The surge in the number of affected people led the world into a state of social distancing and most countries initiated lockdowns. However, while individuals aimed at avoiding crowds the thought of overcrowded prisons worldwide seemed like a hotbed for the outspread. Consequently, the United Nations Office of Drugs and Crimes, WHO, and Office of UN High Commissioner for Human Rights passed a joint statement urging political leaders worldwide to reduce overcrowding of prisons by releasing older people and those with prior health conditions and provide paroles to those sentenced for minor, non-violent offences, without compromising public safety.[3]

This article analyses the Indian laws and recent guidelines (Apex Court and State Governments) in dealing with prisons during the current pandemic. It summarizes the discrepancies between the guidelines of states thereby treating prisoners without ‘intelligible differentia’ and attempts to conclude with the possible short-term and long-term aids to be adopted.

EXISTING LAWS:

Although epidemics and pandemics are unforeseeable, countries across the world have minor or major legal provisions tackling the same. The Indian laws in this regard are as follows:

· The Epidemic Diseases Act, 1897, gained limelight due to Covid-19, was passed in February 1897 after the outbreak of the Bubonic Plague in India.[4] The Act empowers the State Governments to take necessary steps, prescribing temporary regulations for the public to follow; the Central Government to inspect ships and vessels for preventing the outbreak along with penalties in case of disobedience; and protects those acting under the provisions of the Act.[5]

· Under the Indian Penal Code, Sections 269, 270 and 271 cater to the punishments in case of negligence; malignant acts of spreading infection of any disease; and disobedience to quarantine rules respectively.[6]

· Though prisons are governed independently by the respective states, The Prisons Act, 1894 of India, provides under Section 7 that in case of outbreak of an epidemic disease within a prison or if the number of prisoners therein is greater than can be safely kept, it is desirable to provide for the temporary shelter or safe custody of any prisoners, in case transfer is inconvenient.[7] However, the detailed functioning of the prisons in every state is controlled by their respective Prison Manuals.

· The above mentioned Act of 1897 was inadequate for the Covid-19 situation in India and hence The Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated by the President on April 22nd, providing definitions and strict provisions for the protection of healthcare service personnel and relevant punishments.[8]

Nonetheless, these laws either cater to an epidemic situation based on century-old scenarios or do not clearly enumerate the country’s response towards the protection of prisoners from the disease and decongestion of overcrowded prisons, the much-needed antidote to the existent pandemic. As a result, the Supreme Court and State Governments took various steps and issued guidelines corresponding to the United Nations joint statement that requested for the said decongestion.

SUPREME COURT’S ORDER ON DECONGESTION:

On March 23rd, the Supreme Court issued an order to all States and Union Territories of India to set up High Powered Committees (HPC) for the release of convicts and undertrials on paroles and bails, applicable to those charged for offences punishable with up to 7 years or less, leaving the categories of prisoners and other guidelines to the HPCs’ discretion; based on nature, severity of offence and number of years.[9]

The Supreme Court also mentioned that the Undertrial Review Committee contemplated “In re Inhuman Conditions in 1382 Prisons, (2016)” shall meet for taking necessary decisions, and the HPCs shall consider directions in para 11 of Arnesh Kumar v. State of Bihar, (2014). It also suggested the creation of isolation wards, preliminary examination of prisoners and other medical assistance.[10]

INCONSISTENCIES IN HPC GUIDELINES:

According to the Prison Statistics Report, 2019 by the NCRB, the total number of jails (all types) in India is only 1350 and the average occupancy rate in these, is 118.5%.[11] The Commonwealth Human Rights Initiative provided that the total number of covid-19 cases in prisons across the country is 8664 and the death toll is 16.[12] In an attempt to control this scenario the HPC guidelines (along with Supreme Court guidelines) for the decongestion of prisons were adopted. However, the differences in the guidelines of 28 states and 8 union territories are numerous, a few of which may be analysed as follows:-

· Odisha provides bail to convicts even with one under-trial case, for which they already have bail.[13] Similary Delhi allows bail to Undertrials although charged for multiple offences, if they have bail for the others.[14] In contrast to this, Andhra Pradesh[15] and Kerala[16] have absolutely excluded convicts and undertrials as eligible for bail if they are repeat offenders or charged for multiple offences.

· Madhya Pradesh has enforced its Prison Rules, 1985 thereby prioritizing convicts on the basis of age and releasing men above 65 years and women above 50 years.[17] However, Haryana is paroling all convicts above 65 years, irrespective of gender, unless charged with multiple offences.[18]

· Andhra Pradesh[19] and Haryana[20] hold convicts and undertrials under Section 376 (rape under IPC) and POCSO Act as ineligible, similar to Delhi which also incorporated Sections 376A,B,C,D,E[21] though not mentioned by the former states. West Bengal however, excluded all sexual offenders against women thereby widening the scope of bail rejection.[22]

· Karnataka denies releasing those unable to furnish surety, though granted bail[23] whereas Kerala is releasing convicts on executing a self-bond without sureties.[24]

· Madhya Pradesh has disregarded the Supreme Court guideline (up to 7 years or less) as they are releasing undertrials on bail only if they are charged with offences punishable up to 5 years or less.[25]

CONCLUSION:

Such inconsistencies in treating the prisoners across the country, when our biggest concern is controlling the outspread of covid-19, are numerous and in violation of their right to equality before the law (Art. 14 of Indian Constitution)[26] because the prisoners and undertrials charged with same offences and under similar circumstances are being considered differently by the justice system solely due to the intricate variations in their respective HPC guidelines.

Most States have not considered the prioritisation of age and medical history as criteria for bail and parole despite such people being at greater risk and in speedy need of release from the possible dens of coronavirus. Similarly, those charged with money-laundering, commercial, or economic offences have been completely denied bail though the UN suggested otherwise for non-violent crimes.

Additionally, the Indian Courts were closed for a considerable time and those functioning currently are only hearing ‘urgent’ cases which quite likely do not include the thousands of pending bail applications of prisoners from the country’s 1350 prisons. Moreover, if bail is granted, the current times are more financially challenging and it is unfair of the courts to assume that all prisoners though eligible for bail will be able to afford it, thereby leading to numerous unreleased prisoners even after grant of bail.

Hence, although it is understandable that the country has never dealt with a similar situation before, it is the responsibility of the Government, Judiciary and other authoritative bodies to rise to the aid of Indian citizens without excluding the ones inside prisons. At present, India needs to ensure certain short-term aids and start heading towards long-term solutions.

Some short term aids are, accepting self-bonds without surety by prisoners; if not eligible for bail, ensuring isolation for men and women above 60 years within the prisons; Upholding Section 7 of The Prisons Act, 1894[27] and arranging for temporary shelters for the prisoners which would help in decongestion; conducting orientations within the prisons for explaining the world scenario, importance of hygiene and symptoms to look out for.

The long term and much-delayed aids that are needed include a revision of the age-old epidemic and prison laws and adding detailed provisions correlating the two; passing of a conclusive and detailed list of guidelines by the Union Government for the release and protection of prisoners, applicable to the whole country to maintain uniformity. Under the Model Prison Manual 2016, Ministry of Home Affairs, though not enforceable but hoped to be adopted by states, Chapter XIII caters to emergencies thereby including epidemics. The temporary enforcement of this manual that incorporates detailed provisions for precautions, treatment, accommodation of prisoners, segregation sheds and other particulars,[28] in all prisons across the country would ensure a uniform procedure to be followed thereby helping the situation inside prisons, and rational equal treatment of the prisoners. Thus, the test of humanity and governance brought upon by the Covid-19 should not clog India’s potential to tackle situations in a just and efficient manner, because although prisons, they still are within India.