By Bhawna Lakhina
Introduction
Coronavirus (COVID-19) is an infectious disease which is particularly dangerous for people living in overcrowded areas. Further, people who are aged or suffering from cardiovascular diseases, diabetes, chronic respiratory diseases, and hypertension are at a higher risk.[1] Keeping in mind the condition of Indian prisons, the inhabitants are at a huge risk of falling prey to this dangerous disease. A decision was taken in this direction by the Supreme Court (SC) ordering states/ union territories to release prisoners on parole on the basis of the nature of offence committed or the years of imprisonment prescribed.[2] Further, the order provides for medical facilities to be provided in prisons in conjunction with international standards.[3]
The order is essential not only because it seeks to prevent the spread of the virus in Indian prisons but also because it is a necessary step to ensure that the rights of the prisoners are protected. This decision of the SC holds immense significance given the fact that the prevention of the spread of coronavirus in overcrowded Indian prisons is an arduous task. However, this order must be critically analyzed with regard to the problems imminent in its implementation. These will be discussed in-depth in this blog.
The first part of the blog relates to an analysis of the human rights of prisoners that need to be protected as they constitute one of the most vulnerable sections amidst the global pandemic. The problems involved in the SC order are discussed in the second part. The final part deals with certain suggestions with regard to additional steps that must be undertaken.
Condition of Indian Prisons- A Violation of Human Rights of Prisoners
The problem of overcrowding in Indian prisons is not unknown. At present, the prisons are inhabited by around 17 percent more prisoners than their potential capacity;[4] the major reason being the detention of undertrials.[5] This leads to serious problems for the prisoners, particularly with regard to the availability of limited resources.
The prison healthcare facilities are in an egregious state. The strength of available medical staff is below the sanctioned limit.[6] Also, availability of basic medical facilities is a luxury for most prisoners let alone specialized medical care including qualified specialists, psychiatrists, etc. The sanitation facilities are in a similar state with lack of adequate toilets, handwashing facilities, etc.[7] There is lack of adequate ventilation, poor nutrition, etc. all adding up to make prisons the breeding ground for infectious diseases.[8]This makes prison health a significant part of public health. [9]
Due to the aforementioned reasons, the situation of Indian prisons has been constantly criticized for violating the human rights of prisoners, most importantly for depriving prisoners of basic health care facilities.[10] The prisoners’ condition is in clear violation of the Indian Constitution[11] as well as international human rights standards. [12] In such circumstances, it can be clearly inferred that these prisons are in no way ready to deal with a pandemic. This leads to infringement of the basic human rights of prisoners, specifically their Right to Health.
Thus, Indian prisons being extremely unhygienic, serve as hotspots for coronavirus transmission. As a result, the prevention of the spread in these prisons is strenuous requiring significant steps in the direction of improving prison health.[13] One of the most effective preventative mechanisms to prevent the spread of coronavirus in prisons is to reduce the number of prison inmates and to take constructive measures for improvement of healthcare facilities in prisons.[14] The SC has taken a major decision in this direction by passing the parole order.[15] However, this order is not devoid of problems which will be discussed in the subsequent part.
Problems Involved in the SC Order
While the SC parole order is a crucial step in ensuring that the Right to Health of the prisoners is protected, the classification of prisoners to be released is a major problem. This is because it suggests the release of prisoners on the basis of the gravity of the offence committed or the prescribed years of imprisonment.[16] This classification is flawed for the primary reason that older people and people already suffering from underlying diseases are at a high risk of developing coronavirus symptoms.[17] Due to the classification proposed in the SC’s order, this category of prisoners who require necessary release may not be able to get any relief.
Further, the prisoners released on parole may face difficulties to travel back to their homes safely. If, in transit, they develop an infection, these prisoners would threaten the lives of their family members and society at large. In such a situation, proper facilities must be provided to ensure safe transit of these prisoners so that they do not develop any symptoms en route. However, this is a near-impossible task for states due to the nationwide lockdown.
Thus, the more viable option would be to shift prisoners who are not in a position to return to their hometowns, to temporary less crowded places. Such models are being adopted by the authorities in England and Wales where efforts are being made to incorporate designated buildings as additional prisons to reduce transmission risks.[18]Similarly, temporary accommodation can be made available by the state governments in India by declaring suitable places as temporary prisons in accordance with Section 7 of the Prisons Act, 1894. [19]
The Way Forward
Primarily, the guidelines issued by the WHO to maintain high standards of health and hygiene in prisons and other detention centers must be strictly adhered to.[20] Accordingly, the prisoners must be made well aware of the symptoms and measures of prevention of the coronavirus. Proper medical facilities must be made available. Further, the Court must pay necessary attention to the prisoners in their old age and those suffering from underlying diseases. These prisoners should either be temporarily released as done in countries like Afghanistan [21] and Burkina Faso,[22] by way of an additional order by the Court or special medical attention must be paid to their needs.
It is equally important to ensure the rights of the prisoners released on parole. Statutory measures can be utilized by the state governments, like those taken in England and Wales, to identify and declare viable accommodation sites as temporary prisons given the fact that travelling back to their hometowns would not be possible for many prisoners. In addition, the remaining prisoners must be adequately taken care of. Facilities like video conferencing, which have been adopted in Argentina and Australia,[23] must be installed to help prisoners connect with their families and legal counsels.
The important point to be considered is that the mere reason that the prisoners are detained should not result into endangering of their lives in the present prison environment of India. They are entitled to the same standards of prevention and treatment like those available to the other citizens in the country especially in a pandemic situation that the world is facing today.
The author, Bhawna Lakhina, is a law student at the National Law Institute University (NLIU), Bhopal.
[1] If You’re at a Higher Risk, Harvard Health Publishing, Harvard Medical School (17/04/2020) available at https://www.health.harvard.edu/diseases-and-conditions/if-you-are-at-higher-risk, last seen on 22/05/2020.
[2] In Re: Contagion Of Covid 19 Virus in Prisons, Suo Motu Writ Petition (Civil) No.1/2020, Supreme Court (23/03/2020), available at https://main.sci.gov.in/supremecourt/2020/9761/9761_2020_1_8_21570_Order_23-Mar-2020.pdf, last seen on 18/06/2020.
[3]Interim Guidance on Scaling Up COVID 19 Outbreak in Readiness and Response Operations in Camps and Camp-like Settings (jointly developed by IFRC, IOM, UNHCR and WHO), Inter Agency Standing Committee of UN (17/03/2020), available at https://interagencystandingcommittee.org/other/interim-guidance-scaling-covid-19-outbreak-readiness-and-response-operations-camps-and-camp, last seen on 22/05/2020.
[4] National Crime Records Bureau, Prison Statistics 2018, available at https://ncrb.gov.in/sites/default/files/Executive-Summary-2018.pdf, last seen on 20/06/2020.
[5] Report of the All India Committee on Jail Reforms (1980-83), vol.1, para 3.17.
[6] Supra 4.
[7] All India Committee, op. int. Vol. 1, p. 74-75.
[8] Simooya OO, Infections in Prison in Low and Middle Income Countries: Prevalence and Prevention Strategies, Open Infectious Diseases Journal, 4:33–7(2010).
[9] Moscow Declaration on Prison Health as part of Public Health, WHO Regional Office for Europe(24/10/2003).
[10] Prison Conditions in India, Human Rights Watch (1991).
[11] D&M Patnaik v. State of Andhra Pradesh, [1974] AIR 2092 (SC); Hussain Ara Khatoon v. State of Bihar,[1979] AIR 1369 (SC).
[12] Art 1, Universal Declaration of Human Rights, 1948; Art 10, International Covenant on Civil and Political Rights, 1966.
[13] Health in Prisons Project, World Health Organization Regional Office for Europe (2011), available at https://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-Health.pdf, last seen on 28/05/2020.
[14] Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention, Interim Guidance, WHO Regional Office for Europe (15/03/2020), available at https://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19-in-prisons.pdf, last seen on 22/05/2020.
[15] Supra2.
[16] Ibid.
[17] Supra1.
[18] Nick Eardley, Coronavirus: Emergency Plans for Prisons in England and Wales, BBC News (14/03/2020), available at https://www.bbc.com/news/uk-politics-51879952, last seen on 30/06/2020.
[19] Section7, The Prisons Act, 1894.
[20] Supra 14.
[21] Afghanistan to release nearly 10,000 prisoners to curb coronavirus spread, Geo News (26/03/2020), available at https://www.geo.tv/latest/279369-afghanistan-to-release-nearly-10000-prisoners-to-curb-coronavirus-spread, last seen on 30/06/2020.
[22] Burkina Faso frees prisoners to stem virus spread, Daily Monitor (03/04/2020), available at https://www.monitor.co.ug/News/World/Burkina-Faso-frees-prisoners-stem-virus-spread/688340-5512766-6gph40/index.html, last seen on 01/07/2020.
[23] Las prisiones ante el COVID-19, avalaible at https://covid19prisons.wordpress.com/measures/, last seen on 01/07/2020.
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