the occupancy is at 151%. At the end of August, 185 children, between the ages of 0-6 were lodged along with their mothers in jails.

While the cumulative figure shows over 150% occupancy, the conditions of some prisons are even more alarming. For example, the Maihar sub-jail which has a capacity to accommodate only 30 prisoners, was housing a whopping 170 prisoners in that space, i.e. 566% occupancy. Similarly, in Dindori district prison, in the space available to house 50 prisoners, 148 persons were being held.

Different news reports and officials’ statements indicate that COVID-19 has infected more than 60 persons in jail. But there is no clarity on how many tests are really being conducted in MP prisons, and if there are separate facilities set up in jails to treat patients.

It is not that the prison department did not release any incarcerated persons. They did, but it was just not adequate. According to a report submitted by the director general of prisons to the high power committee constituted following the apex court’s order, by April 13, 6,124 prisoners were released. Of them, 2,557 were undertrial prisoners and 3,567 were convicts.

This was a mere 13.92% of the total number of incarcerated persons.

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A month later, on May 17, the deputy inspector general (prisons) Sanjay Pandey informed the press that 6,500 prisoners had been released, which means, only approximately 400 more prisoners were released in that span of one month. The petitioner stated that in comparison with other states, MP has failed in its efforts to decongest the prisons.

Other states with serious overcrowding of prisons have released at least over 20% prisoners, the petitioner pointed out. Among them, Tamil Nadu has adopted the most effective measures, and the prison population has come down to an impressive 60% occupancy (after the release of over 4,500 prisoners, around 13,500 prisoners are still lodged in several state prisons).

The National Legal Services Authority (NALSA) in May claimed that 42,529 pre-trial detainees and 16,391 convicts were released across India.

Representative image. Photo: Reuters

Rising number of arrests

The number of arrests have, in fact, only gone up since the national lockdown was imposed on March 24, advocate Nikita Sonavane pointed out. Sonavane, who is representing Krishnaswami in the case, said that arrests have increased in the past six months.

“The MP police’s website indicates over 32,000 arrests. A large number of these cases are related to the violation of lockdown rules in the state. While on the one hand, the state’s prison department was sluggish in its efforts to decongest prisons, the police department has gone ahead pushing more people behind bars,” she shared.

Just between March 22 and May 31, data shows that as many as 7,490 new arrests were made in the state under sections like 188, 269, 270 of the Indian Penal Code, and Disaster Management Act. Unlike most other states, in MP, section 188 of the IPC (disobedience to order duly promulgated by public servant) is a non-bailable offence. Another 5,000 persons were arrested under the MP Excise Act and more 4,000 under the Public Gambling Act. Under both the MP Excise Act and the Public Gambling Act, offences are punishable with more than seven years of imprisonment.

“The state focused on arresting more people at the time when it should have invested its resources to decongest the prison space,” Sonavane argued.

Also Read: In Maharashtra Jails, Prisoners Are Being Tested for COVID-19 Only After Their Death

Krishnaswami and Sonavane began tracking the cases of COVID- 19 in March. MP was perhaps the first state to have recorded an outbreak in prison. In April, 32 persons had tested positive in the Indore Central Prison. The prison is overcrowded, with over 177% occupancy, the petition pointed out.

“Even when two persons detained under the National Security Act had tested positive for COVID-19, the authorities sent them to Satna Central Prison. This increased the number of cases there. It is alarming how the prison authorities decided to take in prisoners despite their medical condition,” Sonavane said.

On March 23, the apex court had directed every state to set up a high power committee (HPC) and formulate their own unique plans to bring down the prison population. Every state came up with its own, MP too did. Prisoners were either supposed to be released under parole or emergency bail.

For parole, the state prison authorities decided that of the convicted prisoners, male prisoners over 65 years of age, women over 50, pregnant women prisoners, prisoners suffering from cancer, and with a severe heart condition would be considered. For undertrial prisoners, only those booked under sections attracting five or lesser years of punishment would be considered for parole.

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Sonavane called this criterion bizarre. “The HPC has given no reasons for deciding to release only those booked under punishment of five years or lesser. These decisions can’t be arbitrary when it is amply established that thousands of prisoners suffer prolonged pre-trial detention in India.”

Every year, around 1,800 prisoners die in jail custody. Most of these deaths are due to the lack of adequate and timely medical care. With five prison deaths per day, India’s prison mortality rate (at 3.96 per 1000 prisoners) is one of the highest in the world. The health system in the country is excessively strained and prisons, like always, are last on the state’s priority.

The case is next listed for hearing on September 23.

Krishnaswami said that as custodians of those jailed (those incarcerated in prisons are held under judicial custody by law), she is hoping that the court directs the state prison authorities to take adequate measures at the earliest. “The delay of every single day has a bearing on the lives in jail. For every infection and lives lost in prison, it is the judiciary and the state that is responsible,” she added.