Explained: Plea for decongestion of prisons

The author of this blog is Anubhav Shukla, a 1st-year student pursuing BA LL.B, University of Petroleum and Energy Studies (UPES).

In this time of the Covid-19 pandemic, Supreme Court and the High Court have taken many steps to deal with various issues that arise during this lockdown. One such issue is the decongestion of prisons on which the Supreme Court on 5th June 2020 refuses to entertain the plea filed for the decongestion of prisons in the time of the pandemic. The bench headed by Chief Justice of India SA Bobde refused the petition by the petitioner a direction that they had the liberty to approach the High Court for relief in this matter.

Background of this matter-

In Suo Moto Petition(C) No.1/2020 In Re: Contagion of COVID in prison, a bench comprises of Chief Justice of India S.A Bobde, J.L.N Rao and J. Surya Kant ordered that prison must follow the criteria of social distancing among the prisoners including those who are under a trial. The physical presence of prisoners to the court must be stooped and all the proceeding work must be done through Video Conferencing. The bench also added that the transfer of prisoners from the prison to prison for the routine purpose should be stooped expect for decongestion and there should be no delay in shifting of those who are sick to a nodal medical institution if any sign of infection is visible.

Apart from these guidelines Bench also stated that all States/ U.T shall constitute a High Power Committee which would be compromises of – 

• Chairmen of State legal Service Committee 
• The Principal Secretary
• Director-General of Prison(s)

The committee was embedded with the power to make decisions, about which class of prisoners can be released, the power to release the prisoners on interim bail or parole is to be vested in the committee. The Bench also suggested that each State/Union Territory consider the release of prisoners who have been convicted or are under trial for offenses for which the prescribed punishment is up to 7 years or less.

Arguments made in the plea-

Adv. Bhushan on behalf of Jagdeep S.Chookar (former Dean of IIM Ahmedabad) sought a direction to stakes to provide reports regarding the status of the progress of the decongestion of prisons. 

An argument between Prashant Bhushan and Chief Justice goes as follows-

The CJI:- the Petitioner had the liberty to approach the jurisdictional High Courts for relief in the matter of decongestion of jails because of Covid-19.

Bhushan:- directions should be issued to States to provide reports regarding the status of the process of decongestion of prison.

 The CJI:- directions had to be passed on a State by State basis and those general directions could not be given. The petitioner was asked to approach the concerned High Courts for specific cases.

Bhushan:- the jails were still overcrowded and that many who were in prison for minor offenses have not been released.

The CJI:- the situation was not the same in all States and therefore, general instructions could not be passed.

Bhushan: "Yes, it is the same. At this stage, you may ask the States to inform what is happening in their State. How many have been released, how many have not been released, and why so. How many undertrials who are in jail for minor offenses (under 7 years), how many above the age of 60 have been released?"

Bhushan:- the matter would be difficult to pursue at the High Court level. And who will pursue it to High courts he asked.

The CJI:- there would be many advocates who would be willing to pursue the matter at the High Court level.

Bhushan:- general direction must be issued.

The CJI:- Will you withdraw or should we dismiss? We would like the advantage of hearing from you after hearing the view of the High Court. We are not asking you, specifically, to go to HCs".

Bhushan;- hear the matter with the main case which is listed on the 8th of June.

 The CJI:- We are only telling you that the variable involved differ from place to place, and the ones you are highlighting are not the ONLY ones that need to be considered. Why don't you understand our point of view on some occasions at least?^[1]

Reasons for this order-

The main reason for this order as stated by CJI that variables involved from place to place, he also stated that Bench would like the advantage of hearing plea at apex court after hearing the view of High Court. He also mentioned that points raised by Mr. Bhushan are not the only ones that need to be considered.

Legal provisions involved-

In the case of Paschim Banga Khet Mazdoor Samity & Others v. State of West Bengal & Others held that right to healthcare facilities forms an essential part of the right to life under Article 21 of the Constitution of India. This judgment serves a very important role as the right to health is not expressly a fundamental right given there in our Constitution^.[2]

Apart from the Indian Constitution, Section 4 of the Prisons Act, 1894, provides for the provision of sanitary accommodation facilities to prisoners. At the same time, Section 7 of the same legislation contemplates the provision of shelter and safe custody facilities to such prisoners who may be found to be more than the prison capacity of a prison. Under the Prisons Act, a prisoner necessarily has to be checked by a medical practitioner at the time of admission into the prison.The United Nations Human Rights Committee in its Concluding Observations on Moldova has clearly remarked that the failure of a state in taking positive steps towards the prevention of the spread of contagious diseases in prison would amount to a violation of Article 6 (right to life) and Article 9 (right to liberty) of the International Convention on Civil and Political Rights, 1996 (ICCPR). India is one of those nations that have ratified the ICCPR. Thus, there are obligations on the Indian Government when it comes to taking steps towards preventing the spread of COVID-19 in prisons, and any such failure will lead to violation of the above-mentioned obligations under the ICCPR.

Conclusion-

Over occupancy of Indian jails is no secret to anyone. The occupancy rate of Jails from the year 2008-2018 was 117% that means 17% more inmates than their capacity during that period. About 61% of the population living in prisons is of those who are under trials. While the occupancy rate for prisons is swamping in some states such as Uttar Pradesh (174%), Delhi (154%), Chhattisgarh (153%), the states in which prisons are not over occupied also present concerning numbers especially when seen in the face of COVID-19 pandemic.

It becomes vital for the state to take measures to prevent the spread of the coronavirus in prisons. If the state fails to stop the spread of corona and subsequently the life of prisoners than it will not only the violation of Article 21 of the Indian Constitution but also the violation of Article 6 and 9 of the ICCPR.

[1] https://www.livelaw.in/top-stories/sc-refuses-to-entertain-plea-for-decongestion-of-prisons-asks-petitioner-to-move-hc-157877( last visited on 10 June 2020 at 5:20 am)

[2] https://www.escr-net.org/caselaw/2006/paschim-banga-khet-mazdoor-samity-ors-v-state-west-bengal-anor-cited-1996-air-sc-2426 ( last visited on 10 June 2020 at 5:37 am)