Delhi prisons must be decongested amid COVID, as a reminder that prisoners too have constitutional right to life.
We are presently in the midst of the third wave of COVID outbreak, which, by all accounts, is worse than before. The WHO has reported the highest daily spike in COVID-19 cases across the world in mid-November (10 November), with 3.6 million new cases, an 8% increase in the number of reported cases over the previous week. In the same period, India accounted for more than 2,81,000 of these cases, and more than 500 deaths daily. As per the statistics put out by the Ministry of Health and Family Welfare, Government of India, Delhi itself is witnessing a daily increase of 450 active cases and 131 deaths (19 November). The Delhi government has enhanced penalties for violation of social distancing protocols, and is again contemplating fresh lockdowns in hotspots.
The worsening public health situation warrants a continuation of decongestion of Delhi prisons, as a reminder that prisoners, too, have the right to life and health guaranteed under Article 21 of the Constitution. Already, Delhi prisons have witnessed 89 reported cases of COVID infections including 2 deaths of prisoners, apart from 219 reported cases of infected staff members despite continuous decongestion measures. As per the latest minutes of the Delhi High Powered Committee, there are still 13 active cases reported among inmates and the jail staff. It is not clear whether disaggregated data of prisoners as per their age and other co-morbidities is available.
In March 2020, when the apex Court had first ordered release of prisoners on account of the pandemic, it had recognized that the country’s overcrowded prisons are a fertile breeding ground for the spread of the virus. At that time there were only 107 active cases across the country.
It is no secret that our country’s prisons reel under toxic conditions and deplorable health facilities even under ordinary times. The Supreme Court has underlined the fundamental rights of prisoners in several cases, noting that the State cannot subject prisoners to any greater risk of life and health than the deprivation of their personal liberty as provided by due process of law. The pandemic that we face today presents an opportunity for the State to secure the fundamental right to health of all prisoners by decongesting overcrowded prisons, and building health infrastructure within jails.
Even after the decongestion drive, Delhi prisons are still running at a capacity of 160%, where their overall capacity is 10,000. In March when the decongestion drive had begun, Delhi prisons were running at a capacity of 175%. Over time, the High Powered Committee laid out various criteria which resulted in the release of approximately 5500 prisoners.
However, the state government on 20 October 2020 admitted before the Delhi High Court that the prison population as on that date was back to 15,900.
However, despite this admission by the state government, on the same day, the Delhi High Court in Court on its own motion [WP(C) 3037/2020] passed an order directing prisoners who had been released on bail/parole as a result of COVID-19 decongestion measures to surrender in a phased manner. On 29 October 2020, the Supreme Court stayed this order, which was further extended by a week today, 25 November 2020.
Nevertheless, it bears noting that efforts to secure the return of surrendered prisoners is contrary to the right to life and health of prisoners, and carries the risk of upturning the strenuous attempts of jail authorities to contain the spread of the virus. In fact, it is the need of the hour to continue this exercise so that prison population may be reduced to 75% or less in the interest of health and safety of prisoners, jail staff and populations outside. In such a situation, sending back released prisoners will bring the prison population to over 200%, rendering social distancing impossible. Surrendering prisoners will be travelling from near and far places, increasing their risk of exposure, and therefore the spread of the contagion amongst vulnerable prisoners inside.
The NCT of Delhi and jail authorities themselves have indicated inconvenience and chaos due to inadequate infrastructure before the High Powered Committee, and the directions of the Delhi High Court impose a further unmanageable burden. The jail authorities have had to request for the availability of twelve towers in the Police Housing Complex adjoining Mandoli jail for converting them into “Temporary Jails” for housing surrendered prisoners. This includes two towers for security forces to be specially deployed to facilitate the process. Prisoners’ access to balconies, mulaqats and other rights are proposed to be restricted to manage space.
Physical production in courts has already been put on hold to minimize ingress and egress from prisons. This has curtailed the time that a prisoner can seek with his lawyer and his family during court hearings, apart from other restrictions placed on mulaqats and legal interviews. Lower courts, as well as the Delhi High Court and the Supreme Court are continuing modes of virtual hearings, and only irregularly holding physical hearings in response to the spread of the infection. This also affects the capacity of courts to exercise effective oversight and take cognizance of health and other prison conditions. Sending back prisoners at such a time will lead to a forced trade off of their essential rights as convicts and undertrials.
Building adequate healthcare facilities inside prisons must be a prerequisite, and not an afterthought. The state government may consider investing resources in developing medical wards, equipment and adequate sanitation, instead of diverting resources towards ‘temporary jails’. Surrender of prisoners should only be considered once the Government of Delhi declares waning numbers of infections, along with a tabulation of age and other co- morbidities of prisoners both inside and outside prison. Courts may consider alternative legal arrangements to ensure that bail/parole conditions are not violated, such as by reporting to the nearest police station at regular intervals or through video calls.