Decongesting prisons in pandemic

Reducing the number of prisoners is essential to cut the spread of Covid-19 in our overcrowded jails

Prison justice in India remains largely inadequate in spite of several measures suggested by higher courts and eminent personalities like VR Krishna Iyer and PN Bhagwati. This problem is further confounded by the deadly pandemic. Once the pandemic began, prisons and jails became “Petri dishes” for the virus. People in prisons and jails now look up to the judiciary for enforcement of their constitutional rights.

India has over four lakh prison inmates. Most prisons are overburdened and house inmates beyond their optimal capacity. Decongestion of prisons is a matter of concern affecting the health and right to life of both the prison inmates and the police personnel working.

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Rights of Accused

In In re: Contagion of Covid 19 Virus in Prisons (May 7, 2021), the Supreme Court observed that reduction of impact of the pandemic requires the court to calibrate effectively the concerns of criminal justice system, protection of health, rights of the accused. It is also equally important that from limiting arrests to taking care of Covid-19 patients, there is an imminent need for effective management of the pandemic from within the prison walls so as to defeat this deadly virus.

On March 16, 2020, the Supreme Court had acknowledged that overcrowding of prisons could lead to devastating consequences for prisoners amidst the raging pandemic. Consequently, the court directed the States and Union Territories to decongest the prisons by releasing the prisoners either on interim bail or parole.

Surprisingly, in March this year, the Supreme court appears to have ignored the continuing risks by stepping back from the positive measures it took last year. In its March 1, 2021, order, the court had decided to unwind the clock and recall all the temporarily released prisoners back to prison as it is felt that the ‘situation is improving’, which has been rightly criticised as a retrograde step changing de-congestion to re-congestion in prisons. It is gratifying to note that a three-judge bench of the top court headed by Chief Justice NV Ramana has attempted to undo the damage caused by this order through its order dated May 7.

Class of Prisoners

Last year on March 23, the apex court directed State governments and Union Territories to constitute high-powered committees to identify the class of prisoners who could be released either on parole or interim bail for certain select periods, depending upon the nature and gravity of the offence committed, sentence passed, and the stage of trial, etc.

These Committees were directed to take into account the directions contained in another landmark judgment of the top court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273], in which the Supreme Court directed to ensure that the police officers do not arrest accused unnecessarily and Magistrates do not authorise detention casually and mechanically, where the 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. Such committees were constituted in all the States, except a few, and on the basis of their recommendations, a large number of prisoners were released either on interim bail or on parole.

Back In Prison

The apex court has been informed that almost 90% of the prisoners who were released last year have returned to prisons in February and March 2021. The court took note of the unprecedented surge in Covid-19 during the last few weeks resulting in a steep spike in the number of people who are affected by the virus.

In the present situation, there is a serious concern about the spread of Covid-19 in overcrowded prisons where there is no proper sanitation, hygiene and medical facilities. The Attorney General of India also conceded that prisons need to be decongested by releasing some prisoners in view of the grim situation.

After considering all the relevant factors and submissions, the Supreme Court, being the sentinel on the qui vive of the fundamental rights, recognised the need to strictly control and restrict the authorities from arresting the accused in contravention of the guidelines laid down in Arnesh Kumar v. State of Bihar (2014) during the pandemic.

Reiterating that the rapid proliferation of the virus amongst the inmates of congested prisons is a matter of serious concern, the apex court directed the high-powered committees constituted by the State Governments/Union Territories to consider release of prisoners by adopting the guidelines, including the Standard Operating Procedures, laid down by the National Legal Services Authority followed by them last year, at the earliest. The States, which did not constitute the high-powered committees last year, were directed to do so immediately.

The court also directed that the committees, in addition to considering fresh release, may forthwith release all the inmates who were released earlier pursuant to its order dated March 23, 2020, by imposing appropriate conditions in order to save valuable time. It was also directed that those inmates who were given parole, pursuant to earlier orders, should be again granted parole for 90 days to tide over the pandemic. The information about the occupancy of prisons and release of persons was directed to be made available on the official websites to ensure transparency.

Concerns of the Inmates

In view of the possibility that some of the prisoners who are serving long sentences and are not willing to be released due to their social background, the authorities were directed to be considerate to their concerns and ensure proper medical facilities are provided, including regular testing, and maintain required levels of daily hygiene and sanitation.

Overcrowding of prisons is a phenomenon plaguing several countries, including India, and a reduction in the jail population is the best way to mitigate the spread of Covid-19. During these extraordinary times, the apex court has exhibited a humane trait.

Now it is for the State governments and Union Territories to implement the order of the apex court in true letter and spirit. At the same time, it is for the beneficiary prisoners to properly utilise the benevolence of our compassionate Supreme Court.

(Dr GB Reddy is Professor, University College of Law, Osmania University, and G Rishi Chandra Reddy is 3rd year student, IFHE School of Law, Hyderabad)

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