Aryan
Singh Chouhan, author of this article is a fourth-year student at Institute of
Law, Nirma University, Ahmedabad. His main interests lie in arbitration and
corporate law.
Introduction
Article 21 of the Indian Constitution
says that every person has a right of protection of life, but often the people
who are imprisoned are ignored with the blessing that our constitution framers
had given to us.
Now, in the difficult time where the
world is fighting the novel coronavirus, one question that is very important
and needed to be answered is, what is the rights and safety of the persons, and
in the time where social distancing has to be practised, does this social
distancing shall also be followed in the overcrowded prisons of India and does
the prisoners be released on bail, so that an effective social distancing can
be followed in prisons. One of the important aspects of social distancing
is to maintain a distance between people, but the sad reality is that the
prisons in India are densely over-crowded.
The issue of overcrowded prisons was
dealt by the apex court in Re-Inhuman Conditions in 1382 prisons v. State of
Assam[1], where the basic question that the
court had to deal with was the problem of overcrowded prisons in India and for
to issue that problem the apex court give the directions to the legislature
to form a committee on prison reforms”[2]
Also, the court said that the basic question that the committee must decide is about the parole of under trial prisoners and also suggestions for open prisons in India.[3]
The centre following the
recommendations of the committee issued a report for overcrowding in 2019 and
according to data given by the centre in its report, it stated “that the
prisons of India were overpopulated at 115% that is till 2017 the total
capacity of Indian prisons to hold prisoners was 391,574 but the prisoners
living there were 4,50,696. Whereas the under-trial prisoners constitute to
3,08,718 of the total numbers of prisoners in prison. The report clearly
indicated that the prisons of India are clearly over-crowded.”[4]
In its report, the centre focused on the
release of Under Trial Prisoners on bail and also said that “for the release
of under-trial prisoners, the legislature had introduced various legal remedies
like Section 436-A in CrPC or the concept of plea bargaining.”[5]
Section 436-A[6] of
CrPC says that any under trial prisoner (not for any offence where the
punishment includes the death punishment) can be given bail and also if the
under-trail prisoner had completed the half term of maximum punishment in
prison then he is liable to be given bail by courts.
Despite the legal provisions given, the results were not satisfying, and Indian prisons are still facing the problem of overcrowded prisons, which was still bearable till the time, the world had not encountered with the pandemic of COVID 19.
Action taken for the protection of
Prisoners
The essential feature of survival in
this pandemic is to practice an efficient social distancing, and worried
on the overcrowding of prisons, “the apex court Suo Moto took the matter in
their own hands and filed a civil writ petition for the safety of prisoners in
prison and whether or not they should be given parole or not”.[7]
The prisons are overcrowded in India
and keeping in the grave situation, the supreme court ordered on 23rd March
2020 that in all the states and UTs on India there shall be made a
separate High Powered Committee, which will decide the criteria, as
to which class of prisoners can be released on bail in respective states and
UT’s”[8] and also suggested that prisoners
who are serving the sentence for maximum 7 year period can be released on bail
and the under trial prisoners may also be released if they are charged for the offence
for which death penalty needs not to be given.[9]
The High-Powered Committee was ordered
to follow the guidelines framed in Arnesh Kumar v. State of Bihar[10] where the court stated that: -
· “The arrest of people must not be arbitrary, and it must be done when
the police had a reasonable belief that the arrest of accused is necessary, in
that case only, the accused shall be arrested.
· The arrest must be in accordance with the checklist provided in section
41 CrPC.
· The report of arrest must be given to the magistrate and magistrate would then give the detention authorization.”[11]
So the court in Arnesh Kumar case had
the view that unnecessary arrest must not be done by the police, because, the
arrest of a person deeply affects the behaviour of society towards that accused
and unnecessary detention would lead to unfair social discrimination and the
high powered committee was required to follow the said recommendations, so that
the overcrowded prisons can be treated effectively and there can be an
effective social distancing practised in the prisons.
Release of Foreign Prisoners
The release of foreigners who are serving in prisons was discussed in
detail in the case Supreme Court Legal Services Committee v. Union of India & Others[12] wherein the apex court held
that “every foreigner who is detained and who is yet to be deported, in that
condition, if the prisoner had been detained for a period of three years, then
such person can be released on bail by the court, provided they furnish the
required surety”[13].
The apex court was asked to reduce
the term decided by the apex court in Supreme Court Legal Services Committee
from three years to two years and the apex court in the Suo moto writ petition,
filed for protection of prisoners gave an order on 13th April
decided that the guidelines given earlier judgment by apex court can be made to
certain changes in the time of such pandemic and changed the time limit as
asked to two years from three years.[14]
The supreme court had taken a liberal approach at the difficult times,
wherein they had put the safety of prisoners as a priority, by suggesting that
prisoners shall be released on bail, wherein also maintaining a balance by not
allowing the release of prisoners who were charged with more heinous crimes.
Conclusion
The main element to fight the pandemic is to practise social distancing,
but until the overcrowded prisoners are not managed efficiently, till then, the
safety of prisoners are at stake.
To overcome this problem, there are
different ways available with the governments, such as:-
1. Decongestion of
Prisons:- The government of Bihar and Delhi had said that they will not release
prisoners on bail, but rather they shift the prisoners from the overcrowded
prisons to the less congested prisons. This approach can be highly effective,
wherein a maximum number of prisoners in a particular prison to be decided and
then the rest of prisoners, to be shifted to less populated prisons, so that
proper social distancing can be followed.
But this remedy is available only in fewer
states, as in most of the states, every prison is overcrowded and thus they
cannot practise this process of decongestion.
2. Release of Under
Trial Prisoners- The high powered committee of almost every state
had with the apex court’s suggestion, that under trial prisoners, (who are not
charged with an offence where the death penalty can be given ) can be released
on bail so that prisons are not overcrowded.
3. Release of Over
Aged Prisoners:- Another step that the government can take is to
release, the prisoners on bail who are above the age of sixty years, so that
they are safely evacuated from the prisons and they can isolate themselves and
practise social distancing, so that they can protect themselves.
4. Release of
Prisoners serving sentence less than seven years- Another important
step that the legislature can take is to release the prisoners who are
convicted for a sentence less than seven years, so that, prisons can be made
less populated and proper social distancing can be followed and prisoners can
be protected.
It is important, to punish the violators of the law, but only because they are in prison, it does not take their Right to Life given to them by Article 21 and thus, every state must take every possible step, to protect the prisoners and ensure that enough safety measures are taken and that social distancing is practised and the prisons who are overcrowded must be decongested.
Also read - What All Rights Does a Prisoner Hold in India?
[1] [2016] 993 AIR (SC).
[2] ibid.
[3] ibid.
[4] Ministry of Home Affairs: Government of India (No.
VII-11016/20/2016-PR).
[5] ibid.
[6] Code of Criminal Procedure 1973 , s 436-A.
[7] In re: Contagion of covid 19 virus in Prisons( Supreme Court of
India 16 March 2020).
[8] In re: Contagion of covid 19 virus in Prisons( Supreme Court of
India 23 March 2020).
[9] ibid.
[10] [2014]2756AIR(SC).
[11] ibid.
[12] [1998]2940AIR(SC).
[13] ibid.
[14] In re: Contagion of covid 19 virus in Prisons( Supreme Court of India 13 April 2020).
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