Are States Doing Enough to Decongest Jails Amid COVID-19 Threat?

Most have not really examined which prisoners should be released & have not arranged transport for those released.

The Supreme Court has directed States to look into decongestion of jails to prevent spread of coronavirus.

(Photo: Erum Gour/The Quint)

Following the Maharashtra State Prison Department’s decision to release undertrial prisoners on bail to decongest prisons, Meera* (name changed to protect identity) was released from Byculla prison in Mumbai on 1 April.

Because of the nationwide lockdown, however, she had no means to return home. A woman jailor kindly let her stay at her own home that night, but when she tried to take her to a Mumbai shelter home for women, they were told she would need a certificate from a designated hospital, which again, was inaccessible because of the lockdown.

Finally, another inmate who was released the next day agreed to take Meera with her to her own home – which meant Meera wouldn’t see her family and children even though she’d been granted bail for 45 days.

Meera’s story – conveyed to The Quint by Prayas, a social action project of the Tata Institute of Social Sciences (TISS) – is a cautionary tale of how even well-intentioned orders of the courts and government authorities can be frustrated because of a failure to account for problems on the ground.

In this case, it was the fact that even though, at the behest of the Supreme Court, several states have passed directions to prisons to release certain kinds of prisoners to decongest their jails and combat COVID-19, most states have failed to take any action to ensure they could get home in the midst of an unprecedented nationwide lockdown.

This required the apex court to pass a new order on 7 April directing states and UTs to ensure through their Director General of Police that all prisoners released as part of these measures are given safe transportation, or alternatively, are allowed to stay in a temporary shelter home during the lockdown.

The situation also highlights the failure of many states which hadn’t even taken the steps taken by others for the release of prisoners from overcrowded jails, and for whom the issue of transportation itself had not yet arisen.

The Supreme Court’s Direction to Decongest Jails

On 16 March, a bench of the Supreme Court headed by Chief Justice SA Bobde took suo motu cognisance of the risk of the spread of COVID-19 in jails across the country because of overcrowding. States and Union Territories were told to submit reports to the court about their plans for ensuring the pandemic would not spread in prisons within their jurisdiction.

After receiving the reports, the judges found that several steps for isolation, quarantine, and treatment of possible coronavirus patients had been taken in many States and UTs. However, the problem of overcrowding continued. National Crime Records Bureau (NCRB) data showed that the occupancy rate in Indian prisons – the number of people lodged in jails in comparison to the capacity of the jails – was 117.6 percent.

In some states like Uttar Pradesh, the occupancy rate is even higher at over 175 percent, while some jails like Tihar Jail have an occupancy rate of over 200 percent.

A week later, on 23 March, the apex court passed an order directing the setting up of High Powered Committees in each state/UT, comprising the Chairman of the State Legal Services Committee, the Principal Secretary (Home/Prison) and the Director General of Prisons, to determine which classes of prisoners could be released on parole (if convicts) or interim bail (if undertrials).

How Have the States/UTs Been Complying With This Direction?

While it appears that most states and UTs have set up the High Powered Committees to make decisions on this issue, many have not made the minutes of their HPC meetings public or made their decisions accessible.

For instance, Jharkhand’s HPC decided that it will not release any prisoners as there had been no cases of infections in the state’s jails. This decision, the minutes for which are not available, was made even though, according to the NCRB’s Prison Statistics 2018, Jharkhand has a prison occupancy of 128 percent.

Other states that have decided to release prisoners but have only communicated this to the media rather than making the decisions public include Uttarakhand (855 prisoners on parole), Assam (41 prisoners from Tezpur jail), Odisha (1,727 prisoners), and Gujarat (1,200 prisoners).

Among the 13 states whose decisions could be found (whether through minutes of meetings of their HPCs or orders from their high courts/home departments), it appears that few of them have gone any further than the example offered by the Supreme Court of who could be released in its 23 March order.

The apex court had suggested that one possible basis for deciding to release prisoners on a temporary basis was where the maximum punishment for the offence the person was accused/convicted of, is seven years or less imprisonment.

In some states like UP or Maharashtra, this means a significant number – 11,000 prisoners in both of them, for example – while in others like Jammu and Kashmir it has meant only 108 prisoners released. Whether in those states or in others, the proportion is still not high enough to bring the prison occupancy rate down to 100 percent.

For the most part, this seven-year imprisonment threshold has been followed to the letter, with the only modification being a clarification that this will not apply to foreign nationals or cases where the offence in question relates to drugs, child sexual abuse, rape or sexual assault.

Some states like Delhi and Chhattisgarh have said that even if this criterion is fulfilled, they also have to have spent a certain minimum time in jail before being eligible for release (generally around 1 month).

Only a few states’ HPCs or courts have looked to release a wider range of prisoners, or expand the scope of the parole/interim bail orders, or looked to ensure cases that might fall through the cracks were also considered.

• Haryana, for instance, decided to not just grant parole/interim bail on the seven-year basis but also to extend existing parole orders by four weeks and grant parole for all convicts above the age of 65 (unless they were convicted for drugs, rape and child sexual abuse cases).
• Meghalaya decided to extend existing bail/anticipatory bail granted to undertrials and accused before the lockdown, to ensure they didn’t have to come as fresh inmates to the jails at this time.
• J&K not only expanded the list to include people who had been in jail for 10 years (8 for women), not including drug/rape/child sexual abuse cases, as well as those who were old or suffering from a serious illness, but also noted that there should be a release of those who had completed their sentences but were still in jail due to non-payment of fines.
• Delhi has set up a scheme for the remission of sentences that are close to their end.

Among those whose decisions are publicly available, Rajasthan is the only state that has decided not to release any prisoners, but has laid down detailed guidelines for hygiene and sanitation, and transferred inmates to other jails to ensure social distancing can be maintained.

Failure to Take Into Account Issues Like Transport

However, even where states had passed detailed orders for release of prisoners, only Delhi had formally considered the issue of transportation of prisoners to their homes, with nodal officers of the Delhi Police instructed to ensure safe transportation.

In Maharashtra, no formal orders were passed by the HPC or the high court, but Vijay Raghavan of TISS’ Prayas told The Quint that efforts were being made to facilitate their return home. These include issuing e-passes to the families of the released prisoners if they are willing to come and pick them up, issuing e-passes authorising their travel to the prisoners themselves or getting the police to take them home.

However, the efficacy of such measures has been inconsistent, and in places like Latur, Mumbai and Thane, the prison authorities are asking Prayas to help transport the prisoners to their homes.

In Jammu and Kashmir, the J&K Legal Services Authority has made arrangements with the Principal Secretary to arrange for transport of prisoners to their homes. However, the number of prisoners up for release is quite low, so this has not yet been a logistical difficulty.

Other States/UTs have made little or no efforts to ensure transportation of prisoners, after having failed to consider this as part of the orders.

Telangana, in fact, has gone so far as to decide to wait until 14 April before the government there confirms which prisoners will be released – one of the reasons for which is to ensure less difficulty in transporting the prisoners, an official source told The Quint.

The lack of transportation was brought to the Supreme Court’s notice during a hearing on the matter on 7 April, with amicus curiae (the court’s appointed expert) Dushyant Dave informing the judges that prisoners who have been released according to the directions of the HPCs are stranded as they have no means to reach their homes.

Attorney General KK Venugopal submitted that this was “very unjust” and that States/UTs had to take measures to resolve this failing.

The apex court agreed and suggested that the Centre issue directions to the states/UTs to this effect under the Disaster Management Act. It also directed states/UTs to ensure safe transportation of released prisoners and the availability of temporary shelters during the lockdown.

Is This Enough?

“Today’s order of the court, saying the state police and prison departments have to ensure released prisoners would reach home safely is a very good order and is, in fact, one of the suggestions we made in our intervention application,” says Vijay Raghavan of TISS’ Prayas project, “but there are still important issues left.”

TISS is part of the National Forum for Prison Reforms, which filed an intervention application in the case before the Supreme Court through its convenor, advocate Ajay Verma. Some of the submissions made in this application by the Forum, which also includes other prominent human rights organisations like Human Rights Law Network (HRLN), International Bridges to Justice (IBJ) and Multiple Action Research Group (MARG), were referred to by amicus curiae Dushyant Dave during his submissions to the court on 7 April.

Raghavan explains that in addition to the measures for safe transportation of prisoners, states/UTs will also need to provide the prisoners with “ration kits or some minimum cash amount” upon their release as it is unclear what the situation will be back at their homes.

He also suggests they should be given a certificate of good health so that they are not harassed back at their homes. “We know of one case at least here at Prayas, of a prisoner who reached home and was not allowed by the villagers to enter the village, and so we had to arrange for him to go to a shelter home,” he says.

Over and above this, there is also a need to expand the categories of prisoners who could be released on bail/parole, particularly those suffering from serious ailments, aged, persons with disabilities as their immunity levels are low. Raghavan points out that this is crucial for two reasons:

• First, if there is a case of coronavirus in prison, they are likely to be impacted the most.
• Secondly, looking after these kinds of prisoners with or without a coronavirus outbreak is difficult at this time as the prisons are currently “understaffed and overworked and stretched because of social distancing measures.”

Raghavan also argues that if there is no expansion of the categories of prisoners who can be released, this will mean there will only be a release of 10-15 percent of the prisoners in state/UTs jails, or maybe 20 percent at best (in Maharashtra, for instance).

However, this would not be sufficient to reduce overcrowding in jails, given the extent of the occupancy rate. The People’s Union for Democratic Rights has also urged similar measures to be taken in a statement, and they argue that to ensure segregation of inmates, maintenance of hygiene and proper medical help, the number of inmates in jails will need to be reduced to not more than 60 percent of capacity.

It remains to be seen if the Supreme Court will agree to the need for these directions when it next hears the case on Monday, 13 April. In the meanwhile, one can hope that state/UT governments will make efforts to ensure the transportation of prisoners.

EDITORIAL NOTE: An earlier version of this article stated, based on the Intervention Application filed by the National Forum for Prison Reforms, that the Forum had worked with amicus curiae Dushyant Dave in relation to this case. However, Mr Dave has refuted this assertion in the following statement:

“I strongly object to any claim that as Amicus Curie, I am working closely with any NGO or organisation including TISS. Claims to that effect are absolutely incorrect and I deny that stoutly. Yes, hundreds of persons have sent me suggestions and I have studied them to enlighten myself about the Matter and I am grateful to them for it. But beyond that I have not had any contact with them. As Amicus Curie appointed by the Honble SC, I have to work independently and objectively and I have done that sincerely.”