Report on Seminar Attended

Topic: Prisoners & the Pandemic: Health, Safety & the Constitution
Date: 27 June, 2020
First of all, I would like to thank the Centre for Law & Policy Research (CLPR) and the
National Constitution Society (NCS) for organizing a webinar on 'Prisoners & the Pandemic:
Health, Safety & the Constitution'. The seminar was very interesting and gave me the
opportunity to understand how Indian prisons have become hotbeds of COVID-19. The
insanitary and overcrowded conditions have put prisoners specially at risk, resulting in wide-
scale release or bail for thousands of prisoners. This webinar addressed the multitude of
questions that have arisen as a result of COVID-19: What are the constitutional rights of
prisoners in relation to their health, safety, and dignity? Does the release program give us
scope to advocate for bail reform? How do we effectively implement interim bail and early
release?
The webinar was scheduled for an hour i.e. from 11:30 a.m. to 12:30 pm. The topic in the
webinar was successfully addressed by Jayna Kothari (Senior Advocate at the Supreme Court
of India) and Prof. Sanjeev P. Sahni (Principal Director of the Jindal Institute of Behavioural
Sciences). The webinar was moderated by Ms. Wardah Beg, Board Member of the National
Constitution Society, and Ms. Kruthika R, Research Associate at CLPR.
On account of there being no vaccine available, the major health measures that have been
adopted globally rely heavily on isolation measures of different sorts for checking the spread
of the virus. It is in this light that the concept of social distancing has attained significance as
a preventive measure to break the global chain of spreading of the virus. Indian prisons, in the
absence of continued lack of foresight, the slow mechanism of the judiciary, and other such
reasons remain not only potential hubs for a mass outbreak of COVID-19, but also a
complete mockery of the idea of social distancing.

State’s obligations towards the health of prisoners

The right to health is not expressively a fundamental right provided for in the Constitution of
India. However, as per the judgment of the Supreme Court of India in Paschim Bangal Khet
Mazdoor Samity & Others v. State of West Bengal & Others, right to healthcare facilities
forms an essential part of right to life under Article 21 of the Constitution of India. Now it is
but imperative to understand whether the fundamental right to health is available to a prisoner
as it is to the citizens of the country.

The Supreme Court, in its decision in Charles Sobhraj v. The Superintendent, Central Jail,
Tehar, New Delhi, held that imprisonment does not “spell farewell to the fundamental rights.”
Thus, all fundamental rights available to ordinary citizens are also available to prisoners,
albeit with some restrictions in their exercise due to imprisonment of the latter.
The Court specifically held that not providing proper health care facilities to prisoners would
lead to a violation of their fundamental rights, thereby attracting the remedy of the courts.
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 in excess of the prison capacity of a prison. Under the Act,
a prisoner necessarily has to be checked by a medical practitioner at the time of admission
into the prison.

The Model Prison Manual 2016 contemplates extensive guidelines for prisons in case of
epidemics. In cases of there being an epidemic breakout, the Prison Manual considers
permanent segregation sheds for every infected prisoner, overcrowding to be avoided
in isolation wards and cells, and treatment of patient’s clothing and infected barracks.

What does the data on Indian prisons say?

It is an open secret that Indian prisons suffer from over-occupancy. On average, Indian
prisons had an occupancy rate of 117% between 2008 -2018, which means that in toto, they
held 17% more inmates than their capacity during the period. At the end of 2018, prisons in
India held 4,66,804 people against their designated capacity of 3,96,223 inmates. The most
concerning fact amidst this is that 69% of the population inhabiting the prisons in our country
is composed of undertrials.

Are state governments ensuring preservation of prisoners’ rights?

The Supreme Court of India took suo motu cognizance of the over occupancy of the Indian
prisons in times of the COVID-19 outbreak in the country. It directed the State Governments
and Union Territories to consider granting paroles of four to six weeks to prisoners booked
under lesser offences to decongest prisons.

While isolation wards have cropped up in prisons all across the country, major steps for
decongesting of prisons in the form of granting emergency paroles and interim bails to
undertrials have started in many states of India, such as Uttar Pradesh, Madhya Pradesh, and
Maharashtra. Also, some of the state governments have put a ban on prison visits from
relatives and others for some time.

What should the State do?

The right to health, being a fundamental right under Article 21 of the Indian Constitution and
the same also being available to prisoners, it becomes vital for the state to ensure the
protection of the former.
It is also clear that prison-specific legislations in India, such as the Prison Act 1894, mandate
clean and sanitised accommodation facilities for inmates and shelter and safe custody
arrangements for prisoners who may be in excess of the capacity of a prison. However,
the unhealthy and filthy state of the majority of Indian prisons presents an incomplete picture.
The Prison Manual 2016 also provides measures to fight an epidemic by establishing
isolation wards in prisons.

Isolation wards have been established on the same lines in many prisons across the country.
However, keeping in mind the history of implementation of policies in the country, an
efficient mechanism must be established in every state to keep a check over the establishment
and proper functioning of such isolation wards in each prison in the state. The primary
response of the state concerning prison reforms in light of the COVID-19 outbreak has been
in the form of reducing the number of occupants in over-occupied prisons in the country.
However, the rate at which this exercise is being conducted across the length of the country
poses some serious questions concerning the consequences of this response. This is because
there is no uniform policy to regulate the process of releasing inmates on bail or parole for a
limited duration across different states. Thus, in the light of no COVID-19 tests being
conducted in every prison from where such prisoners are released, there is a risk of releasing
new vectors of the disease all across India, as it is well known that the virus often does not
show early symptoms.

This is highly possible, because of the poor state of healthcare facilities in prisons across
India, further aggravated by an acute shortage of trained medical professionals posted in
prisons in India (1914 medical professionals posted against the requirement of 3220).

It is in this respect that the Supreme Court has ordered the concerned state governments not
to release any prisoner who, after the passing of the relevant order, has suffered from
COVID-19. However, it is advisable if the temporary release of such prisoners could take
place in smaller batches only after conducting proper coronavirus tests, especially because
the symptoms of the virus often do not manifest themselves.

Taking a cue from the Kerala Model, the state and the central governments should also run
awareness drives in the prisons to make inmates aware of the disease and preventive
measures.

The quality of medical services provided in Indian prisons has often been questioned. The
inmates in prisons are entirely reliant upon the state for the provision of health care facilities.
Basic healthcare provided in Indian prisons is often seen as substandard and cheap, and it is
recommended that the same has to be raised to the level of essential primary health care
services that are provided to the citizens of the nation who are not inmates.