Author : Satyajita Mohanty, Student at Manipal University, Jaipur.
Co-Author : Praniti Hurket, Student at Manipal University, Jaipur.
In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters.
The Covid-19 pandemic has shook the globe from its core. Humans from all over the globe were under lockdown and facing numerous challenges to survive. The prisoners had to go through double the possibility of difficulties in comparison to the normal population. Inadequate infrastructure, below par sanitary conditions and lack of health facilities is turning the situation of inmates to worse. Due to the outbreak of coronavirus the inmates were retrenched from meeting their family members. It all in whole lowered the mental health of the prisoners adding more miseries to their life. In order to get proper facilities with less risk from getting affected by the virus, some prisoners are trying to escape from the cell, some are on hunger strike and some other powerful inmates are bribing the prison authorities to get apposite resources. Countries like the United States of America, Columbia, Brazil, El Salvador, Iraq and many more, the inmates are facing a hard hit phase with almost no basic preventions. Many countries thumped harshly by the epidemic are releasing the elderly, unhealthy and non-violent inmates to prevent the cell from overcrowding. indian prisons are troubled with almost equivalent strained conditions. The inadequacy of resources to the prisoners is an age old concept and Covid 19 is magnifying it. Indian prisoners secure prisoners right by various amendments. Article 14, Article19, Article 21 of Indian Constitution and section 436 A of Criminal Procedure Code guarantees the inmates basic rights on humanitarian basis.
Keywords : Covid-19, Prisoners, Criminal Procedure Code, Coronavirus.
The spread of Novel corona Virus has without discrimination affected each and every individual regardless of their colour, race, creed or sect. However, it is a well understood fact that the ability to withstand the consequences of Covid 19 and overcoming its distress is a subject matter of the availability of resources to an individual. Whenever the human race is faced with a global crisis the vulnerable communities are impacted disproportionately because of the lack of resources and basic infrastructure.
Prisoners as a group account for 446,084 persons out of which 69.4 per cent are under trial.
The horrific stories of spread of the deadly diseases like Hepatitis and Plague are in the news every now then even in the usual circumstances. People in prisons and jails live in close proximity to each other which may act as an aid in the spread of Covid19 within and beyond the prison walls. Given the rate and spread of infection in India, the grave effects of Covid19 are inevitable in most of the prisons.
EFFECTS OF COVID19 ON THE LIFE OF PRISONERS
“Society’s degree of civilization could be seen by entering its prisons”
Prisoners usually live in large dormitories and shared cells. They share spaces with other inmates for activities like dining, sleeping, bathing and playing. The access to sanitizers, soaps and masks is highly disproportionate to the rapid spread of coronavirus.
EFFECTS ON MENTAL HEALTH
Due to the high contagious nature of Covid 19 most of the activities in the prisons are truncated and prisoners are confined to their beds or cells Even the visitation of the inmates and their family members has been curtailed which in the long run can have a grave effect on the mental health of these inmates. Wherever possible the state shall, in close coordination with health officials take the adequate steps to release some people from jails and prisons.
Confinement and social distancing can’t go hand in hand. Indian prisons are notorious for overcrowding, harsh living conditions, poor sanitization, increased number of under-trial prisoners and inadequacy of prison staff.
Overcrowding in prisons is a deprivation of basic human rights as it results in the deterioration of the common standards of living and undermines the dignity of life. Congested cells add on the misery of prisoners as it harms not only their human sentiments but affects the mental health too. Eventually it turns out to be an impediment for their reformation. Overcrowded prisons are toxic breeding grounds for Covid19.
One of the major safeguards for containing this virus is Social Distancing i.e. staying at a distance of 6ft from another person. But, how can social distancing be practiced in a dormitory wherein 2 inmates are living at a distance of 2ft from each other.?
The major reasons for the increase in the number of prisons is, delay in the disposal of Undertrial cases and lack of infrastructure to accommodate undertrial prisoners and inmates.
According to the report of NCRB; 1401 prisons in India are holding 4,66,083 prisoners against their actual capacity of 3,96,223. The total number of under trials (under suspicion) inmates is 3,23,537 which is 69.63% of total population of prisoners and out of which19.02% are people above the age of 50 year. Social distancing and Sanitization can only be a myth in such congested and harsh living conditions
T.K. Gopal v. State of Karnataka (2000) 6 SCC 168, where the court held that the“Prisoner is required to be treated as a human being and is entitled to all the basic human rights, human dignity and human sympathy” .
Owing to overcrowding of India’s prisons poor sanitization and unhygienic conditions is a problem even in normal circumstances. Shortage of soaps and sanitizers is a corollary to overcrowding. Prison is a subject of state list and Article 47 states that it is the duty of the State to raise the level of Nutrition, standard of living and to improve the public health, but as of now the guidelines of the Modern Prison Rules, 2016 has not yet reached the execution process. The rules provide for segregated sheds for all the prisoners so that they can effectively perform social distancing and includes provisions regarding the sanitization of their clothes and keeping the person infected in a separate dormitory away from other prisoners. However, prisons in India lack the infrastructure for the implementation of the rules.
To improve prison conditions does not mean that prison life should be made soft; it means that it should be made human and sensible.”
– Jawaharlal Nehru
The primary determinants to adequate standard of living are pure water, right to food and shelter. Article 21 is although available to prisoners but it’s infringement by jail authorities is a very common phenomenon since most of the activities that happen inside prisons seldom come to notice of social media. Lack of doctors, medicines, equipment and can significantly add to the spread of infection.
LAW AND PRISONERS
In case State of A.P v. Challa Ram Krishna Reddy it was held that being a prisoner does not deprive him of his fundamental rights, he is a human being, natural person and legal person. There are certain articles which are available to the prisoners per se. The court said person liberty should be considered supreme over sovereign immunity and such right cannot be defeated by old and archaic defence of sovereign immunity.
Article 14 states that the state shall not deny to any person equality before the law and equal protection of laws within territory of India. According to the doctrine of Reasonable classification the correctional staff and jail authorities can differentiate among prisoners on the basis of the crime committed and sentence awarded for the purpose of reformation and rehabilitation. Prison must be an institution which reforms the culprit’s mind and being in such a way that when he comes out, he has better chances of adjustment and survival in the society. If reasonable classification is not done the fragile mind of undertrial prisoners might change to that of a hard-core criminal.
Article 19: Article 19(1)(a) guarantees to all citizen the right to freedom of speech and expression. Article 19(2) says that “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Inmates and prisoners can also form associations under Article 19(1)(c).
Article 21 establishes that no person can be deprived of his life or personal liberty except according to procedure established by law. Article 21 of the constitution secures the prisoners with right to food, right to health, right to legal aid, right to speedy trial, right to shelter and it includes many more.
SAFEGUARDS TO INMATES AND UNDERTRIAL PRISONERS
In the case of Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar the Supreme Court has held that since the condition of under trial prisoners is brutal in India and most of these prisoners are from a deplorable financial background due to which they cannot engage a lawyer and secure free legal services. Henceforth, it is the constitutional duty to provide a lawyer to such persons. As non-provision of free legal services when needed is a contravention to Article 21 of the constitution. Nobody should be behind the bars because of their poverty.
In A. R. ANTULAY V R S NAYAK it was held by the Supreme Court that human rights of the prisoners must be ensured. It was concluded that Article 21, right to speedy trial can be exercised at any stage of the trial.
Section 436A of Criminal Procedure Code provides that when a person during investigation or inquiry has undergone imprisonment for more than one half of the period provided for its punishment then the court may after hearing to the Public Prosecutor and for reasons to be recorded by him in writing either order further detention or release him on bail on his personal bond or with or without sureties.
LEGISLATIVE HISTORY OF PRISON LAWS
The Prisoners Act, 1894 was the first ever legislation for the regulation of prisons in India. The attempt was made by British government in order to govern the jail administration in systematic procedure and to improve the living conditions of the prisoners. The prisoners Act, 1894 reflects various sections which show various reformation for the prisoners. Section 7 of the Prisoners Act, 1894 states that whenever the limit of prisoners exceeds in a cellular unit or if there is outbreak of epidemic disease within the jail and it is not well timed to transfer the excess inmates to another prison, the inmates should be provided with temporary shelter with safe custody.
CONDITION OF PRISONS AROUND THE WORLD
Outbreak of COVID-19 has exacerbated the situation of prisons all over the globe. Prisons and jails are not well equipped with the supplies that are required to deal with Covid19.
USA is one of the most affected countries by the pandemic, to which their prisons are no exception. The virus got fuelled and the prisons became one of the major hotspots. The overcrowding of prisons seeded the spread of virus and soon the correctional staff was also in the realm of infection due to which they were asked to stay at homes. The lack in correctional staff proved to be an impetus for riots in jails. A question at this difficult time arises, whether the harsh living conditions due to Covid19 behind the bars is a punishment for their criminality or merely an outcome of circumstances. Many states in the USA have announced the early release of undertrial prisoners and also of the old and infirm inmates.
Colombia has witnessed a ferocious outbreak of the novel coronavirus in its detention facility. Prisons were housing prisoners double of its actual capacity and half of the inmates were tested positive for virus. In the capital city of Colombia, a prisoner riot broke out due to poor sanitary conditions and inefficiency of the management in controlling the spread of coronavirus. In this 23 of the inmates died and 83 prisoners were injured. The director of a prison in the Colombian city of Villavicencio says overcrowding is to blame for one of the country’s worst coronavirus outbreaks.
Brazil has the world’s third largest prison population and some of the facilities accommodate inmates three times its actual capacity. According to the data of the National Justice Council, since May Brazilian prisons have reported an increase of Covid 19 cases up to 800%. According to the organizations, in this pandemic, when protection against the virus requires hygiene, cleanliness and social distancing, “keeping prisoners crammed into an enclosed and unhealthy space is to exercise a power of death that materializes in a brutal equation”. Brazilian government has advised the prison authority to follow guidelines by WHO without taking the reality of the ground into consideration.
The government of El Salvador released photos of hundreds of jailed gang members stripped to underwear and pressed together in formation defying social distancing. The president ordered such a clampdown as 20 people were murdered in the country and as per the intelligence, the command was given by the gang leader behind the bars. The lockdown imposed by the president Nayib Bukele on the inmates was brutal and inhumane depriving them of basic human rights. This cruel act by the Salvador president was condemned by the Human Right Watch.
In Iraq, after the escalation of novel coronavirus inmates having monetary power are bribing prison guards to move them to solitary confinement away from the general public. They are conducting a hunger strike to protest against the unruly treatment.
In many countries’ governments have released elderly and nonviolent prisoners in order to avoid the spread of viruses. In some countries, medical aid to prisoners has depleted to less. Prisoners are curtailed from meeting with their family. The quality of food provided has been degraded since food supply to the market is getting restricted. Basic human rights of the inmates are violated.
Since desperate times call for desperate measures these are a few suggestions by the Author:
- Release of some people from prisons, who are more vulnerable to the spread of infection in consultation with the jail staff and Public Health Officials.
- Training institutes must be set up to train the prison staff on tackling serious offenders.
- Strict adherence to Section 436A of The Criminal Procedure Code.
- Patients having symptoms of the virus or any infectious disease should be kept in Quarantine and not in Solitary Confinement as the latter is a rigorous punishment and usually leaves a mental and psychological impact on the inmate.
Exploitation of prisoner’s rights is a daunting and grave problem. It requires quick and effective action from both the centre and the state legislatures. The Indian Judiciary has played the role of protagonist in bringing reforms in the prisons, however still a lot has to be done at ground level. Since one size doesn’t fit all special measures have to be taken at the forefronts so that the prisons are ready to face adverse situations like the ongoing pandemic. Availability of soaps, masks, sanitizers, checking temperatures, are not luxuries during a pandemic but a basic human necessity.
The Prison Statistics of India report (PSI) of 2018 which was released by the National Crime Records Bureau states the capacity of India’s prisons was 3,96,223 inmates against the inmate population of 445,084.
 Constitution Law Of India by J.N. Pandey page no 755
 Constitution of India, Article 14
 Constitution of India, Article 19
 Constitution of India, Article 21
 Constitutional Law Of India by J.N.Pandey page no 337
 Section 436A, Criminal Procedure Code
 Section 7, The Prisoners Act, 1894