Bombay High Court
Sudha Dwivedi vs The State Of Maharashtra And Ors on 29 April, 2021
Bench: G. S. Kulkarni
4-SMP.1.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
SUO MOTU PUBLIC INTEREST LITIGATION NO. 1 OF 2021
High Court on its Own Motion } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
INTERIM APPLICATION NO. 1300 OF 2021
IN
SUO MOTU PUBLIC INTEREST LITIGATION NO. 1 OF 2021
People's Union for Civil Liberties }
and Anr. } Applicants
In the matter between
High Court on its Own Motion } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
INTERIM APPLICATION NO. 1339 OF 2021
IN
SUO MOTU PUBLIC INTEREST LITIGATION NO. 1 OF 2021
Mrs. Sudha Dwivedi } Applicant
In the matter between
High Court on its Own Motion } Petitioner
versus
State of Maharashtra and Ors. } Respondents
Mr.A.A.Kumbhakoni-Advocate General with
Mr.Deepak Thakare-APP for State.
Mr.Mihir Desai-Senior Advocate with Mr.Vijay
Hiremath, Ms.Devyani Kulkarni and Mihir Joshi
for the applicants/interveners in IA/1300/2021.
Mr.Ranjit Ajit Agashe for the applicant/proposed
intervener in IA/1339/2021.
Mr.Vijay Raghavan-Professor of Tata Institute of
Social Science present.
Page 1 of 11
J.V.Salunke,PS
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4-SMP.1.2021
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- APRIL 29, 2021
PC :-
1. Mr.Kumbhakoni, learned Advocate General for the State
of Maharashtra has placed before us a brief note regarding the
suggestions given by Peoples' Union for Civil Liberties, the
intervener. The note is taken on record.
2. We have read the note in between the lines. Although
steps are reported to be taken in the right direction, there are
certain grey areas and we consider it appropriate to issue
directions in relation thereto, at a later part of this order.
3. On the date a coordinate Bench of this Court had
initiated this suo motu PIL petition, i.e. 16th April 2021, it
noticed from reports in the print media that almost 200
inmates of correctional homes, all over the State, had tested
positive for COVID-19. As on 18th April 2021, the number had
risen to 241 and as on yesterday, the number is 244. The rise
in the number of positive cases has to be arrested. We record
the submission of Mr.Kumbhakoni that the staff at the
correctional homes could be responsible for such rise. He has
referred to the fact that while as on 19 th April 2021, 97 staff
had tested positive, as of yesterday, such number has
increased to 117. This is one area of concern which needs to
be addressed.
J.V.Salunke,PS
4-SMP.1.2021
4. Mr.Kumbhakoni has also submitted that there are 26
inmates, who have been found entitled to release on parole,
but they are not so willing, having regard to their considered
opinion that the correctional homes are more safe and secure
than the locality where such inmates are likely to reside upon
release.
5. Responding to a query of the Bench as to whether the
data on crime rate post 13th April, 2021 is available or not,
Mr.Kumbhakoni submits that at the end of each month, the
records are updated and that the crime rate post 13th April
2021 would be available for presentation before the Court in
the first week of May, 2021.
6. Appearing on behalf of the intervener, Mr.Mihir Desai,
learned senior advocate has submitted that 3 (three) basic
issues need to be dealt with at this stage, viz. (i) de-
congestion of the correctional homes; (ii) health concerns;
and (iii) facilities for interaction/communication from the
temporary prisons.
7. In regard to de-congestion, Mr.Desai has contended that
the High Powered Committee (HPC) constituted by the
Supreme Court, by order dated 23rd March 2020 in Suo Motu
Writ Petition (C) No. 1 of 2020, had met sometime in the
middle of last year and perhaps, there has been no further
meeting since then. He contends that after release of a
substantial number of inmates from the correctional homes
pursuant to the recommendations of the HPC, new inmates
have been lodged and that a procedure ought to be adopted
J.V.Salunke,PS
4-SMP.1.2021
to identify those new inmates who could be released on
interim bail/emergency parole. He has, accordingly, prayed
that the HPC ought to be directed to meet to facilitate de-
congestion of the correctional homes by issuance of further
guidelines.
8. Dealing with health concerns, Mr.Desai contends that the
State ought to be directed to provide new/fresh masks to the
inmates of the correctional homes at regular intervals so that
the virus could be kept at bay. Continuing his argument on
health concerns, Mr.Desai also submits that the inmates, who
are eligible for vaccination, should be vaccinated and trained
staff should be deployed at the jail hospitals, since taking the
inmates out of the correctional homes for vaccination could
put them to a greater risk of being infected by COVID-19.
9. On the issue of facilities for interaction/communication
between the inmates of the temporary prisons and their
family members, Mr.Desai contends that the same system, as
is prevalent in the correctional homes, should be introduced
to uplift the spirit of such inmates.
10. Before concluding, Mr.Desai urged that although the
Government could make 36 temporary prisons functional last
year, the same figure is yet to be achieved and sought for
directions to the State to arrange for further temporary
prisons.
11. Professor Vijay Raghavan, a criminologist associated
with Tata Institute of Social Sciences, also addressed us. He
J.V.Salunke,PS
4-SMP.1.2021
referred to overcrowding and congestion at the correctional
homes and while referring to release of more than 10,000
inmates last year, iterated that the HPC needs to meet more
regularly for identifying categories of inmates who could be
released on interim bail/emergency parole.
12. The second point raised by Professor Raghavan is that
the Undertrial Review Committee ought to recommend release
of undertrial prisoners in terms of the Standard Operating
Procedure (SOP) that has been prepared by the National Legal
Services Authority (NALSA), a copy whereof has been shared
with us.
13. The third and final submission of Professor Raghavan
was that undertrial prisoners, who do not possess Aadhar
Cards, should also be vaccinated.
14. Responding to the submissions of Mr.Desai and Professor
Raghavan, Mr.Kumbhakoni did not seriously oppose the
suggestion that the HPC should meet more regularly for
identifying inmates of correctional homes, who could be
released on interim bail/emergency parole.
15. Regarding the facilities provided for proper health and
medi-care are concerned, Mr.Kumbhakoni submits that masks
are available in abundance and that the correctional homes
have been provided with the same. In any event, since a
concern has been expressed by Mr.Desai, it shall be ensured
that an inmate is not made to wear the same mask over and
over again.
J.V.Salunke,PS
4-SMP.1.2021
16. Insofar as vaccination is concerned, Mr.Kumbhakoni
submits that the policy of the Central Government, requiring
an individual who wishes to be vaccinated to produce any of
the specified documents for the purpose of maintenance of
appropriate data, viz. Aadhar Card, PAN Card, Driving Licence,
identity card, etc. has to be complied by the authorities of the
correctional homes and if indeed the Court is of the view that
any inmate, who does not have an Aadhar Card or an inmate,
who is a foreign national and obviously would have no Aadhar
Card, is to be vaccinated, the Court may provide for the same
by issuing appropriate directions.
17. In regard to interaction of/communication by the
inmates with their family members, Mr.Kumbhakoni submits
that 40 new smart phones have been purchased and provided
to the heads of the temporary prisons for the purpose of
enabling the inmates of such temporary prisons to talk to
their family members.
18. Having bestowed our anxious consideration to the
concerns flagged by Mr.Desai and Professor Raghavan and the
response thereto by Mr.Kumbhakoni, we pass the following
order:
(i) In view of the rapid surge in COVID-19 positive
cases during the second wave of the pandemic and
death of a convict and two staff members, the need
to de-congest the correctional homes cannot be over
emphasized. We have recorded in our previous order
dated 20th April 2021 that the inmates, who were
J.V.Salunke,PS
4-SMP.1.2021
released earlier pursuant to the recommendations of
the HPC, have not been called back and that
overcrowding in the correctional homes is because
of lodging of new undertrial prisoners/convicts. It is
in view of such a development that we consider it
appropriate to request the HPC, chaired by the
Senior Administrative Judge of this Court, to meet at
least once before the ensuing Summer Vacation for
issuing fresh guidelines on such categories of
inmates, who could be released on interim
bail/emergency parole to further de-congest the
correctional homes, and to direct the correctional
home authorities to identify those inmates prima
facie eligible for release in accordance therewith so
that appropriate applications could be laid before the
relevant magistrate/administrative authority for
consideration. We are conscious that the
recommendations of the HPC have been upheld by
the Supreme Court, but considering that the
correctional home authorities are now faced with
newer challenges, the HPC may, in its wisdom,
identify such further categories of inmates, who
could be released in furtherance of the avowed
object of reducing the problem of over-crowding.
(ii) We express satisfaction with regard to the
number of tests (64,000+ tests, as reported) that
have been conducted in the correctional homes.
However, having regard to the circumstance that
rather than the inmates, it is the staff who could be
J.V.Salunke,PS
4-SMP.1.2021
contributing to the spread of the infection in the
correctional homes, we direct the correctional home
authorities to devise ways and means for regulating
the entry of staff in the correctional homes, at least
for the next three weeks which, as per available
reports, are very crucial for the entire country. We
do not wish, for the present, to indicate the
regulatory measures that ought to be introduced
and pursued and leave it open to the correctional
home authorities to apply their mind and give shape
to their ideas so that the inmates do not run the risk
of being infected by reason of close
interaction/mixing with the staff of the correctional
homes.
(iii) If indeed any inmate is either not willing to
leave the correctional home finding it to be safer
and more secure than the locality where he would
ordinarily reside upon being released, it would not
be wise to compel such inmate to obtain a release.
We direct that accepting release on interim
bail/emergency parole must be left to the free will/
volition of the inmate.
(iv) Although wearing of masks, using sanitizers and
maintaining distancing norms have their own
benefits, the introduction of the vaccine has aroused
new hopes and aspirations and there is no reason as
to why the inmates of the correctional homes should
be deprived of being vaccinated, provided they are
J.V.Salunke,PS
4-SMP.1.2021
eligible therefor. Since we are informed that absence
of Aadhar Card is posing a hurdle in the process of
vaccination, it ought to be decided as a matter of
policy by the executive Government as to what
could be the alternative if a particular inmate is
unable to produce his Aadhar Card or any other
identification card prior to vaccination. Life is much
more precious than production of a plastic card and
the executive Government could be well advised to
frame an appropriate policy, bearing in mind all
attendant circumstances, to ensure that an eligible
inmate of a correctional home is not deprived of the
benefits of the vaccine owing to absence of an
identity card like Aadhar Card. To minimize the risk
of spread of the infection among the inmates, it
would be eminently desirable if arrangements are
made by the correctional home authorities to
conduct the programme of vaccination within the
precincts of the correctional homes.
(v) We have noticed from the note placed by
Mr.Kumbhakoni that as of yesterday, the State could
make 21 temporary prisons functional. Since
lockdown like restrictions are in force in the State of
Maharashtra, institutions like schools and colleges
are not functional. In such view of the matter, we
hope and trust that the correctional home
authorities would make earnest endeavor to
increase the number of temporary prisons at par
with what was available last year.
J.V.Salunke,PS
4-SMP.1.2021
(vi) It has been noticed from the application filed
by Ms.Sudha Dwivedi, the applicant in Interim
Application No. 1339 of 2021, that the correctional
homes do not have adequate number of doctors,
nurses and other paramedical staff. Reference has
been made to Taloja correctional home where only 3
(three) doctors are available who practice Ayurveda.
If indeed that be so, it is a poor reflection of the
State's health and medi-care facilities for the
inmates of the correctional homes, betraying apathy
and indifference to attend to their needs. We are
conscious that it may not be possible for the State
to increase the number of doctors overnight, but we
have no doubt in our mind that the State shall
proceed to ensure that the statutory mandate of the
Maharashtra Prison (Prison Hospital) Rules, 2015
framed under the provisions of the Prison Act, 1894
are complied with as early as possible. If there be
dearth of medical officers, a policy of rotation could
be formulated and pressed into service.
(vii) The State/correctional home authorities are
also directed to consider the suggestions contained
in paragraph 6 of Interim Application No. 1339 of
2021 and place its version on the next date.
(viii) In course of tomorrow, a copy of the SOP
prepared by NALSA shall be made over to the office
of the learned Advocate General by the Associate of
this Bench and in turn the same shall also be
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4-SMP.1.2021
forwarded to the Undertrial Review Committee(s)
[UTRC(s)]. We hope and trust that on perusal
thereof, the [UTRC(s)] shall prepare their plan of
action and have the same placed before us by the
next date of hearing.
(ix) We direct the correctional home authorities as
well as the State to do whatever else is required for
the welfare and benefit of the inmates of the
correctional homes as well as to bring down the
number of positive cases by offering to the inmates'
proper health and medi-care facilities as well as to
arrest the spread of the virus by adopting
appropriate corrective measures, without waiting for
any nudge from the Bench.
19. The aforesaid directions shall be in addition to the
directions contained in the judgment and order dated 2nd July
2020 passed by another coordinate Bench of this Court while
disposing of PIL-CJ-LD-VC-2 of 2020, a PIL petition filed
previously by People's Union of Civil Liberties.
20. The PIL petition shall be listed once again on 6th May
2021 for further consideration when we expect the State to
inform us the steps taken to comply with the directions as
above.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
J.V.Salunke,PS
