ABSTRACT-
The paper deals with how out prisoners were vulnerable all throughout the phase of COVID 19. Putting the blame on the pandemic is an escape way which has no dead end. Numerous instances have been incorporated to show the real picture of the condition of prison cells and the trauma that prisoners had to go through. It has also touched upon where ill-equipped prisons failed to promise good living conditions to prisoners and where it lagged behind .It sets a clear idea of how there are legislations which are only on paper but are yet to be implemented in reality. The paper goes on to question few policies and critically examines the few aspects of where justice is delayed with infringement of human rights and the vulnerability of under trial prisoners has also been taken into account. It also mentions the steps that were taken by the courts but due to lack of proper mechanism, it wasn’t able to give justice to its promises. It also puts questions which the readers might dwindle upon and solutions for the same are awaited from the government. Lastly it comes up with suggestions that can be brought up in future for a more inclusive, rehabilitative form of justice in India.
KEYWORDS-
Prison cells, overcrowding, prison staff, inefficacy, rights, vulnerable
INTRODUCTION-
The purpose that imprisonment beholds is towards the protection of society against crimes. Gone are those days where it was deterrent in its protection but now it aims at being more reformative. In the process of incarceration, the prison system should aim at lessening the suffering of the already traumatised individuals. In the COVID 19, prisoners were entitled as one of the most vulnerable sections of the society. There was violation of article 21 which guarantees right to dignified life. In India, overcrowding, no proper abidance by the COVID protocol, suspension of prison visits, poor health and living conditions, and more influx of under trial prisoners caused a mayhem that took lives and denigrated the already inferior nature of prison cells. I will highlight the difficulties faced by in the prisoners during incarceration and how it had an impact on the well being of prisoners.
70% of the prisoners in 15 states and UTs give the share of under trial inmates. In the due course of 5 years the share of under trail prisoners shows a high in 23 states.[1] Many those who were held under the draconian laws such as UAPA, sedition faced delay in trial procedures and the COVID pandemic deteriorated their mental health and infringed their right to life.
Having a restorative, rehabilitative form of criminal justice mechanism, the prisoners aren’t granted basic human rights and in over 40 countries protests and unrest have been reported. I will also mention the proceedings that took place in the courts and how certain reforms were enforced which to some extent lessened their suffering and HPCs determined the class of prisoners to be released on parole or interim bail who have a maximum of 7 years of imprisonment and the UTRCs met every week for the same.[2]
RESEARCH METHODOLOGY-
The type of research done mainly is around doctrinal. It reviews the newspaper articles, analyses the journals, questions few provisions made. I confined my research to secondary resources, main legislations, case laws and various reports into consideration. I have used the Google scholar extensively and have considered different opinions of writers.
REVIEW OF LITERATURE-
From the perspective of one of the judgments namely Sunil Batra v Delhi Administration (1978),[3]the few cardinal lines that goes-
“It is imperative, as implicit in article 21, that life or liberty shall not be kept in suspended animation or congealed into animal existence without the freshening flow of fair procedure. Fair procedure in dealing with the prisoners calls for another dimension of access of law provision, within the easy reach of the law which limits liberty to persons who are prevented from moving out of prison gates”.
“No prisoner can be personally subjected to deprivation not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him to read and write, exercise and recreation, meditation and chant, creative comforts like protection from extreme cold and heat, freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, movement within the prison campus subject to requirements of discipline and security, the minimum joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment”.
The case highly gives importance to the rights and duties bestowed on prisoners. Their suffering shouldn’t be increased beyond the stigma that the society attaches and the restriction to movement that incarceration comes with. It rightly points out the inhumane practices that the prisoners have to go through and section 30(2) of the Prison Act gives power to keep a prisoner on separate cell that results to torture of prison inmates and breaches Article 14, 19 and 21 and is arbitrary to what can lead to separate confinement[4]. The rights that are conferred on prisoners should be executed in an effective manner. It speaks about the need to bring reforms in the Prison Act of 1894 by shedding light on horrifying instances.
The case Ramamurthy v. State of Karnataka (1997)[5] mainly deals with how uniformity in laws and regulations is cardinal to govern prisons in a sagacious manner. It also incorporated the idea of enacting a new Prison Act by replacing the anachronistic Prison Act, 1894.
The India Justice Report 2020 by Tata Trusts analyses the rankings of states regarding Police, Judiciary, Prisons and Legal Aid in this extraordinary course of pandemic. It focuses on the changes needed in the judicial and administrative sphere. As a large population of prisoners belongs to the lower strata i.e. the marginalised sector, it is necessary to mention that the shortfall in medical officers, overcrowding and cut off from the outside world took a heavy toll on their physical and mental well being. This report gives a critical review of the condition of prison cells and how reforms can be brought for the smooth delivery of justice. How there has to be a proper balance between the inmate to staff ratio is also looked upon deeply. It made us aware about how investment on technology can further make the whole process less cumbersome and vigilant in and beyond pandemic. The vacancies in every pillar are glaring and it is impacting the whole criminal justice system. It concludes by mentioning it is wrong to put blame on pandemic but to rather act on it so in future these shortcomings are avoided.
PRISONERS AND PANDEMIC-
On March 11 2020, WHO declared COVID 19 as a global pandemic and within a week’s frame Supreme Court took suo moto cognizance[6] which made a focus on issues that arose out of COVID 19 pandemic and the way to go about in this crisis. There was a dire shortage of the prison staff and the correctional staff that includes welfare officers, psychologists, lawyers, counselors, social workers among others[7] who made prisoners’ lives more vulnerable during this crucial time in the pandemic. As an offender, irrespective of how many grievous crimes the person has committed, be should be entitled with all the human rights within the limitations of imprisonment.
The goal should lie on the intention that the offender after the period of incarceration should be abiding by the laws and is self reliant. As is guaranteed by the Indian Jails Committee that reformation and rehabilitation of offenders is the main objective.
In the pandemic, high number of arrests have been due to petty offences like violation of lockdown and the lower courts treated it harshly which has led to increase in ingress of offenders. The prison cell became the epicentre for the spread of corona virus. It was also exacerbated due to lack of medical officers and apathy towards prison inmates.
LACUNAE IN PRISON CELLS DURING COVID-
Overcrowding–
Rate of ingress and egress of prisoners was on a peak. Most crowded was Delhi with an occupancy rate of 175% followed by Uttar Pradesh at 168% and thirdly Uttarakhand at 159%.[8] Prison cells became the perfect ground for incubation. This left no room for social distancing and therefore making them succumb to virus. The responsibility of prisoners lies with the State Government under Schedule VII List II Entry 4 of the Constitution. The prisoners so were completely dependent on the authorities for their wellbeing and somehow the states failed to fulfil its duty. The causes that led to overcrowding should be stressed upon. There have been unnecessary arrests in the pandemic along with a sluggish way of handling trials which could have been fairly dealt with if proper monitoring mechanism were adequately implemented. The conservative approaches being followed in granting bails and uncertainty in access to legal aid has contributed to overcrowding too.
Absence of robust mechanism to deal with health issues –
With the nationwide lockdown being imposed, the prisoners had to cut off from the outside world for an indefinite period of time. It led to delay in trials as there was no way to contact with their lawyers. Prison visits were suspended due to strict restrictive measures and proper recourse for the same wasn’t implemented. Mayhem was reported in Dum Dum jail in West Bengal[9] where the prisoners set the prison on fire which shows their terrible frustration due to the isolation they had to bear for an abnormal course of time. This incident also highlights how overcrowding of prisons may lead to security and control difficulties due to excessive fights and conflicts. There weren’t medical professionals who could deal with their anxiety, anger issues, stress among others. In the prison spending, mere amount of 4.3% is spent on healthcare.[10]
Shortcoming in digital delivery of justice–
Though video conferencing feature was brought so as to ensure speedy trials and communication with lawyers and family members, the glitches that it was accompanied with was saddening. Only 60% of the jails had video conferencing facility[11]. Family members were given to talk only in 15 days of time and for a very short span. There was an increase in the usage of video conferencing without any mechanism to overlook vigilantly on the same. The Bombay Court also highlighted that video conferencing facilities cannot act as a substitute to deliver trials on scheduled dates[12]. Video conferencing to family members was only applicable in later months of 2020 which took a toll on prisoners’ mental and emotional well being.
Vacancy of prison staff–
According to Prison Statistics 2019, there were only 762 medical officers to care for 4,78,000 prison inmates[13]. Inhumane conditions of the prisoners were also due to lack of medical officers. There is a shortage of training for prison staff due to inadequate infrastructure and human sources like regular teaching facility and modern training methods. Minimum of one medical officer for 300 prisoners and a full time doctor is desirable, only 50% of states and UTs abide by it and 25% of seats remain empty with Uttarakhand having no sanctioned medical officer appointed.[14]
Failure in granting accommodation to prisoners in COVID–
Stan Swamy was imprisoned under UAPA in the Taloja jail which lacked proper medical amenities.[15] Protection of prisoners is included in the State List and Maharashtra has failed in providing him with vaccination until his lawyers claimed for the same. He suffered from Parkinson’s disease and needed a sipper to drink water but was denied till application was sent to the court. The Taloja jail was ill equipped and overcrowded to handle emergencies. There was a serious damage caused as adequate healthcare wasn’t provided to him. There is a lack of adequate police escort and other legal inadequacies to handle such situations. Prominent leader Mohammud Ashraf Sehrai died in detention in Jammu and Kashmir[16]. He was booked under the Public Safety Act that has a provision to detain a person up to 2 years without any trial. It is not only a breach of fundamental rights but also abhors fair trial procedure for all.
In the second wave of COVID 19 pandemic that gave 2800 cases in prisons in India brought few temporary measures to prevent the outbreak of the virus in the prison cells. In the state of Madhya Pradesh, there were more under trial prisoners than there were before the pandemic. The population of prisoners that were released were equal to the population admitted. The population increased drastically and this was mainly due to high arrests done with regard to failure to follow lockdown protocols.
Less stress on elderly-
The elderly were barely benefitted by the release of prisoners. It could have been done on an urgent basis where elderly were released by giving priority. Even though elderly constitute a minuscule part but are most susceptible to the virus mainly the Septuagenarian prisoners. Condition of elderly in Gujurat and Rajasthan were the worst.[17]
STEPS THAT WERE TAKEN-
High Power Committees were set up to consider cases of under trials and prisoners convicted for offences punishable with less than seven years time. One of the provisions that were made was to meet in a month and make recommendations on the safety of prisoners.
Proper software and hardware was made available to facilitate prisoners to communicate with their counsels through E-Mulakaat.
After a span of 10 months, prisoners were made to meet their families in person with proper maintenance of COVID protocol and strict adherence to rules and regulations.
- Why only an extraordinary circumstance like COVID 19 made the authorities lessen the overcrowding in prisons?
- Why there isn’t any difference between ‘convicts’ and ‘under trials’ in practice?
The normal scenario in prisons is having an occupancy rate of more than 100%. This created a hasty business during COVID-19. This pandemic expected strict adherence to social distancing in prisons which was out rightly violated. In few prisons there were double the population of prisoners than what was prescribed. All the necessities that could have made the situation of pandemic less worse were given a blind eye. Overcrowding has an impact on prisoner’s health and proper training. It leaves no space for recreation, religious activities, rehabilitation and reduces staff confidence and willpower. Also there have been fake and arbitrary arrests by the police which contribute to overcrowding. Budget allocation for building prison cells has not been substantial enough to reduce this lacuna. The torturous process of investigation and trial also leaves no room for speedy justice. As the prison comes in the State List, the states pay less attention to budget the prisons in a well specified manner. There has been heterogeneous spending of funds in different states. Many states like Telangana spend more than 100% of its budget whereas Meghalaya spends as low as 50% for the upliftment of condition of prison cells.[18]
Going to the second question, under trial prisoners are those accused put behind bars during the period of investigation, inquiry and trial of the offence.[19] They are mostly charged with non bailable offences. Convicts are those guilty of an offence and sentenced by the court. In fact, the respective definitions glaringly show the difference between under trials and convicts. In practice, under trial prisoners are persecuted unlawfully kept in jails for an indefinite period. As 90% of the under trial prisoners are undergraduates and many have only completed their 10th grade[20], illiteracy and ignorance of law possess a major concern. Major population have to do away with their youth in this process.
As in common parlance we know, ‘Bail is a rule, jail is an exception’ as laid down by State of Rajasthan v. Balchand Aliyas (1977)[21], it should be fundamentally practised which doesn’t go in tandem with the way it is enforced in India. The bail applications are delayed, lawyers lethargic to relook on old cases and sideline the under trial cases therefore making this an endless loop followed since time immemorial.
SUGGESTIONS AND CONCLUSION-
As a lesson been learnt, steps should be taken in the upcoming days to lessen the trouble faced by the prisoners and to regain back the morale of public on the process of judiciary. Judiciary is rightly said as the panacea to all crimes. Firstly, to confront the crisis, there has to be changes in the manner of arrests, detentions and bails. Keeping this in mind that the situation won’t be as normal after this devastating outbreak of COVID, necessary reforms should be made regarding hygiene and sanitation that improves the current scenario. Secondly, everything that is mentioned on paper should be enforced so much so that it is applied in the real world. Thirdly, CCTV surveillance can be a part of the prison for proper monitoring and the conduct of the police and staff can be looked upon closely. As world has entered into a digital phase, proper investment on technology can foster an edge on the speedy process of trials and make us prepared for any extraordinary situation in future.
The threat that pandemic brought has a lot to do with how legislations are passed; laws are made but are enforced very little. This pandemic made us aware of the repercussions that improper handling of important spheres can have on the society and lives of the people and specially prisoners. It has to be remembered that right to life and liberty are inseparable and the manner in which prisoners were denied liberty, they were ultimately denied dignified life. The only solution to this is to understand the gravity of the situation and to protect our prisoners from inhumane conditions.
[1] Nupur et al., Ranking States on Police, Judiciary, Prisons & Legal Aid , 2 India Justice Report 1, 19(2020), https://www.tatatrusts.org/Upload/pdf/ijr-2020-overall-report-january-26.pdf.
[2] Press Trust of India, Prisoners released during Covid-19 will not surrender until orders, BUSINESS STANDARD (July 16, 2021, 20:03 IST), https://www.business-standard.com/article/current-affairs/prisoners-released-during-covid-19-will-not-surrender-until-orders-sc-121071601191_1.html.
[3] Sunil Patra v. Delhi Administration, AIR 1978 SC 409.
[4] INDIA CONST. art. 14, 19, 21.
[5] Ramamurthy v. State of Karnataka, AIR 1997 SC 1739.
[6] Debayan Roy, Supreme Court takes suo motu cognizance of COVID-19 issues, might transfer cases from High Courts, BAR AND BENCH (Apr. 22, 2021, 12:44 pm), https://www.barandbench.com/news/litigation/supreme-court-takes-suo-motu-cognizance-covid-19-harish-salve-amicus-curiae.
[7] Nupur et al., Ranking States on Police, Judiciary, Prisons & Legal Aid , 2 India Justice Report 1, 47(2020), https://www.tatatrusts.org/Upload/pdf/ijr-2020-overall-report-january-26.pdf.
[8] Id. At 46.
[9] Nupur Khanna, Coronavirus curbs trigger prison riot in Kolkata; one shot, THE TIMES OF INDIA (Mar. 22, 2020, 09:14 IST), https://timesofindia.indiatimes.com/city/kolkata/riot-erupts-in-dum-dum-jail-undertrial-killed-in-firing/articleshow/74753923.cms.
[10] Nupur et al., Ranking States on Police, Judiciary, Prisons & Legal Aid , 2 India Justice Report 1, 39(2020), https://www.tatatrusts.org/Upload/pdf/ijr-2020-overall-report-january-26.pdf.
[11] Id. At 45.
[12] Swathi Sukumar, Video Conferencing after COVID-19: The need for case-specific parameters, THE BAR AND BENCH (Apr. 08, 2020, 5:31 pm), https://www.barandbench.com/columns/video-conferencing-after-covid-19-the-need-for-case-specific-parameters.
[13] Nupur et al., Ranking States on Police, Judiciary, Prisons & Legal Aid , 2 India Justice Report 1, 39(2020), https://www.tatatrusts.org/Upload/pdf/ijr-2020-overall-report-january-26.pdf.
[14] Id. At 47.
[15] The Wire, Stan Swamy Passes Away After Contracting COVID-19 in Jail, Lawyer Demands Judicial Inquiry, THE WIRE (Jul. 5, 2021), https://thewire.in/rights/stan-swamy-death-covid-19-judicial-inquiry.
[16] Hakim Rashid, Hurriyat leader Ashraf Sehrai dies in detention, buried in Lolab of Kashmir, THE ECONOMIC TIMES (May 06, 2021, 09:08 AM), https://economictimes.indiatimes.com/news/india/hurriyat-leader-ashraf-sehrai-dies-in-detention-buried-in-lolab-of-kashmir/articleshow/82423898.cms.
[17] Krishnadas Rajagopal, Medha seeks release of elderly prisoners, THE HINDU (Jun. 19, 2021 22:51 IST), https://www.thehindu.com/news/national/supreme-court-intervention-amid-covid-19-has-not-helped-elderly-prisoners-medha-patkar/article34856954.ece.
[18] Nupur et al., Ranking States on Police, Judiciary, Prisons & Legal Aid , 2 India Justice Report 1, 31(2020), https://www.tatatrusts.org/Upload/pdf/ijr-2020-overall-report-january-26.pdf.
[19] Muskan Gupta, The state of prisons and undertrial incarceration in India, IPLEADERS (Apr. 9, 2021), https://blog.ipleaders.in/state-prisons-undertrial-incarceration-india/.
[20] See id.
[21] State of Rajasthan v. Balchand (1977) 4 SCC 308.
Author – Snigdha Dash
National Law University, Odisha
B.A. LLB, 1st year
This is so well written. Good job!