The Authors, Srijan Somal and Kratika Indurkhya are 3rd year law students at Dr. Ram Manohar Lohiya National Law University, Lucknow.
Although the clarion call to honor the human rights of the prisoners is the need of the hour, the solution to do the same poses risks on the general public when an alternate to save both exists in the Prison Act, 1894.
Prisons are notorious incubators and have a great possibility of becoming epicenters of an infectious contagious disease, a fact which was rightly foreseen by the World Health Organization (WHO) in light of Covid-19. Covid-19 was termed as a ‘pandemic’ by WHO on 12th March, 2020 and by 15th March, 2020 it came up with interim guidelines for the prisons named “Preparedness, prevention and control of COVID-19 in prisons and other places of detention.” Moreover, in three separate instances, infection was introduced by a newly received prisoner, and a single transfer to another prison resulted in an outbreak there. The major concern highlighted was acute numbers of prisoners present. Overcrowding in Indian prisons too, is a fact and the National Crime Record Bureau Report said a total of 1,361 jails across the country had over 4.50 lakh prisoners -- around 60,000 more than the total capacity of all prisons -- at the end of year 2017.
The measures taken in light of human rights which are extended to prisoners too, the Supreme Court of India took suo moto cognizance of the matter and issued directions citing Article 21 of the Indian Constitution, 1950. It directed the states to take prison specific readiness and response plans, to be developed in consultation with medical experts, and to form high powered committees to determine the categories of prisoners that can be left on parole or interim bail. The panic of meager sanitation and prolific overcrowding was also felt by the prisoners all around the world, including India when in the Dum Dum Jail of Kolkata a riot broke wherein one was shot and 8 hurt. It is a fact that all countries, especially ones where cases of Covid-19 have been found in prisoners, have been releasing the prisons. Now even Turkey is joining hands with Iran, United States and other countries in freeing its prisoners. North South Wales has come up with the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) providing for the release of prisoners from 6 to 12months.
STATE OF RELEASE OF INCARCERATED PEOPLE IN DIFFERENT STATES AND PROBLEM WITH THE MEASURE TAKEN
The precautionary measure as asked to be taken by the Supreme Court in its judgment has resulted in many states coming up with their policies to tackle the same. Whereas Maharashtra and Uttar Pradesh have agreed to release 11,000 prisoners, Punjab and Gujarat will release 6000 and 1200 prisoners, respectively. Chattisgarh, Uttarkhand and Kerala among other states are also additions to the list. Every state has given different days of applicability of such orders as recommended by their respective High Powered Committees.
Although releasing the incarcerated people from overcrowded prisons would surely help in curtailing the transmissible disease inside the prison, but what happens outside those walls? While a national lockdown is imposed in the country, is releasing such large numbers of prisoners the correct solution? We are well aware of the rule that the Court where crime was committed has the jurisdiction and not the place where the accused is a resident of- the question is how will the inter-state travel of such prisoners be accommodated? Even if everything is allowed, even to the extent of shielding such released prisoners, either on parole or interim bail from sections 188, 269,270 and 271, are we not defeating the rationale of national lockdown?
The reason for imposition of national lockdown as also said by the Hon’ble Prime Minister is that “We should all assume that social distancing is the only way in front of us- We cannot get out of the house. Come what may, stay at home." We must realize that Indian health care is not at a good place and even the doctor patient ratio, which as per WHO should have been 1:1000, stands at 1:11,082, and opting for preventive measure is the only way to save India. In fact, by making the violation punishable with criminal law sections (188, 269, 270 and 271 of the IPC, 1860), the strictness and necessity of the same can be felt. Plus, with such numbers of Covid-19 positive people reported in Italy, Spain, United States, and considering India’s population, the national lockdown should be followed with utmost respect. Now will the State be liable for itself violating the lockdown? Would not the state action lay with the meaning of ‘any act” in Section 269, 270 of the IPC?
The situation is aggravated by the fact that the prisoners will have to report to the local police station in every 15 days or once a month(Maharashtra) as against electronic tagging being followed in various nations like Abu Dhabi, states like New South Wales, hence increasing the movement all over the nation. We must also realize that there is nothing about prisoners who when left will be left homeless and helpless being more vulnerable, a problem also identified by the World Prison Brief.
Moreover, in such a scenario where governments are decongesting the prisons, one major question that arises is where are the people being detained for violation of lockdown under section 188, 269, 270 and 271 of the Indian Penal Code, 1860 kept? Delhi which has growing percent of prison overcrowding, currently detained 5,103 people till March, 25th. The same is for other states where detention is happening for violation of the national lockdown Although congestion is an issue, these detentions are bound to happen. Arrest and detention is unavoidable even during a national lockdown. So how do we go about it?
The exception of essential commodities and medical shops from lockdown, that too with the guideline to facilitate home deliveries was given with the aim to minimize people coming outside their houses. With such guidelines in existence, are we sure that defying the national lockdown is the only way to protect our incarcerate persons?
VIABLE SOLUTION TO THE PROBLEM
Not that we are against the clarion call to respect and honor the human rights of the prisoners, but the question is when the human rights of the prisoners are at stake, and as seen above, the lives of the rest of the people too if and when the prisoners are released, do we find ourselves in a Daedalian position? The answer to address both the problems is one – temporary prisons. Another colonial Act, like the Epidemic Diseases Act, 1897, Prisons Act, 1894 is what comes to our rescue. Section 7 of the said Act provides or accommodating the prisoners in temporary shelter during the outbreak of an epidemic disease. Even then, it was realized that the correct way to treat such an outbreak is temporary prisons and not the leaving un-tested prisoners free.
Enforcing this legally viable option, the age of the prisoners and other factors must be considered while accommodating prisoners. The meager sanitation must be looked into and adequate numbers of sanitizers and masks must be made available. Further, a lot of rumors and confusions will lead to more prison riots as happened in Kolkata, but that can be prevented by sharing all the requisite information with the inmates and that too, timely. Looking after the psychological/mental affects on the prisoners due to restrictions on outsiders can be addressed by arranging for telephonic and video call service.
Although the option was earlier considered by Punjab, it now has lost its relevance and started releasing prisoners instead after the SC judgment. It is pertinent to realize that this is the ‘only’ solution as against an option considering a national lockdown, the health care system of India and the lives of so many people.
We must also make sure that while arresting people, their test is done so that it doesn’t spread to other detainees as again, the proximity in detention is less.
At the brink of Stage 3 of Covid-19, we need to measure all the steps that we take.
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