RELEASE OF INMATES DURING COVID-19: A SOCIAL CONUNDRUM
In the contemporary time of COVID-19, where havoc has been created worldwide due to the pandemic, the Indian Judiciary has shown its concern for the sacrosanct right of prisoners' health, which has been enshrined under Article 21 of Indian Constitution. The states have secured the prisoners’ rights by releasing a particular class of undertrials and convicts on bails and paroles. The concept of bail can be traced back to 399 BC when Plato tried to create a bond for releasing Socrates out of prison custody. In general words, Bail refers to temporary release of prisoners prior to their conviction whereas Paroles are given in the latter stage and refers to the release of convicts from jails in exceptional circumstances by suspending the sentence of prisoners. In the month of March 2020, the Hon’ble Supreme Court opined in its suo moto cognizance in the matter titled 'Contagion of COVID-19 Virus in Prisons' that all states and UTs to release a certain class of prisoners on bails and paroles till the time normalcy has been regained so that Indian prisons could be decongested to achieve physical distancing norms. In the present article, the Authors will analyze the current legal framework and the scheme for the release of prisoners followed by courts and states in releasing prisoners in order to reduce the impact of contagion in prisons.
Legal Framework of Bails And Paroles
The term bail has per se not been defined under the Code of Criminal Procedure, 1973, yet the code differentiates between the offenses as bailable and non-bailable offences. In order to remove this anomaly, the Hon’ble Supreme Court in the case of Sunil Fulchand Shah v. Union of India defined bail and held that “Bail is security obtained from a person arrested regarding an offense for the purpose of securing his presence during the course of the trial”.
The provisions of Bails are provided under Chapter XXXIII of the Crpc, 1973, which governs the release of undertrials on bails. Sections 437 and 439 of code provides for the application of granting of regular bail by Magistrate and by Sessions and High Court, respectively. Further, section 438CrPC deals with the provisions relating to the grant of anticipatory bail by the Courts of Sessions and High Court. The notion of bails derives its essence from fundamental right enshrined under Art. 21 of the Indian constitution and hence provides the right to reputation to an accused person as well. In this regard, the Hon’ble Supreme Court held that "In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation....". Moreover, an accused on bail can preserve the social cost of confinement and prepare his defense much more effectively. Therefore, it is within the inherent power of the court to decide whether to grant bail to the accused or not, depending on the gravity and facts of the case hence this power shall be used judicially. "It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular."
Technically, the release of convicts is much more a matter of administrative policy of a state than that of judicial discretion as the convicts are subject to state administration as per the seventh schedule of the Indian Constitution. Therefore, jail administration has the power to grant parole to offenders who have served at least a year in conviction. As per rule 1(A) and 19 of The Prisons (Bombay Furlough and Parole) Rules, 1959, the objectives of parole system are allowing prisoners to socialize with their families, maintenance of self confidence within prisoners, to do away with the ill effects of incarceration and to develop constructive hope and interest towards life. Paroles in India are governed by the state rules made under the Prisons Act, 1894, Prisoner Act, 1900 and respective State Good Conduct Prisoners (Temporary Release) Act. These acts prescribe the grounds on which the prisoner shall be released with its prescribed time limit under the act. Such grounds vary from serious illness or death of a family member, marriage of son/daughter, and even for agricultural operations if no family members present to help the prisoner. This period of release shall not be counted as suspension of sentence and will be termed as parole.
Status Quo: Scheme of Releasing of Prisoners
Congestion of prisons against their ordinary capacity has always been an obstacle in achieving the prison reforms. As per the data released by India Justice Report, 2019, the Indian Prisons are reported to be overcrowded by 114% occupancy rate as of 2016. With the increase in COVID-19 cases in India, the Supreme Court noticed the urgent need for prisoners’ rights protection (including both convicted and undertrials). In this regard, suo moto cognizance was taken by the apex court in the matter of safety of prisoners and remand homes, for which states and Union territories were asked to file their reply regarding actions taken by the state. On March 23, 2020, the Supreme Court passed directions to all the State Governments and Union territories for taking steps to reduce the crowd in Jails by releasing the prisoners either on Parole or interim bail. To execute the plan suggested by the Supreme Court, States were ordered to constitute a High Powered Committee, who, along with the help of State legal Service Authority, would categorize the prisoners liable to be released from the Jails. The decision by the court was made in light to decongest the prisons by releasing less- hardened criminals from the prison as the pathetic hygienic conditions of prison escalates the risk of COVID-19 amongst jail inmates.
On May 19, 2020, eight State prisons suffered from COVID-19 cases, and the total number of infected prisoners was at 374, which had been rapidly multiplying. Most of the states which face active hotspots of viruses have taken actions for developing a framework for release of prisoners. On the advisory direction of the apex court to release prisoners,overall seven states and one Union territory namely West Bengal, Odisha, Kerala, Karnataka, Haryana, Goa, Chattisgarh, Andhra Pradesh and Delhi, with the aid and advice of State Legal Services Authority have laid down a common qualification for parole or interim bail for the release of convicts and undertrials facing jail tenure for seven or less than seven year. Out of these, three states (Kerala, Haryana, AndhraPradesh) excluded habitual offenders and six states excluded Prisoners who had committed heinous crimes under special acts such as NDPS, POCSO, etc. from being released from prisons. The report by National Legal Services Authority (NALSA) reveals that over 42,000 under trials and 16,391 have been released from various prisons all across India.Subsequently, many states have formulated policies to regulate the movement and conduct of prisoners outside jails. The strategy of surveillance over prisoners varies from establishing monitoring committees in Uttar Pradesh to keeping the local police stations and SHOs in loop (Delhi). Also, some states such as West Bengal have adopted a detailed method of keeping a track over the movement of prisoners by means of activating staff over different areas and by maintaining daily attendance at Police Station.The question still remains whether the release of a large number of prisoners all over the country could possibly lead to a disaster in society or not?
Impacts and Challenges
The onset of Covid-19 in India has led to various decisions by the State and Central government to prevent rapid transmission of coronavirus. As the Indian States and Union territories were shut down, a preventive step was taken by the Supreme Court to enforce social distancing norms in prisons, by releasing several prison inmates. But, somehow, the court failed to give account for possible repercussions of the decision as it could probably burden society by increasing the crime rate. The standards set by the High Powered Committee for release of prisoners is not considering the prior behavior of the accused and undertrials, before releasing them temporarily on bails and paroles. The single criterion of not releasing hardened criminals is being followed nation-wide as suggested by the apex court, is not sufficient to ensure public safety. Further, some of the Indian Courts are providing bail to the prisoners without any reasonable nexus with the objective of the Bail system. In an instance, Patiala House Court in Delhi had directed the undertrials to download the ‘ArogyaSetu app’ and to keep their GPS and Bluetooth turned on as a mandatory bail condition. Such bail orders have no reasonable nexus with the possibility of fleeing away and non-cooperation of the accused in the investigation. Another challenge which is faced by the decision of the Hon’ble Supreme Court is that even if some jail inmates are released to prevent overcrowding of prisons, there are no detailed guidelines laid down by the apex Court for ensuring proper health conditions of the existing inmates in prisons. Considering the current mechanics of granting bails and paroles, the present surveillance system is not enough to monitor the activity and movement of released prisoners in the society. Therefore, it might endanger the life of innocent citizens by providing a ‘second’ opportunity to the accused to commit an offence. Hence, it is not wrong to suggest that prevailing circumstances might increase the crime rates due to reversal of the incapacitation effect of incarceration.
On the contrary, where society has been put to threat by release of criminals, this fact cannot be ignored that the prisons were in dire need of decongestion up to their normal capacity. After India was hit by COVID-19, the corresponding actions by the prison administrations under the Model Prison Manual Act, 2016 has failed due to overcrowding of prisons. Rule 13.73 of the manual which lays down the procedure to tackle the epidemic situation is impossible to carry out in crammed prisons. In the light of above argument, diluting the number of prisoners was a necessity to maintain their health in the time of epidemic.
Conclusion And Suggestions
In the unfortunate time of pandemic, Indian legal system has proved to be a protector of the fundamental rights of prisoners. Several steps have been taken by the Hon’ble Supreme Court as well as various states and union territories, to ensure safety of the prisoners from the deplorable prison conditions yet the release of prisoners has posed a possibility of serious consequence on the society. Along with the release of prisoners on bails and paroles all over India, states have also taken steps to keep these prisoners under strict and continuous surveillance in the society. However, the grant of bails in the time of COVID-19 raises the question on the effectiveness and objective of the bail system in India.
Despite the steps taken by the authorities, there is a need for a more pragmatic approach towards criteria set by High Powered committees for release of prisoners as well as to maintain a track record of prisoners on bails and paroles. It is necessary to observe the behavioral pattern and good conduct of prisoners in order to release them in a free society. Moreover, there is a need for a more advanced technical support system to keep a close watch on their activities. Along with that, there is an urgent need for taking steps towards establishment of a task force comprising a team of doctors and jail superintendents to bring out immediate reforms in the management of jails. This is because sub-jails which are located outside the cities face the dearth of trained medical professionals unlike Central Prisons. Such task force shall be equipped to provide for quarantine facilities in jail cells conforming social distancing norms. Other emergency services such as central health and medical assistance to the infected prisoners shall be afforded to prisoners within the jail premises. In the hard times of pandemic where the state machinery is on the verge of fall, an effective approach is required to keep a balance between the rights of state subjects and maintenance of law & order in the country.
Most of the doctors are under trained medical officers need specific training to work in prisons, therefore, there are resident doctors in central prisons but not in sub-jails located outside citieThis makes the establishment of such a task force more viable as this task force can serve the purpose by commuting to different sub jails and central jails in the state.
 Urvashi Saikumar, Indian System of Bails - Anti Poor, India. Available at:
http://www.legalserviceindia.com/articles/bail_poor.htm [Accessed 27 May 2020].
 Delhi Prisons Act, 2000, Delhi (Act No. 2 of 2002), s. 2(p).
 2000 (3) SCC 409.
 Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 437.
 Id., s. 439.
 Id, s. 438.
 LalKamlendraPratap Singh v. State of U.P. and Ors., (2009) 4 SCC 437.
 Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240.
 The Constitution of India, seventh sch., List-II, pt. 4.
 Prisons Act (Act 9 of 1894).
 Prisoner Act (Act 3 of 1900).
 Supra note 3 at 1.
 Tata Trusts, “India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid”, ( October 2019). Available at: https://www.tatatrusts.org/upload/pdf/overall-report-single.pdf.
 Supreme Court Order in In Re: Contagion Of Covid 19 Virus In Prisons (CIVIL) NO.1/2020 dated 16 March, 2020.
 Supreme Court Order in In Re: Contagion Of Covid 19 Virus In Prisons (CIVIL) NO.1/2020 dated 23 March, 2020.
 Commonwealth Human Rights Initiative, “State/UT wise Prisons Response To Covid 19 Pandemic In India”. (May 19, 2020).
 “Never directed states, UTs to compulsorily release all prisoners: SC”, The Economic Times, Apr 13, 2020. Available at: https://economictimes.indiatimes.com/news/politics-and-nation/never-directed-states-uts-to-compulsorily-release-all-prisoners-sc/articleshow/75128266.cms, (last visited on May 28, 2020).
 Supra note 17.
 National Legal Services Authority, “Activities of NALSA during Pandemic: Extraordinary time demands extraordinary measures” (May 15, 2020).
 Ananya Bharadwaj, “This is how prisons across India plan to release and track 34,000 inmates”, The Print, March 31, 2020.
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 Shubham Airi & ShivKrit Rai, “How Indian Prisoners Stand To Lose The Most During Coronavirus Pandemic” Outlook India, April 26, 2020.
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