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)
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