Even though international treaties and the apex court have batted for the right of prisoners to healthcare, recent cases have shown that governments will show no leniency when it comes to activists
By Srishti Ojha
While the outbreak of Covid-19 has posed a threat to people all around the world, for prisoners staying in closely confined spaces in jail—where social distancing is a distant dream—it has been particularly trying. Since the pandemic began, measures for their protection have been taken not only for containment of the virus but for preserving their human rights. However, in some cases, this has been denied despite the prisoner being on the verge of death.
The Executive Director of WHO, Michael J Ryan, at the beginning of the pandemic had stated that prisoners cannot be forgotten. Though they may be serving sentences, they deserve no less protection under the law than others and it’s only possible to beat this situation when no one is left behind, he said. UN rights chief Michelle Bachelet had warned that neglecting prisoners during the pandemic was potentially catastrophic as physical distancing and self-isolation are practically impossible.
The Supreme Court too recently took cognisance of the issue and directed states to consider releasing prisoners. This has come as a ray of hope for them. High-powered committees were formed by states to determine the prisoners who could be released and they accordingly started doing so. It was reassuring to see that such high regard was being given to the fundamental and human rights of prisoners by the government.
However, there have been several recent cases where these principles were not adhered to. These include cases of several activists arrested for their alleged involvement in the Elgar Parishad and Bhima Koregaon cases and booked under the Unlawful Activities Prevention Act (UAPA).
The UN has clearly mentioned in its principles that prisoners shall have access to health services available in the country without discrimination on the grounds of their legal situation. The International Covenant on Civil and Political Rights too states that all prisoners should be treated with respect due to their inherent dignity and value as human beings. The International Covenant on Economic, Social and Cultural Rights further states that prisoners have a right to the highest attainable standard of physical and mental health.
And yet, in the arrests of activists, this has been flouted with impunity. The most blatant example of this is the case of Varavara Rao, the 80-year-old Telugu poet who has been in jail since August 28, 2018 for his alleged involvement in the Elgar Parishad case and found Covid positive. His family claimed that they were shocked to find him lying in a hospital bed where he was admitted in a pool of urine, and they were not even allowed to change the sheets. He is nearly blind and on the verge of death, his lawyer claimed.
But the National Investigation Agency (NIA) still believes that the poet is “trying to take advantage of Covid-19”. It filed a 172-page affidavit before the Bombay High Court arguing that he was taking advantage of his situation in seeking bail from court. Though he is in JJ Hospital in Mumbai now, the government had rejected his bail plea five times in the last two years.
Anand Teltumbde and Vernon Gonsalves, the two accused in the Bhima Koregaon violence, were also in close contact with Rao in Taloja Jail and sought to be tested for the coronavirus. They urged the Bombay High Court to direct their release on humanitarian grounds, given that they suffer from chronic health problems and their continued imprisonment endangered their lives. The Court noted that some inmates of Taloja Jail had already tested positive and directed jail authorities and the NIA to respond to the petition.
In addition, Shoma Sen, a 61-year-old academic, who sought bail on grounds of multiple ailments, was also denied bail along with Rao. The NIA gave the same reason while challenging the bail plea of Sudha Bharadwaj, a 52-year-old legal activist and another accused in the Elgar Parishad case when she asked for interim bail on the ground that she suffered from two severe co-morbidities.
All this was done in spite of the recommendation of a high-powered committee for Maharashtra to release prisoners, including those above 60 years and/or those with underlying medical conditions which puts them at a much higher risk.
In addition, Sharjeel Imam, arrested for his alleged inflammatory remarks on CAA and the NRC protests last year, tested positive while lodged in Guwahati Central Jail. This came after activists Akhil Gogoi, Bittu Sonowal and Dhairjya Konwar who were lodged with Imam tested positive. All were booked by the NIA on charges of sedition and under UAPA provisions.
The denial of bail to select prisoners has been criticised by many. Acclaimed author Arundhati Roy has been concerned about the Koregaon accused being found Covid positive and the courts refusing bail to them. She recently wrote a letter to Delhi University professor GN Saibaba who was convicted for his alleged links to Maoists and is in jail. In the letter, she speaks of how immensely cruel it is to keep a man who is certified with 90 percent disability in prison, and how during Covid, a life sentence could so easily become a death sentence.
Advocate Sagar Ashok Shahani of Bombay High Court told India Legal: “The rights of a prisoner cannot be curtailed just because he is in custody. The Supreme Court has time and again reiterated the importance of the fundamental rights of prisoners whilst they are in custody. In Charles Sobhraj vs The Suptd., Central Jail, Tihar, the Court has stated: ‘Imprisonment does not spell farewell to the fundamental rights of the prisoners and as such, they ought to be protected with certain reasonable restrictions’.”
Though attempts were made to stop prisons from becoming fertile grounds for Covid-19, reports of several positive cases have shown that all efforts to curb the virus have failed. But the reluctance of the government and courts to grant bail to undertrials is surprising considering there is a strong chance of over-crowded prisons teeming with more cases.
A source from Tihar Jail told India Legal that though not large in number, Covid positive cases have been found there. They are not being sent to hospitals but are being treated in a separate isolation ward in the prison itself, he revealed.
Advocate Ajay Verma, former convenor, National Forum for Prison Reforms, told India Legal that an important step had been taken by the Supreme Court when on March 23, it had directed the formation of high-powered committees which would make undertrials and convicted prisoners eligible to be considered for interim release. Courts in many states have been positive in implementing the apex court’s order. Courts also consider medical illness as a reason for release, even in cases under the NDPS where bail is otherwise barred.
Verma said that protocols have been followed by Delhi prisons. These include isolation wards for prisoners who test positive, emergency cases being sent to hospitals if required and extra precautions for inmates over 55 years. Rapid tests were being conducted on all new entrants before lodging them in jail so that others could be protected, as per ICMR guidelines. Two jail hospitals have been equipped with oxygen concentrators.
International treaties and covenants have conferred upon prisoners the right to healthcare and the right not to contract diseases in prison. The UN Human Rights Committee in 1993 said there has to be a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty.
In India, the responsibility of protection of human rights of citizens has been assigned to the superior judiciary, including the Supreme Court and High Courts, by the Constitution. Article 21 preserves a prisoner’s right to life and human dignity and Article 14 enshrines the right to equality and equal protection of law.
In the landmark Parmanand Katara vs Union of India (1989), the Court had said that the State has an obligation to preserve life whether it is an innocent person or a criminal liable to punishment under the law. Supreme Court Justice VR Krishna Iyer had said: “Bail is the rule, and jail is the exception.” This has time and again been reiterated by the Court.
In the present cases, jail has become the norm for many prisoners and their rights have been completely ignored even if their life is under threat. Is this what is expected from a just and egalitarian society?