Introduction

The impact of the COVID-19 pandemic has increased the humanitarian crises around the world and prisoners are one of those who are worst affected by this global pandemic. In these unprecedented times, the prisoners have become vulnerable sections of society. In the meantime, the only meaningful action which they can do is to follow medical directives issued by the government to safeguard themselves. One such directive is to maintain social distancing order to protect themselves from this dreadful virus. Whereas, social distancing can only be used as a method where there is space enough to bring it into effect. In the over-crowded prisons in India with numerous prisoners living in congested cells with pathetic living conditions, it becomes difficult to maintain social distancing measures, quarantine and basic hygiene facilities to prevent the spread of the virus.  

Over-Crowded Prisons

Over-crowded prisons in India have always been a hurdle in government’s bid toward prison reforms. The National Crime Records Bureau, report indicate an increase in occupancy rate to 117.6% in the year 2018, which shows that Indian prisons hold 17.6% more prisoners than it is capable to hold. These numbers would have certainly risen over the past two years since the report was released in 2018. Whereas, in states like Uttar Pradesh and Delhi the occupancy rate of prison is as high as 176.5% and 154% respectively. According to a recent report, 805 positive cases of COVID-19 have been detected inside Indian Prisons. In addition to the prisoners, several prison-staff has also been tested positive for COVID-19. For instance, a prison in Jaipur recorded 129 cases which included the prison-staff among those infected. Seeing the current situation, Indian prisons with their poor healthcare facilities and over-crowded spaces are at high risk of becoming the new centre for the spread of COVID-19.

Lack of Prison Reforms

The lack in prison reform in India has led to implications which will have a resounding effect nationwide in the form of a breeding ground for COVID-19 cases. The Indian Prison System accommodates thousands of people in close confinements with several prisoners at once placed in a compact cell with little or no ventilation and complete disregard of hygiene and health of prisoners. This kind of prevailing conditions can further add to the existing problems of prisoners.

The International Convention on Civil and Political Rights, 1996 (ICCPR) is one of the most important instruments protecting the rights of an individual around the world. Article 6 of the ICCPR states, everyone has the right to life and no one shall be deprived of his life.  Article 9 of the ICCPR, provides the right to liberty and security to every person. Further, Article 10 of the ICCPR states, any individual deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Hence, any danger to the health and lives of the prisoners because of the spread of the transmissible disease in prison and failure of a state in taking effective steps towards the avoidance of the spread of diseases would violate the aforementioned rights of a prisoner. Since India has also ratified the ICCPR, the Indian government is under obligations to take appropriate steps to prevent the spread of the virus in prisons.

On the other hand, Section 4 of the Indian Prisons Act, 1894 (hereinafter “the Act”), provides for sanitary accommodation facilities to prisoners. Section 7 of the Act provides temporary accommodation for prisoners during the outbreak of the epidemic disease in the prison to keep them safe. Section 37 states that the Jailer without any delay needs to inform the Medical Subordinate if any prisoners are sick or suffering from any contagious disease. Furthermore, The Model Prison Manual, 2016, provides extensive guidelines for situations like a pandemic in India. According to the guidelines, during the outbreak of a pandemic overcrowding must be avoided in cells, every infected prisoner must be kept in isolation wards and there should be the facility for proper treatment of patients. Even after such legal provisions, the prisoners in India continue to suffer and face numerous problems in prisons. It’s important to understand that prisoners are also equally important and the government needs to take stringent action to implement the proper measures to protect the rights of prisoners.

The Hon’ble Supreme Court of India in CESC Ltd. v. Subhas Chandra Bose held that right to health is a fundamental human right guaranteed to every individual under Article 21 of the Indian constitution. Still, the right of prisoners to get proper health care always is being denied which imposes a great risk on their right to life. In D.B.M. Patnaik v. State of Andhra Pradesh, the Supreme Court stated that mere detention does not “spell farewell to fundamental rights”. Hence, any kind of injustice with prisoners during the ongoing pandemic would clearly lead to the violation of their fundamental rights guaranteed under the Indian constitution as they are entitled to same fundamental rights available to the ordinary citizens to a certain extent despite his liberty being constitutionally circumscribed.

Covid-19 & Indian Prisons 

Realizing the severity of the situation the Apex Court in India took suo moto on 23rd March 2020, regarding the over occupancy of the prisons and directed the state government and Union Territories administration for decongestion of prisons, including the setting up of a high-level panel to determine the category of prisoners who can be released on interim bail or parole. Moreover, the court directed the quarantine facilities for new prisoners, creation of isolation wards, scanning of every individual at entry and exit points and sanitization of the jail premises.

Many states of India, such as Andhra Pradesh, Chattisgarh, Uttar Pradesh, Bihar, Maharashtra, etc. have released prisoners on bail or parole after deliberation upon different criteria’s set by the high-level panel for their respective states. Moreover, the entry and exit of the health-professionals, family members and prison-staff is very high at such places and for instance, contact with one patient in a prison can lead to exponential spread of this disease within and beyond the walls of the prison. Hence, the state needs to address this issue immediately and impose restrictions on prison visits. They can adopt the video conferencing facilities to keep the prisoners in touch with their families. Furthermore, the government needs to take strict action for the implementation of laws and policies regarding the prisoners while protecting their human rights. The prisoners are facing a lot in the present crisis and there is a need for mental support at such time, otherwise, it can adversely affect their mental well-being.

Conclusion

The ongoing pandemic has created many difficulties for the state. However, the Supreme Court of India has played a significant role in controlling the situation by issuing guidelines for the release of prisoners on bail or parole. Still, there are some issues which can create a serious dilemma if the outbreak of COVID-19 takes place in prisons. Moreover, overcrowding reduces the possibility to maintain the social distancing measures in the premises of prison. Therefore, it is clear that prisons in India are not fully equipped to handle the situation of COVID-19 outbreak. It is high time for immediate prison reforms in India to protect the prisoners from another crisis in future. Hence, availability of prison cells, regular medical check-ups and other basic amenities in the prisons needs to be done to maintain social distancing measures and hygienic environment in the jail premises. It is the need of the hour to take appropriate measures to modify the Indian prison system to provide a permanent solution to the vulnerable situation of the prisoners.


About the Author: 

Astutya Prakhar [2019-24] is pursuing B.A.LL.B (Hons) from National University of Study and Research in Law, Ranchi]. His areas of interests are Corporate Finance Law and Securities Law. He is an avid reader of politics, sociology and public policy.

Pritesh Raj [2019-24] is pursuing Bbb.A.LL.B (Hons) from National University of Study and Research in Law, Ranchi. He has a keen interest in constitutional law.

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