The State Of India’s Prisons During The Deadly Pandemic
The novel coronavirus does not discriminate. India has shown record breaking surges in new cases per day.[1]
Amongst the chaos that the pandemic brings, it has also forced the country to confront human rights violations of various groups of people who, for various reasons, are incapable of safeguarding their own interests. Amongst these groups arises a controversial category, namely prisoners. While lockdown measures were announced throughout the nation[2] to ensure social distancing, the problem to have emerged is that adherence to this rule becomes almost impossible in overcrowded prisons of the nation. Consequently, the infection amongst prisoners has spread like wildfire.
Taking suo moto cognizance[3], the Hon’ble Supreme Court reflected on the overcrowded prisons[4], thus directing States to file replies detailing preventive measures being taken for the same. The court further directed[5] the constitution of High-Powered Committees (HPCs) with full discretion to determine which category of prisoners shall be released from prisons on emergency parole or interim bails. This could be dependent on the nature and severity of the crime, or the number of years relating to sentencing, and any other factor the committee may find relevant.
The question for contemplation is thus, whether this discretion presented to HPCs is constitutional. Additionally, if prisoners should be kept on the same spectrum as other law- abiding citizens.
The former question was brought to the fore before the High Court of Bombay where such discretion was questioned on the basis of Article 14[6] of the Constitution, which promises the fundamental right to equality. The contention was that the discretion applied by the HPC of Maharashtra- categorising prisoners who shall or shall not be released- was arbitrary and in contravention to the right to equality. This categorisation prohibited release of prisoners incarcerated under charges of Special Acts of the country. Dismissing that argument, the High Court held[7] that the classification[8] made was not violative of Article 14, as the previous order by the Supreme Court clarifies that only “certain prisoners” are to be released. It is on that basis that reasonable classification has been made, which separates prisoners incarcerated on charges considered to be “anti- national” under Special Acts (release of whom would be a potential threat to the country’s economy or unity) as opposed to other prisoners not charged under the Special Acts. Therefore, on the contrary, this classification proves that the HPC followed the Supreme Court orders by sorting who to release depending on the severity of their crimes.
To answer the latter question of citizens and prisoners being kept on the same spectrum as a result of the pandemic, although it has been established that right to equality does not mean universal application of laws, the Government also needs to take into consideration the human rights of every individual, irrespective of their status, as India is a signatory to the Universal Declaration of Human Rights (UDHR), 1948. [9]
Prison administration being a subject of the State list, each State is responsible for such administration- including maintenance of safety provisions- of their prisons. Under domestic laws, The Prisons Act, 1984 puts the duty[10] on the State Governments to set up temporary prisons for safe custody of prisoners during the spread of any epidemic.
Additionally, the medical officer of the prison has charge of the sanitary administration of the prison depending on the rules made by the State Government. For example, provisions have been made in the Delhi Prison Rules, 2018 on how to deal with prisoners suffering from Infectious diseases, wherein comprehensive provisions have been given for segregation and disinfection.[11]
Furthermore, in light of Covid 19, these rules have been amended to add consequences of grant of emergency parole, if any.[12]
It is important to note that a pandemic is no easy road to travel, and when the duty is on the State Governments, responses to the same are bound to be different. However, irrespective of the procedure, rules and laws to tackle the spread of the virus, one aspect which remains common amongst every decision is the guarantee of a life with dignity, as has been granted under Article 21 to every individual, irrespective of their status as a free citizen or a prisoner. While this right is restricted for prisoners by a procedure established by law, such prohibition is only in terms of personal liberty. They are equally entitled to live under sanitary conditions, free from any inhuman and degrading living environment. With no sign of a halt to the pandemic, each State has a massive duty to ensure human rights even for the most villainized section of the society- its prisoners, notwithstanding their chances of release from prisons.
Vibhana Kanwar
Student Reporter, INBA
[1] Daily count rise of coronavirus cases in India has been the highest in the world. The largest one day spike having reached an outrageous number of more than 90,000 new cases a day.
[2] First phase of lockdown was announced on 25 March for 21 days. The country has seen a total of 5 lockdowns, each with laxer restrictions.
[3] Suo Motu Writ Petition (Civil) No. 1/2020
[4] According to the National Crime Records Bureau, occupancy rates of Indian prisons is at 117.6%
[5] 2020 SCC OnLine SC 344
[6] Article 14 states, “The State shall not deny to any person ‘equality before the law’ or the ‘equal protection of the laws’ within the territory of India.”
[7] After the High Court of Bombay declined the prayer to release prisoners charged under Special Acts, the plea has been moved to the Supreme Court of India, which has reserved its order as of 14 September 2020.
[8] This is in reference to the concept of ‘reasonable classification’ in contrast to that of ‘class legislation’ which is prohibited. Article 14 sustains the idea of classification of people into certain groups for application of laws, as long as such division is done on a reasonable basis. The test for such reasonableness was evolved in the case of State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 [Sarkar]. It lays down two conditions;
(i) the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and
(ii) that differentia must have a rational relation to the object sought to be achieved by the Act.
[9] Article 51(c) directs the State to foster respect for international law and treaty obligations.
[10] Section 7 of The Prisons Act, 1984.
[11] Rule 1865 onward.
[12] Rule 1212A has been added, which gives the Government discretion to decide whether the time spent by the prisoner outside on emergency parole shall be counted towards the sentence of the prisoner or not.