The Problem of Prisoners

While social distancing has been made mandatory in the outside world as an essential precautionary measure, it is simply not feasible for prisoners in India’s already over-crowded jails. The protection of the health of these prisoners is required not only for containment of the Covid-19 virus, but also for preserving their human rights, including right to adequate healthcare and right against discrimination, among others. Iran was one of the first countries to temporarily release over 54,000 prisoners to combat the spread of coronavirus in crowded jails.

In one of the daily briefings of the World Health Organisation (WHO), Executive Director Michael J Ryan stated that prisoners cannot be forgotten in the current situation. They may be serving sentences, but they deserve no less protection under the law than others. WHO Director General Dr Tedros Ghebreyesus added this is everyone’s problem and no one must be excluded. The head of the United Nations Comm­ission for Human rights, Michelle Bachelet Jeria, also addressed the issue, stating that neglecting prisoners during the pandemic is potentially catastrophic as physical distancing and self-isolation in those conditions are practically impossible.

WHO published its guidelines titled “Preparedness, Prevention and Control of COVID-19 in Prisons and other places of Detention” which stated that such settings where people are gathered in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. According to WHO, state authorities need to frame an up-to-date coordination system that brings together health and justice sectors, keeps prison staff well-informed, and guarantees that all human rights in the facilities are respected.

In India, the Supreme Court took cognisance of the issue, and has directed each state and Union Territory to form a high powered committee to determine which class of prisoners can be released on parole or interim bail for such period as may be thought appropriate. The Court had made the following suggestions:

• Determine prisoners who should be released depending on the nature and severity of offence, the duration of sentence and any other factor relevant according to the Committee.
• Transfer of prisoners from one prison to another and physical presence of undertrail prisoners before court be avoided while resorting to video conferencing, to ensure maximum possible distancing among the prisoners.
• Directed formation of response plans to be made specific to each prison and in consultation with medical experts, along with monitoring teams to be set up at state level to ensure the compliance.
• Ensure creation of isolation wards, quarantine of new prisoners, preliminary examination of prisoners, availability of medical assistance, scanning of staff, sanitisation and cleanliness of prison campuses and wards, supply of masks, barring or limiting of personal visits for prisoners and suspension of group activities.

The apex court, while hearing a petition on the issue of release of prisoners above 50 years of age or with pre-existing ailments, gave them the liberty to make representation before the appropriate government which must deal with the same on a case-to-case basis, while saying that general directions cannot be passed for all prisoners in this regard. After the Supreme Court’s directive to stop prisons from becoming fertile grounds for the spread of Covid-19, the states also came up with various measures.

The High Powered Committee, headed by Delhi High Court judge Heema Kohli, decided to grant eight weeks of bail to around 1,500 inmates and also to quarantine fresh foreign national inm­ates. It called for isolation of inm­ates with symptoms of flu or fever, medical tests of inmates, special remission to prisoners left with six months or less jail term, and release of prisoners on emergency bail. It barred physical meetings of prisoners with their families.

Meanwhile, the Delhi Government informed the Delhi High Court that it was going to amend its Prison Rules to provide for special parole and furlough to prisoners. The government, through a notification from the Delhi Home Department, has amended the Delhi Prison Rules, 2018, to introduce the provision of “emergency parole”, to be granted for up to eight weeks, in addition to the regular parole. The Delhi High Court’s most recent order while hearing three bail applications, came up with a new way for convicts to mark their attendance through WhatsApp video calls and through Google Maps. The condition of furnishing of surety to get bail has also been removed. The Court has allowed all undertrial prisoners to be released on furnishing a personal bond if they are unable to fulfil the condition of furnishing a surety bond.

Advocate Ajay Verma, Convenor, National Forum for Prison Reforms, while talking to India Legal, stated that courts have taken measures for decongesting and social distancing. “In Delhi, around 3,600 prisoners have been released since March 23, but not all prisoners are getting similar treatment. An important concern right now are those prisoners who are not covered under the recommendations of the High Powered Committee of Delhi, and are in constant panic. These include those charged with economic offences, Prevention of Corruption Act, CBI cases, foreign prisoners, prisoners who have their appeals pending before the High Court, and so on, and these bail applications are being decided by the courts on a case-to-case basis,” he said. According to him, the High Court has been doing a wonderful job, and it would be helpful if the courts function more.

Tihar Jail, the largest prison complex in the country, decided to release 3,000 inmates to avoid overcrowding, after screening them and considering each case before the final release. Meanwhile, a source from Tihar Jail informed India Legal that new prisoners are being allowed inside only after screening and medical check-up and are being kept in separate wards to avoid risk of infection. The staff are being screened daily and anyone suspected is being quarantined. Use of masks and sanitisers has been made compulsory for both the staff and the prisoners. No Covid-19 case has been registered there yet.

Other states have unveiled their own strategies for prisoners, or have been directed to by their respective high courts.

• The Chhattisgarh High Court decided to release undertrial and convicted prisoners on interim bail or bail, and has ordered transferring the inmates from where there could be a problem of over-crowding to other jails with more space.
• In Jammu and Kashmir, around 65 prisoners, including 22 who were arrested under the Public Safety Act (PSA), have been released.
• The Haryana government has decided to give bail to prisoners with a record of good behaviour who are not facing trial in other cases. It also allowed release of convicted prisoners who have served up to seven years of their sentence. They have been given parole or bail for 45-60 days, in order to decongest prisons.
• The Madhya Pradesh government decided to release around 5,000 convicts on emergency parole of 60 days and around 3,000 undertrials on interim bail of 45 days. The Uttar Pradesh government has also decided to free 11,000 prisoners lodged in 71 jails in the state.
• In Maharashtra, the Bombay High Court has directed the government to expedite the process of releasing prisoners and undertrials identified as qualified to be freed on temporary bail or parole. Approximately 11,000 prisoners were to be released on emergency parole for 45 days. So far 4,060 prisoners have been released.
• The Bihar Government, however, mo­v­ed the SC praying for mo­dification in its previous order, to allow the state to refrain from releasing its prisoners. The apex court, on April 13, clarified that its order was not compulsory for every state to follow, and did not direct the states to mandatorily re­lease prisoners, but only asked them to assess the situation. The court added th­at no prisoner with Covid-19 will be re­leased, and the released prisoners will be provided with transportation in full compliance with rules of social distancing.
• The court also directed the release of those foreign detainees in Assam who have been lodged in detention centres for two years or more, relaxing its previous condition of not releasing such prisoners before three years, and also reducing the amount of personal bond from Rs 1 lakh to Rs 5,000 in the wake of the pandemic.
• The Union Home Ministry, in a recent development, has written to all states where foreign nationals are being held in detention, ensuring that they be allowed to meet visitors via eMulakat, and medical equipment and kits to screen foreign detainees be available.

The basic idea, as directed by the ­courts, is to protect prisoners by following strict sanitation protocols, increase their immunity by ensuring nutritional food items are included in their diet. Directions have been issued for arranging masks and sanitisers for prisoners along with clean toilets, and counselling facilities for those whose mental health may have been affected. Exceptional times call for exceptional measures and the regard being given to human rights of prisoners is reassuring, considering the conditions in over-crowded prisons.

Lead Picture: UNI