Letter to the Chairperson, High Powered Committee seeking modification of criteria for decongestion of Delhi Jails

Hon’ble Ms. Justice Hima Kohli
Judge, High Court of Delhi &
Executive Chairperson,
Delhi State Legal Services Authority (DLSA)

The Chairperson
High Powered Committee
Government of NCT of Delhi

13.04.2020

Re: Meeting of the High Powered Committee, Government of NCT of Delhi (GNCTD) on 28.03.2020 and 07.04.2020 for effective implementation of directions issued by Hon’ble Supreme Court of India on 16.03.2020, 23.03.2020 and 07.04.2020 in Suo Motu Writ Petition (Civil) No. 1/2020 In Re: Contagion of COVID 19

Subject: Seeking modification of criteria for decongestion of Delhi jails to achieve the object of social distancing and segregation to prevent the outbreak of COVID-19 (Novel Coronavirus) in prisons

Hon’ble Ms. Justice Hima Kohli,

Peoples Union for Democratic Rights (PUDR) is a non-funded, voluntary organisation based in Delhi which has been working on issues concerning civil liberties and democratic rights since 1977. Its members include teachers, researchers, lawyers and students based in Delhi. Over the years, PUDR has regularly taken up issues pertaining to the lives of Delhi prisoners like cases of physical assault, sexual assault, attack on Kashmiri muslims, custodial deaths and jail conditions.
Through the present representation, we wish to appeal to the High Powered Committee (HPC), GNCTD for modification of the criteria for the decongestion of jails in Delhi, so that the prison population can be brought down to the levels necessary to achieve the object of social distancing and segregation in order to prevent the further spread of COVID-19. This will, in turn, help safeguard the fundamental rights guaranteed to prisoners under Article 21 of the Constitution of India.
To reiterate, on 16.03.2020 the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 1/2020 In Re: Contagion of COVID 19, took cognizance of the threat to the life of prisoners residing in overcrowded prisons across the country in the wake of the spread of COVID-19. Juxtaposing prison occupancy rates with the urgent need for social distancing and recognising the greater risk of prisoners being infected with contagious viruses, it held that our prisons have to be prevented from becoming fertile breeding grounds for incubation of the disease. It was observed as follows:

While the Government of India advices that social distancing must be maintained to prevent the spread of COVID-19 virus, the bitter truth is that our prisons are overcrowded, making it difficult for the prisoners to maintain social distancing. There are 1339 prisons in this country, and approximately 4,66,084 inmates inhabit such prisons. According to the National Crime Records Bureau, the occupancy rate of Indian prisons is at 117.6%, and in states such as Uttar Pradesh and Sikkim, the occupancy rate is as high as 176.5% and 157.3% respectively. Like most other viral diseases, the susceptibility of COVID-19 is greater in over-crowded places, mass gatherings, etc. Studies indicate that contagious viruses such as COVID-19 virus proliferate in closed spaces such as prisons. Studies also establish that prison inmates are highly prone to contagious viruses. The rate of ingress and egress in prisons is very high, especially since persons (accused, convicts, detenues etc.) are brought to the prisons on a daily basis. Apart from them, several correctional officers and other prison staff enter the prisons regularly, and so do visitors (kith and kin of prisoners) and lawyers. Therefore, there is a high risk of transmission of COVID-19 virus to the prison inmates. For the reasons mentioned above, our prisons can become fertile breeding grounds for incubation of COVID-19.

On 23.03.2020, following up on its previous order, the Hon’ble Supreme Court laid down, in no uncertain terms, that the life and dignity of prisoners guaranteed under Article 21 of the Constitution of India have to be safeguarded and the issue of overcrowding needs to be addressed immediately in the context of the pandemic. It was laid down:

The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19). Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.

In a welcome move, the HPC formed under your Chairpersonship in meetings dated 28.03.2020, and 07.04.2020, discussed the significance of decongestion of prisons and determined such criteria whereby undertrial prisoners would be released on Interim Bail for 45 days. Through an amendment in the Delhi Prison Rules, the provision of Emergency Parole has been created based on which convicts are to be released for eight weeks. This is expected to bring down the number of inmates to 14,500. A few others whose remaining sentence is 6 months or below, will also be released on special remission. Further, inmates whose parole / interim bail was to expire on 16.03.2020 or thereafter, shall surrender only on 15.05.2020. The HPC has also directed that all prisoners who are released have to be provided a safe transit to their respective homes, even if belonging to other States. The Hon’ble Supreme Court in its order dated 07.04.2020 had also directed the Union and the States to ensure the same.
It is humbly submitted that though the above steps further the efforts of the GNCTD in preventing the spread of the disease, but they still fall short of the measures necessary to prevent Delhi from entering into the community transmission stage of the disease, especially when viewed in the context of the orders of the Hon’ble Supreme Court reiterated above. We wish to appeal to this Committee to kindly reconsider and modify the criteria on which the release of prisoners is being directed, based on the grounds that follow.

GROUNDS FOR SEEKING MODIFICATION OF CRITERIA

It is submitted that 17,440 prisoners reside across 16 jails at Tihar, Rohini and Mandoli with holding capacity of 10,026 (174% occupancy). At such a level of overcrowding, basic requirements to maintain hygiene cannot be provided, and social distancing mandated to deal with the pandemic cannot be implemented, even after the release of around 3000 prisoners as proposed. In such a situation the infection could spread at an unimaginable pace. Additionally, jails need to be prepared to implement the segregation of prisoners into three separate and secluded areas within the jail premises: one for those with COVID-19 symptoms, another for those more susceptible and therefore at greater risk, and a third for the rest. It is argued that even jails full to 75% capacity would be unable to implement this necessary segregation. Therefore, it is important that steps be taken for further decongestion of jails to bring down the population to atleast 7,000.
In determining the criteria for release of prisoners, it is submitted that those prisoners who are more vulnerable or at a higher risk than others, for instance, those who have any existing ailments or are above the age of 50 years (7% of prison population as on 29.02.2020) should be considered for immediate release. As per the press release of the Ministry of Health and Family Welfare dated 04.04.2020, most of the deaths have been reported from elderly people or those having co-morbidities. Almost half the positive cases reported thus far belong to the age group of 41 years or above. Unfortunately, the existing criteria does not take into account, the aforesaid factors.
To further reduce the prison population to desired levels, it is submitted that more number of undertrial prisoners (UTPs) should be released as the undertrial population in Delhi jails is 82%. It will be pertinent to mention that the Hon’ble Supreme Court had directed that the High Powered Committee shall be free to consider such relevant factors as may be required to effectively achieve the prevention of further spread of the disease. The spread of infections to places of incarceration and detention also adversely affects the employees of these institutions and will prolong the duration of the disease in the community at large. With most of the staff members of these jails working to cater to these 82% UTPs, the outcome of even one positive case inside jail will be disastrous and may lead to chaos.
It is also submitted that the criteria for exclusion of undertrial prisoners booked under certain serious offences like NDPS/PMLA/UAPA/PC Act or those investigated by the CBI/ED/Crime branch/Special Cell/NIA/SFIO may kindly be reconsidered. While it is true that certain offences demand a stricter view in certain situations, but a blanket exclusion of all such cases – without taking into account the abysmally low conviction rates in such offences, and above all, the age profile and prior medical conditions of the said UTPs – may run counter to the mandate of the order passed by the Supreme Court as well as the measures being popularised by the Government itself. Overlooking such criteria will amount to inflicting upon these prisoners a sentence akin to death even as they continue to be undertrials. It will be pertinent to state that recently the Hon’ble High Court of Bombay has been pleased to issue notice in a petition challenging the criteria laid down by the state’s High Powered Committee as arbitrary, whereby blanket exclusion of prisoners on the basis of being booked under special statutes has been done. In the same context, Ms. Michelle Bachelet Jeria, United Nations High Commissioner for Human Rights has also urged states to release “every person detained without sufficient legal basis, including political prisoners, and those detained for critical, dissenting views”.
It is further submitted that it is an admitted position that even today on an average 25-30 fresh persons are being sent to jail. Even under the lockdown, a number of people are being routinely detained in lock-ups in police stations, of which many do not even come on record. The recent pogrom in North East Delhi and the various FIRs registered thereafter, continue to see a number of such instances. Today there is a need for strict guidelines to prevent this to the extent possible, especially as normal functioning of courts is not taking place. Lockups should be decongested immediately by releasing petty criminals. Further, the Supreme Court in its order dated 23.03.2020 has already noted in this regard that directions contained in paragraph 11 in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 be taken into account wherein it has been directed to ensure that police officers do not arrest the accused unnecessarily and Magistrates do not authorise detention casually and mechanically.

PRAYER

- In view of the necessity to safeguard the lives of prisoners and in view of the increasing number of positive cases in Delhi, PUDR humbly prays for the following urgent interventions:
- Release all prisoners who belong to either of the following category(irrespective of their status as undertrial or convict):

- 1. Prisoners with ailments (especially those of a respiratory nature or immunity related); or
  2. Prisoners of an advanced age – above 50 years.
- Even those booked with offences considered “serious”, be released if they fall under the abovesaid categories.
- In cases, where despite advanced age and/or prior ailments, the HPC considers it inappropriate to release prisoners booked under “serious” offences, they be moved immediately to a separate
- ward with adequate quarantine and sanitation facilities.
- Decongestion of jails be done to reduce the inmates to not more than 70% of capacity so as to permit segregation of the inmates into three groups as explained above, maintenance of hygiene and proper provision of medical help.
- Issue of strict directives for adherence of guidelines given in the case of Arnesh Kumar (supra).
- Issue of strict orders to decongest police station lockups by releasing petty criminals.
- Interrogation to be conducted without custody in the case of accused booked under offences that carry a maximum sentence of 7 years.
- Sufficient number of jail telephone lines be provided to ensure communication between prisoners and their family members to avoid any situation creating panic.