The Hon’ble Supreme Court while dealing with the health crisis and lack of medical infrastructure in Prisons and Remand Homes, in order to contain the spread of COVID-19 in prisons and to ensure that the prisoners lead a healthy and dignified life, which is a facet of Article 21 of the Constitution of India, has by its order dated 23rd March, 2020 passed in In Re: Contagion of Covid – 19 Virus In Prisons directed for constitution of a High Powered Committee (HPC) in all States and Union Territories comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, and (iii) Director-General of Prison(s), to determine which class of persons can be released on parole or an interim bail for such period as may be thought appropriate.
The Hon’ble Supreme Court in its order has already laid down few parameters to be considered to release the prisoners on interim Bail/parole, such as, nature of offence, the number of years to which he/she has been sentenced, the severity of offences which he/she is charged with and the stage of trial or any other relevant factor which the Committee thinks appropriate. It must be clarified that the order of the Hon’ble Apex Court is a directory and gives autonomy to the High Powered Committee of the States to determine the category of prisoners who shall be eligible to be released and the aforesaid parameters shall act as a guiding light to help them in ascertaining the same.
In this connection, it is pertinent to laud the efforts of various High Powered Committees of other States to demonstrate their seriousness in taking up the issue of the release of prisoners. The efforts made by the High Powered Committee of Maharashtra should be lauded since it had promptly classified the category of prisoners that could be released and had released approx. 50% of its prisoners in 2020 to contain the spread of Covid–19 infection.
The High Powered Committee of Delhi has also classified the prisoners that can be released on interim bail/parole to decongest the prisons. It has also undertaken initiatives like setting up of isolation cells and provision for double masking, ie., one surgical mask and a cloth mask is being provided, rapid tests are being conducted inside the jails and has issued direction for initiation of vaccination drive at the earliest for the inmates and the jail staffs.
The State of Uttar Pradesh which has the highest number of undertrial prisoners as per the report of the National Crime Record Bureau (NCRB) and was conscious of the threat that Covid-19 posed to the prisoners and therefore, immediately classified the prisoners that could be released on interim bail/parole and released the same in 2020. The HPC of Uttar Pradesh has again displayed its commitment towards the gravity of the pandemic in the prisons and has re-released the prisoners that were released last year in compliance with the order dated 7th May, 2021 of the Hon’ble Supreme Court in Re Contagion matter.
The proactive step of Hon’ble Gauhati High Court in releasing foreign prisoners in the pandemic is commendable since it displays their equalizing approach towards the health of foreign prisoners vis-a-vis local prisoners.
Now coming to the deplorable state of affairs in Bihar, the Prison Department of Bihar was quick enough to constitute the High Powered Committee (HPC) through a notification dated 24th March 2020 as an eyewash in compliance with the order of the Hon’ble Supreme Court. However, the High Powered Committee of Bihar, in past one year has not undertaken any exercise to determine the class of prisoners that can be released on parole/interim bail, despite there being a steep rise in the number of Covid-19 infections in the second wave and the impending third wave. It has been more than a year since the passing of the order of the Hon’ble Supreme Court wherein a plea was taken on 13th April, 2020 by the State of Bihar that the prisons of Bihar are free of Covid-19 and therefore, there is no need to release the prisoners.
The fact that not a single prisoner so far has been released by the High Powered Committee of Bihar is further highlighted in the report of Bihar State Legal Services Authority which has conceded that the applications for release of prisoners are pending before the High Powered Committee of Bihar.
The High Powered Committee of Bihar has miserably failed to appreciate the content and tenor of the order of the Hon’ble Supreme Court and perhaps do not consider that the prisoners have a right to lead a healthy and dignified life which is guaranteed even to a prisoner under Article 21 of the Constitution of India. In present times, the rate of infection has spiked at lightning speed in the State of Bihar and the same argument that no infection is found in the prisons of Bihar will hold no water, particularly in view of the fact that most of the jails in Bihar are overcrowded and inmates have a harrowing time while they are in their cells as they do not even have adequate space to take rest.
As a matter of fact, the State of Bihar has the second-highest number of undertrial prisoners as per the report of the National Crime Record Bureau (NCRB) and there is an urgent need to have safety mechanisms in the prisons of Bihar in view of the high rate of Covid-19 infection. What is highly surprising is that there is absolutely no reliable data available in connection with the infection rate in the prisons of Bihar and there is no latest data on the occupancy rate in the prisons of Bihar. The website of the Prison Department of Bihar is outdated consisting of data of 2015 and that, too, is gender-specific and does not specify the category of prisoners lodged in different jails of Bihar. Further, the website of the Inspectorate of Prisons, Bihar does not throw light on any activity that has been undertaken pursuant to the orders of the Hon’ble Supreme Court and in no way addresses the health issues of the prisoners in the pandemic.
The Covid–19 situation in the State of Bihar at present is depressing and the State has been put under a lockdown. There have been newspaper reports of dead bodies floating in waters of Ganga which clearly depicts the high mortality rate in the State due to Covid–19. However, still, the High Powered Committee of Bihar has not woken up from its slumber to make a significant contribution in controlling the spread of infection in the prisons of Bihar nor has it tried to look left or right at other States who have been releasing its prisoners ensuring their good health and contain the spread of further infection. While other States have acted in the right earnest, the prisoners of the State of Bihar have not been treated with parity and have been exposed to the deadly virus, which could eventually take their lives. They equally deserve to have a healthy and long life like any other citizen in the Country and cannot be discriminated against vis-a-vis prisoners of other States who have been released on interim bail/parole. There is a dire need to address the health concern of those who are solely dependent on the State machinery for their survival.
Right to life under Article 21 of the Constitution of India embraces good health for an undertrial/convict who is cut off from society, and they cannot be discriminated against in access to health care facilities. The need of the hour is adoption of a sensitive approach towards those prisoners who are mentally challenged/ terminally ill/ handicapped/ pregnant women/ children of the inmates since they form the most vulnerable group amongst the prisoners. The prisons of Bihar should make arrangements for proper testing facilities and separate isolation cells and availability of vaccination to control the spread of infection amongst the inmates and the staff of the prisons. The prisons should provide basic welfare measures, the least that can be done in the present situation such as constant supply of face masks and hand sanitizers to the inmates.
Is it not the responsibility of the State of Bihar as the sovereign authority to take a stock of the situation in the jail premises and assess the current situation of Covid-19 in different prisons of Bihar? There are absolutely no details available on the website of the Prison Department of Bihar which can give a clear picture of the number of health care staff or availability of preliminary health care facilities in the jail campus in different prisons of Bihar. The High Powered Committee of Bihar should immediately take remedial measures, determine the category of prisoners that can be released on parole/ interim bail as per the direction of the Hon’ble Apex Court, and should ensure that they are released at the earliest and not wait for a catastrophe to fall in the jails of Bihar.
About the Author, Prachi is a practicing advocate at the High Court of Judicature at Patna and a graduate from National Law Institute University, Bhopal.
Criminal Law Research & Review 