-by Animesh Upadhyay & Shikhar Shukla

In the wake of the COVID-19 outbreak that has affected millions around the world over 200 Countries are in a battle for their very survival. In a bid to fight this battle of humanity versus COVID-19, the Governments around the globe are taking all the necessary steps to contain the virus but by each passing day, the ever-growing number of cases and the increase in death toll can only mean that all their attempts and measures taken to clamp down on the virus have proven futile. Due to its highly contagious nature, the disease tends to spread like wildfire and can prove to be even more fatal for people living in very densely populated regions which leads one to infer whether prisons around the world, usually overcrowded, are in any state to combat its spread amongst the staff or inmates of the jail.

Prisons in India are no different; overcrowded and unhygienic. Under such living conditions, prisoners cannot be expected to maintain physical distance let alone social distance. Also, the lack of health facilities and infrastructure leaves them even more vulnerable to COVID-19. Article 21 of the Constitution of India enshrines within itself various basic human rights necessary for not just the survival of a human being but so that he may live his life with dignity. Even though Article 21 has various applications for rights of prisoners such as the right to free legal aid and right to appeal, right to fair trial etc., in the present context it holds significance on the grounds of the outbreak of a disease which could potentially be fatal for the prison population, that is Right to health, Right to medical care etc.

To curb the spread of COVID-19 in the country, a complete lockdown was announced starting March 25th and the people were asked to maintain a social distance but for an inmate to socially distance himself from others is highly unlikely due to the high congestion of prison cells. According to the National Crime Records Bureau report of 2016, there are around 4.33 lakh prisoners among which 67.33% happen to be under trial. As per a report published by the same in 2018 on Prison Statistics in India, the all-India average of prison population stands at around 117.6% of the prescribed limit. States like UP, Delhi, Sikkim etc. have their prison population exceeding well over 150% of the prescribed limit.

In the light of the prevailing circumstances, the Supreme Court took suo moto cognizance of the matter and issued a notice underIn Re: Contagion of COVID 19 virus in Prisons addressing the Chief Secretaries/Administrators, Home Secretaries and Director General of all the Prisons and Department of Social Welfare of all the Union Territories and States to take immediate measures for the medical assistance of the prisoners in jails. The states and union territories were directed to file their reply by 20th March 2020 as per the court’s directions and on March 23rd after observing all the steps taken by the respective authorities the Supreme Court said that social distancing is necessary and that there was a need for the prisons to be decongested. The direction included for all the State and Union Territories to constitute a high-powered committee comprising of:

  1. Chairman of the State Legal Service Committee
  2. The Principal Secretary (Home/Prison)
  3. Director-General of Police prisons

The objective of this committee was to determine which class of prisoners could be released on parole or interim bail for an appropriate period of time. One of the conditions that could be used to gauge the seriousness of the crime committed and whether the said person would be eligible for an early bail could be in cases wherein the acts committed entail imprisonment of not more than 7 years with or without a fine. The high-powered committee would have to observe the nature of the offence and if the person is facing a trial or any other conditions as it may deem fit.

Right to Bail Under Article 21:

In the case of Babu Singh v. State of Uttar Pradesh, the Apex Court held that right to bail was included in personal liberty under Article 21 and its refusal would be the deprivation of that liberty and to preserve the very idea of it is why individuals charged with offences where bail can be granted should be let out on a temporary basis.

However, persons charged with non-bailable offences during the pendency of the trial cannot invoke Article 21. The Hon’ble Supreme Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan has observed that “Liberty is to be secured through the process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world along with the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.”But there exist provisions of law that empower the courts to grant bail under non-bailable offences to people the law deems fit and also there have been instances wherein the courts have granted bail to the elderly and the sick.

Considerations for Granting Emergency Bail:

Section 437 of the Code of Criminal Procedure, 1973 prescribes that such persons who are under the age of sixteen years or a woman or is sick or infirm may be granted bail even in non-bailable offences, upon fulfilment of certain conditions.

There have been many instances wherein the Court has granted bail to the prisoners accused of heinous crimes; the Supreme Court in the case of Amarjit Singh and Ors. vs State of Punjab granted bail upon furnishing a personal bond in the sum of Rs. 10,000/-, taking into consideration that the applicant was an elderly lady suffering from various diseases, even though she had been convicted by the trial court for an offence punishable under Sections 306 and 498A read with Section 34 of the Indian Penal Code. In the case of Anil Ari Vs. State of West Bengal, the Hon’ble Supreme Court of India while disregarding the merits of the case, granted the applicant bail solely on the ground that he was an elderly person of around 70 years of age. One can infer from the above examples that the Hon’ble Supreme Court of India has consistently taken a lenient view while considering the grant of bail to old, elderly, and ailing persons especially ladies, despite the offences for which they have been accused or convicted of carries a maximum punishment of more than 7 years, few of which have been reported in Bakshish Ram and Ors. v. State of Punjab and in Rajendra Prakash Agrawal v. Union of India and Ors.

Inter-Agency Standing Committee Interim Guidance:

Inter-Agency Standing Committee of United Nations issued “Interim guidance on Scaling-up COVID-19 outbreak in Readiness and Response Operations in camps and camp-like settings” jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organization (WHO). The Order suggests the States’ High Powered Committees make plans according to these guidelines. These guidelines state that due to this pandemic people who are living in closed places such as prisons, slums, detention camps etc. need specific focus as this disease is contagious and its spread will expose them to higher vulnerabilities as they are not just deprived of their personal liberty but also there is a complete absence of proper health and medical infrastructure. According to Rule 9 of Basic Principles for the Treatment of Prisoners and Rule 24of Standard Minimum Rules for the Treatment of Prisoners every prisoner has a right to medical aid and it is the obligation of the state to monitor whether prisoners are medically fit or not. It is mandatory for the State to take all necessary measures because they are equally entitled to these basic facilities just like the general population.

Problems Because of Lockdown:

As per the directions of the Supreme Court, high powered committees of various States and Union Territories have released prisoners, for example, Maharashtra released 11,000 prisoners, Assam Released 722 prisoners, Madhya Pradesh released 5000 prisoners on parole for 60 days and 3000 on interim bail for 45 days, India’s biggest jail Tihar planned on releasing400 prisoners but the main issue which came before the court was that these prisoners were not able to leave for their homes because of the lockdown imposed and were often left stranded on the roads. To curb this issue the Supreme Court has now ordered the Governments on 7th April to take measures and to ensure that they are provided with safe transit so that they can reach their homes. Inter-Agency Standing Committee guidelines also suggest some measures to provide adequate housing and reasonable accommodation, which may require the implementation of extraordinary measures as appropriate in a state of emergency, including using vacant and abandoned units for people who may not have a residence upon release. Article 21 of the Indian Constitution mandates that the Indian state is under the imperative to protect its citizens under the right to shelter. In Chameli Singh v. the State of U.P, the Apex Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India. Hence, it inevitably becomes the responsibility of the Indian government to either ensure that such individuals are provided with safe transit for them to travel or if they cannot under any given circumstance they should be provided with proper shelter to accommodate them.

Concluding Remarks:

Supreme Court’s order on decongestion of prisons in India comes during a time of crisis when much of the country is struggling to cope with the catastrophe that COVID-19 has pushed us into. Due to its highly contagious nature, the country has been in a complete lockdown mode for over 5 weeks now in a bid to slow down and potentially contain the virus before it can reach stage 3 that is of community transmission. Prisons in India happen to be in a terrible state of affairs. Apart from the total lack of infrastructure, its already existing prison cells have been holding inmates well over their capacity and even poor hygienic and the healthcare system. This makes them even more susceptible to the dangers of a disease such as COVID-19 and hence the decision to release them on an interim basis so as to help decongest the prisons is nothing but a welcoming decision taken by the Supreme Court.

The country recently witnessed the hardships faced by the migrant workers, as their mass exodus to their home states exposed the many flaws in the government’s initiative to keep people in their homes. Due to lack of any action taken with regards to migrant workers before announcing the lockdown, the country spiralled into a state of panic. Hence it becomes extremely important for the Union and State Governments to take appropriate measures because India cannot afford another outbreak on a large scale as it will push the country into colonial times and lack of appropriate plans will affect the people socially, psychologically and economically en masse.

The views are personal.

Image Courtesy: The Wire.


Animesh Upadhyay and Shikhar Shukla are penultimate year law undergraduates at Dr. Ram Manohar Lohiya National Law University, Lucknow.

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