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THE GRIM REALITY OF INDIAN PRISONERS AND PRISONS DURING COVID-19

Authored by: Garvita Mehrotra

INTRODUCTION

As the Novel Coronavirus, the Covid-19 continues to rage around the world, claiming millions of lives, many countries of the world have imposed a nation-wide lockdown in order to prevent the virus from spreading further. Not only this has affected and suspended the important constitutional and legal rights of its ordinary citizen, but also of the migrant labour class and the prisoners. With the judicial system of the country temporarily suspended and considering only the important matters, that too online, the right of the prisoners has become a hot burning topic during the prevalence of the pandemic. With the courts being shut due to the fear of the Covid-19, all the matters that were scheduled to be taken up by the courts earlier, have been adjourned to further dates. Not only this has created a huge backlog of cases with the already snail-paced judicial system, but also affected the rights of those who have been in the judicial custody. While most of the people are quarantined inside their homes, the prisoners, are still locked up inside the jails. According to the Prison Statistics of India 2018, there are a total of 466,084 prisoners in India. The condition of the prisons in India is extremely substandard which is evident from the prevailing overcrowding, lack of trained personnel, poor infrastructure. There are approximately 1401 functioning prisons in India as of 31st December 2018. They have the capacity to accommodate 3,96,223 prisoners in total. This is evidently less than the actual number of the prisoners, which implies that the prisoners have to share a cell frequently. The key issue to be dealt with is that in a size of the cell which is hardly sufficient to accommodate two people, how will the social distancing norms be followed while in judicial custody. The prisons being already severely overcrowded, pose a threat for already residing in mates of the various jails?

What is  a Prison?

According to the Prison’s Act 1894, Prison refers to a jail or a place which, under the orders (special and general) of the State Government is used either permanently or temporarily for the detention of the prisoners. However, it excludes the following:

  1. A place for the confinement of the prisoners while they are still in the police custody
  2. A place that is exclusively appointed by the State government under s.541 of the Crpc.
  3. A place that is designated by a general or special order of the State Government as a subsidiary jail.[1]

According to Black’s Law dictionary, A legal prison is defined as a building that is designated by law, either for the confinement, or detention of persons who are judicially ordered to be kept in custody. In cases of necessity, the sheriff may also make any other place as a prison which may also include his own house. An illegal prison is the one that is not authorized by law. It is established by private authority; when the confinement is illegal, every place where the party is arrested is a prison[2].

It may also refer to a public building that is put into use for the confinement and custody of persons. This may be due to punishment imposed by the law or for the purpose of the administration of justice[3]

Who is a prisoner?

The Prison Act, 1894 defines three types of prisoners

  1. Criminal prisoner– means a prisoner who is duly committed to custody by the warrant or order of any Court or any authority which is exercising criminal jurisdiction, or by an order of a Court-martial[4]
  2. Convicted criminal prisoner-means a criminal prisoner who is under sentence of a Court or Court-martial. It includes a person who is detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 (10 of 1882)] or under the prisoners Act, 1871 (5 of 1871)][5]
  3. Civil prisoner means any prisoner who is not a criminal prisoner.[6]

According to Black Law’s Dictionary, A prisoner is the One who is deprived of his personal liberty. He is kept in confinement or custody against his will. It means a person who is deprived of his liberty upon any action, civil or criminal, or upon commandment. [7]

In other words, prisoner is a person who is subject to the custody of a jail or a prison, on account of committing an act that is prohibited by the law of the land. It means a person who is detained in legal custody by the orders of the court or any other competent authority.

Rights of prisoners in India

A man does not cease to be a human being by the reason of him being a prisoner. He is entitled to the same Constitutional and legal rights as any other human being who is a part of the society with a few exceptions of him being in the judicial custody. There has been a shift from the deterrence theory of Punishment to rehabilitation theory which although more strengthens the concept of protection of the rights of the convicts.  No one has the right to subject a prisoner to barbarous treatment just by the reason of him being a convict and an offender. The existing statues and the progressive judicial system have always made an attempt to protect the integrity and individuality of the prisoners. An undeniable significant effort has been made by the Indian legislature and the Judiciary when it comes to the branch of the jurisprudence of the prison justice by condemning the human rights violations of the inmates when perpetrated.

The Indian Judiciary has adopted a creative, Progressive and a vibrant role when it comes to the rights of the prisoners which can be discerned from the plethora of judgements passed over the decades.  In, T.V. Vatheeswaran v. State of Tamil Nadu[8], it was held that the Articles 14, 19 and 21 are available to the prisoners just like any other freemen. Prison walls cannot keep out or deprive a person of his fundamental rights

In Charles Sobraj through Marie Andre’o vs. The Superintendent, Central Jail, Tihar, New Delhi (1978), Supreme Court Justice Krishna Aiyer held, “..Imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen”. He further held that imprisonment of a prisoner is not merely retribution or deterrence but also rehabilitation. He observed that If the whole atmosphere is of constant fear ,violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused, then also the humane jurisdiction of the Court will become operational based on Article 19”[9]

The court has held that Right to life is guaranteed under Article 21 and not even the State has the right to violate it. A prisoner who may be an under trial, or a convict does not cease to be a human being. Even while he is in the jail he is entitled to the fundamental rights. He may be deprived of his personal liberty in accordance with the procedure established by law. However, he is entitled to all the residue constitutional rights.[10]

 Article, 14, 19, 20, 21 and 22 of the Constitution of India impliedly deal with Fundamental rights of the prisoners. Article 14 lays down right to equality which ensures equality before law and equal protection of law to all persons.  Article 21 ensures that no person is denied his right to life and personal liberty.  Article 20 prohibits double jeopardy, that is, no person should be convicted for same offence twice. It also prohibits self-incrimination, that is, no one can be compelled to be witness against himself. Article 22 provides that it is necessary that a person is produced before magistrate within 24 hours of his arrest. He should also be provided with a counsel of this own choice.  In addition to the above, the prisoners are also entitled to right to bail, right to food, right to shelter, right to health, right to have a speedy trial, right to get a free legal aid, right against custodial violence and death in police lock-ups or encounters, Right to reasonable wage in prison, Right to meet their friends and family members,right against cruel and unusual punishment and many more.

The Condition of the Indian prisons during Covid-19

India has witnessed a lot of crimes and resultant it accounts for the biggest prison problems.

Overcrowding has been a menace ever since in the prisons of India. At the end of December 2016, the occupancy rate of the Indian prisons stood at 114%. The Prison Statistics of India report (PSI) of 2018 which was released by the National Crime Records Bureau states the capacity of India’s prisons was 3,96,223 inmates while the inmate population was of 4,45,084. This is a cogent evidence which reinforces the hypothesis of overcrowding of the Indian prisons with certitude. This had made a complete mockery of the Social distancing measure that is the only feasible solution to break the chain of the virus on account of no availability of the vaccine to curb Covid-19

The states like Chhattisgarh (222.5%), Madhya Pradesh (208%), and Uttar Pradesh (168%) were especially overburdened. Social distancing is the one of the most effective precautionary measure in order to curb the spread of the virus, however with this level of overflowing occupancy, it is quite impossible.

Over the years, disturbing reports have “repeatedly highlighted overcrowding; the issue of poor sanitation and nutrition of the prisoners; the prisoner overstays; the shortage of trained prison staff, lack of doctors and escorts to bring prisoners to court; the unavailability of timely, quality legal aid; lack of appropriate mechanisms to review prisoner status;, as well as the absence of correctional and aftercare services for released prisoners in order to provide them with a new hope of rebuilding their future.

The condition of the Indian prisons was already perturbing, when the Pandemic Covid-19 struck India. The already existing hygiene and sanitation facilities in the Indian prisons were majorly inadequate, lousy and poor. According to The Model Prison Manual 2016, which was prepared by the ministry of home affairs, one toilet per ten inmates during the night and one for six during the day is allotted to each prisoner. However, in reality there is a lack of enough bathrooms possessing adequate water supply. There is a paucity of basic amenities like soap for bathing and washing . All this collectively highlights the lack of means to support the idea of hygiene of the prisoners in our prisons. Above all, there is inadequate medical facilities available in the prisons which ultimately make the Indian prisons a fertile ground for the virus.[11]

Moreover, there is a shortage of the Jail staff that has made effective implementation of even the basic precautions to prevent the virus a distant reality. The existing staff is not adequately trained in order to tackle the emergency situations or to devise a proper sanitation plan for the prisoners to ensure their safety.

The administration has been scaling up its efforts in order to flatten out the rising curve of coronavirus within the nation, amidst which the jails have now become a potential hotspot for infection pertaining to the substandard conditions of the Indian Jails.

The disquieting condition of the Indian prisoners during Covid-19 outbreak

The Prison life is undeniably gruelling and knackering. During the current discourse of the Pandemic, it is not unusual for the prisoners who are already away from their families to suffer an added mental stress. There is a likelihood of prisoners having mental health problems during their detention in the Lock-ups amidst the Pandemic.

The Judicial hearings have been delayed pertaining to the threat of the virus. This has caused a prolonged delay in the ongoing trials. Adding to the misery of the inmates, they are refrained from meeting their families as a precautionary measure. The meagre moments of the happiness of meeting with their family members and the social interactions that were occurring inside the premises of the jail have been temporarily suspended. Those in the prisons have been isolated in order to curb the spread of the virus. The cross-country narrative depicts that all this has made the prisoners even more vulnerable to mental disorders.

Consequently , the level of anxiety and isolation is rising among the inmates. Many  of them have rioted, and have demanded to be released. There have been reports of the inmates attacking jail officials with bricks, ransacking furniture and setting fire in some places, since they were annoyed for not being produced before appropriate judicial authority for a trial, nor were they allowed to meet their family members.

  The Honourable Supreme court has held that not providing proper and appropriate health care facilities to prisoners would violate their fundamental rights.[12]

The Model Prison Manual, 2016- 

It lays down extensive guidelines for the prisons to adhere to in case of the epidemics.  Chapter XII of the Manual provides for “EMERGENCIES”. Rule 12.01(x) declares that ‘Epidemic’ will be dealt with and handled as an emergency. It suggests that Overcrowding must be strictly avoided both in the hospital as well as in every cell and ward which is quite impossible to implement in India

It provides that When an epidemic is subsisting in the boundaries or vicinity of a prison, any sort of communication between the staff and the infected locality shall be prevented  and a special care shall be taken such that all arrangements to face an outbreak are completed.[13]

Further, it provides that Every prison shall be provided with a permanent segregation shed outside the prison walls. On the occurrence of a case or suspected case the patient shall not be taken to hospital but shall be immediately removed to one of these sheds . They shall not be allowed to enter the prison or communicate with other prisoners until all risk of infection is over. In case, of any prisoner showing symptoms , he shall be removed for treatment immediately.

It also suggests that all prisoners who are  either employed in cleaning a ward in which a case of suspected infectious disease has occurred, or those who have been in contact with the patient shall be detained under medical observation in a separate building.

With regard to maintenance of hygiene within the jail during the outbreak of the epidemic, it provides the following measures-

Rule 12.66. The floor of the segregation hospital shall be washed or sprinkled with 2% saponified cresol or izal lotion.

Rule 12.68. Special attention shall be paid to the cleanliness and hygiene of prisoners and their clothing. The water that had been used for washing shall not be allowed to remain within the walls of the prison.

Rule 12.69. The clothing and bedding of the inmates of an infected ward shall be either immersed for 30 minutes in boiling water or kept in 20% carbolic or cresol lotion. Hospital clothing and bedding which was used by infected patients shall be burnt. In case, the barrack in which the infected prisoner was staying occurs shall be immediately vacated and the vacated barrack shall be thoroughly disinfected

Measures taken by Supreme Court and government in the country to safeguard prisoner’s rights and interests-

Before the lockdown, the Indian prisons were already around 50 percent over their maximum accommodation capacity. Thus, the Supreme court took suo moto cognizance of the issue in the writ petition titled as “Contagion of Covid-19 in prisons” . The sole purpose or intention of the court behind this was to prevent the overcrowding of prisons and to decongest them so that in case of an outbreak of coronavirus in the prisons, the spread of the disease can be tackled. The case was heard by the bench led by Chief Justice S.A. Bobde, Justice L. Nageswara Rao and Justice Mohan M. Shantanagoudar.  A week later, it ordered states and union territories to constitute high-powered committees for determining suitable category of prisoners who could be released on parole or interim bail. The committee has to be constituted by (I) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s). The Apex court also suggested that “the State/ Union territory could consider the release of prisoners who have been convicted or are under trial for offences where the punishment is up to 7 years or less.”

It further issued directions for release of prisoners so as to prevent the outbreak of Covid-19 in prisons .  No prisoner shall be released in case he/she suffered from corona virus disease .If it is found that a prisoner who has been released is suffering from corona virus after the release, necessary steps should be taken by providing him quarantine facility. It directed that transportation of inmates shall be done while following of the norms of social distancing. No transportation shall be allowed in excess of half or one fourth capacity of the bus to ensure that the passengers who have not tested positive are at a distance from each other.

The state governments have decided to release the prisoners on interim bails or parole basis. These majorly include women and those above 65 years. The isolation ward in each jail for any inmate showing flu-like symptoms is established. Medical screening of new inmates is being undertaken. Also, they are being kept in separate barracks for at least three days.  Awareness of jail staff and inmates about general hygiene and precautions regarding Coronavirus is being encouraged. Masks are being provided to both staff and inmates. Hand wash and sanitisers are also being given so that the spread of virus can be controlled.

Conclusion

The following steps to combat the spread of the pandemic within jails can be taken to upheld the right to health provided to the prisoners under Article 21:

 All wards, barracks and common areas must be sanitized on a daily basis with water and disinfectant. Also, thermal thermometers should be extensively used to monitor visitors and staff. Adequate washbasins and hand wash facilities shall be made available. An improved nutritional diet must be provided to prisoners so as to strengthen their immunity.

In order to keep a check on infections a ban has been placed on visits by families and legal representatives. An alternative arrangement for communication using technology shall be provided such as videocalls such that the prisoners are able to talk to their families.

A dedicated helpline facility for e-counselling services may be set up to redress the grievances of the prisoners amidst the pandemic.

Being prisoners, do not make them less of a human being. Therefore, all their constitutional and legal rights shall be upheld just like any other citizen of the country.

This disclaimer informs readers that the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer, organization, committee or other group or individual.


[1] The Prison’s Act 1894, S.3(1) (Act 9 of 1984)

[2] Henry campbell black, Black’s Law Dictionary, 1358 (West Publishing Company,1968)

[3] Scarborough v. Thornton, 348 F.2d 17 (5th Cir. 1965)

[4] The Prison’s Act 1894, S.3(2) (Act 9 of 1984)

[5] The Prison’s Act 1894, S.3(3) (Act 9 of 1984)

[6] The Prison’s Act 1894, S.3(4) (Act 9 of 1984)

[7] Supra note 2

[8] 1983 AIR 361

[9] Marie Andre’o vs. The Superintendent, Central Jail, Tihar, New Delhi (1978)

[10] State of Andhra Pradesh v/s Challa Ramkrishna Reddy and Others AIR 1965 SC 1039

[11] Editorial , “ Covid-19: Ensure prisons do not turn into a fertile ground for the virus” , Hindustan Times(Jun 06,2020)

[12] Charles Sobhraj v. The Superintendent, Central Jail, Tehar, New Delhi, 1978 AIR 1514

[13] The Modern Prison Manual, 2016 , 12.57

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