Across the country, lawyers, scholars, and activists are seeking the release of prisoners on interim bail or emergency parole amid the worst surge of the COVID-19 pandemic in the country.
These voices demand decongestion of overcrowded prisons, ramping up the health and sanitation facilities within prisons, and mitigation of the psychological trauma caused to prisoners from not knowing the fate of their families beyond the prison walls, which gets more severe when lockdown rules kick in.
State has an obligation to protect the right to health of the prisoners. Demands for decongestion of prisons not only seek release of prisoners, but also attention towards the unique needs of those who are vulnerable and marginalised by the virtue of their identity – women, the aged, trans persons, mentally ill, and disabled prisoners.
As per reports, 10 percent of inmates in Tihar’s women’s jail (Jail No. 6) tested positive for COVID-19. This was the highest rate of infection at any jail in the Tihar prison complex. Overall, over 200 prisoners and 300 prison staffers have tested positive for the disease since March 2021.
Be Public Health Centric, Not Crime Centric
During the first wave of the pandemic, the judiciary’s approach to decongesting prisons was predominantly “crime-centric”. The decisions of the HPCs had created an “eligibility criteria” for the release of prisoners, which did not take into consideration any other factor, but the “nature of the crime”.
The HPCs’ excess emphasis on crime in outlining the criteria for interim bail and emergency parole completely ignores the aggravated vulnerability of the special category of prisoners – women, trans persons, disabled, and elderly with co-morbidities. This approach of “who deserves to be released”, fails to address the vulnerability of prisoners from a public health approach.
In order to shift the focus of decongesting procedures from “crime” to “public health”, a representation was filed before Delhi’s HPC by advocates Vrinda Grover, Soutik Banerjee, Devika Tulsiani, Mannat Tipnis, and Dr Pratiksha Baxi.
The representation submitted that to protect the right to life of the prison inmates there was an imminent need to adopt a health-centric approach.
The criteria set for the purpose of awarding interim bail and emergency parole must be premised upon and take into consideration the overall holding capacity of prisons, health-related vulnerabilities, co-morbidities, disabilities, including physical disability and mental illness or mental health concerns, belonging to marginalised social groups, special physiological needs of women, and age-related ailments.HPC Representation
Unique Vulerability of Special Category of Prisoners
Part of having a public-health approach towards decongestion in prisons includes acknowledging these vulnerabilities in formulating the release criteria.
Tata Institute of Social Sciences’ Prayas, and National Law University’s Project 39A asked the Bombay High Court to acknowledge the aggravated vulnerability of certain categories of prisoners. In their representation, they argued that prisoners with co-morbidities, or those above 60 years, or those with mental illnesses, or 40 percent physical disability, or those who are terminally ill, should be given priority for release.
The representation made before Delhi’s HPC also urges special attention towards the unique condition of women and disabled prisoners. It argued that interim bail or emergency parole should be the norm, especially if a person belongs to a vulnerable group, community, or class in society.
While there are dedicated women’s jails, it does not mean that they are designed to meet the differential needs of women. It is not specially equipped to address issues of female health and hygiene, including reproductive and menstrual needs of women.Dr Pratiksha Baxi
Shift Prisoners To Jails Closer To Family
On May 03, the Jammu & Kashmir High Court Bar Association (JKHBA) urged the central government and the Union Territory of J&K to pay attention to the pains of incarceration of Kashmiri prisoners.
The Bar wanted the Kashmiri prisoners locked up in jails outside Kashmir to either be shifted to jails in the Kashmir valley or be released on parole.
The lockdown has caused severe hardships to the families of the Kashmiri prisoners, who are concerned about the health and lives of their kin incarcerated outside the valley. Due to the geographical distance and denial of paroles, it has become nearly impossible for Kashmiri prisoners to maintain ties with their loved ones, causing them severe psychological and emotional distress.
The Courts and HPCs Must Prioritise Vulnerability
The demand for acknowledging the vulnerability of various special categories of prisoners has been made across the board. The courts and the HPCs can’t turn a blind eye to this issue, especially when the national and international bodies have all echoed the same demand.
The NHRC’s ‘Human Rights Advisory on the Rights of Persons with Disabilities in context of COVID-19’ (September 2020) has also emphasized the need to recognise the specific needs of persons with disabilities in institutions and calls upon the state to take necessary steps to combat the pandemic.
Even international organisations such as the UN High Commissioner for Human Rights, World Health Organisation, and UN Office on Drugs and Crime, have urged national governments to decongest prisons and treat pre-trial incarceration as a “method of last resort”.
The HPCs and the courts, therefore, cannot approach the issue of decongesting prisons solely from the crime-centric approach. Doing so, would not only defeat the efforts of curbing the spread of the deadly virus, but would also violate the prisoners’ constitutional right to life.
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