COVID-19 Surge puts India’s Criminal Justice System on Ventilator
Restrictive functioning of courts would mean further delay in trials, aggravating the burden of pending cases
On April 19, former Prime Minister of India Manmohan Singh wrote a letter to incumbent Prime Minister Narendra Modi, offering him “5 solutions” to systematically tackle the current surge of COVID-19. One of these suggestions was to recognise lawyers who have to travel to courts as frontline workers.
Singh is not the first to raise the demand of extending priority vaccination to the legal fraternity. Just eight days earlier, the Supreme Court of India ordered a stay on proceedings before high courts across the country on extending priority vaccination to the legal fraternity. The apex court had decided to hear the matter itself, but since then, it is pending.
This lack of swift decision-making has come with a cost. Multiple judges across the country have tested positive for the virus. In Delhi, on April 19, a district judge of Saket court, Kovai Venugopal, passed away after fighting the virus for 7 days.
Without priority vaccination, and in light of the unprecedented surge in COVID-19 cases, the courts have been forced to restrict themselves to hearing only “urgent matters”. This decision has adversely affected the state of the criminal justice system in the country, which is already plagued by mounting pendency and crippling infrastructure.
Trials Stuck In Purgatory
The restrictive functioning of courts severely aggravates the pains of those who are languishing in jails awaiting the conclusion of their trials. 70% of India’s incarcerated population are undertrial prisoners - a concerning trend unique to our penal system. These undertrial prisoners are subjected to the horrors of India’s hyper-punitive prison system despite not being declared guilty by a court of law.
The call for restrictive functioning would mean further adjournment of trials. A delay, which not only subjects undertrial prisoners to prolonged incarceration but also aggravates their psychological and emotional pains of imprisonment.
Often the time spent by these undertrial prisoners is almost as much as the sentence prescribed for the offence they are accused of. As of 2019, nearly 22 lakh criminal cases had been pending for over 10 years. Due to such high pendency of criminal cases, the share of undertrials confined in prison for more than one year, more than three years and more than five years has only increased between 2000 and 2019
The latest government data doesn’t even account for criminal cases or trials that were registered or commenced in 2020 but could not be concluded due to the restrictive functioning of courts during the lockdown imposed in 2020. This means that the actual state of pendency of criminal cases is far worse than what the government figures suggest.
Overcrowding In Prisons
Prison statistics have exposed the problem of extreme overcrowding in prisons across the country, with the overall occupancy rate increasing consistently from 2017 (115.1%) to 2019 (118.5%). Ironically Delhi, which “boasts” of the largest central prison complex in Asia, reported the highest 'over-occupancy' rate (174.9%).
During the early months of lockdown imposed in 2020, the Supreme Court recognised the heightened vulnerability of prisoners to COVID19 and directed State Governments to form High Powered Committees to release certain category of prisoners on interim bail or emergency parole.
A good number of prisoners were released on interim bail by the High Powered Committees across the country. The period of such interim bail was also extended periodically in light of the ongoing pandemic.
However, as the COVID positivity rate supposedly started to come down, the economy opened up and the policy of “Unlock” was put in place. In light of that policy, the courts and the High Powered Committees refused to extend the interim bail any further and directed released prisoners to surrender forthwith.
Now, when the country is witnessing a fresh unprecedented surge in cases, a situation much worse than 2020, there is no sign of any court taking up the issue of decongestion of prisons again. Even the High Powered Commitees, which had to been officially dissolved, have not taken any decision on reviving the process of securing the safety of prisoners.
This apathy towards prisoners amounts to a grave violation of the constitutional rights guaranteed to those incarcerated in state institutions. The right to life enshrined under Article 21 of the Constitution extends to prisoners as well. However, the state which is obligated to protect that right has conveniently decided to shrug off responsibility.
Prisoners are extremely vulnerable to the virus, now more than ever. Inquiries made to the Tihar prison complex by The Quint revealed that hundreds of prisoners who are currently out on furlough will be surrendering next month. This would immediately expose the prisoners already in custody to new and more contagious strains of coronavirus.
A System Lacking Foresight
The first lockdown imposed during the onset of the COVID-19 pandemic in 2020 exposed the fault lines of India’s criminal justice system. The restrictive functioning of the courts not only delayed the dispensation of justice, it also stifled the access to justice.
Restrictive functioning forces many criminal lawyers out of work, especially those who practice before trial courts and rely on court appearances for legal fees. It was after multiple pleas for help, that the Bar Associations agreed to extend some financial support to those facing “tough times” due to the lockdown. Reimposing restrictive functioning will expose such lawyers to similar hardship once more, even before fully recovering from the previous lockdown.
The Advocates Act prohibits enrolled advocates to take up any other job or profession while remaining a member of the Bar. The authorities are unwilling to relax this rule while remaining mum on the need to revive the framework of compensating lawyers pushed deeper into financial distress.
Soutik Banerjee, a criminal lawyer practising in Delhi, told The Quint that the failure of the system was in its lack of vision and foresight, as judicial officers, court staff and personnel ought to have been vaccinated before the surge, given that trends across the world were suggestive of this second wave and we had precious time which was lost.
Now that delaying criminal trials has become inevitable, Banerjee believes that the judicial system must acknowledge its lack of foresight and release all undertrial prisoners on interim bail.
Women prisoners and prisoners belonging to marginalized groups and communities including trans people ought to be released immediately, and the State must be forced to have a people centric and health oriented perspective instead of an offence centric approach towards the issue.Soutik Banerjee
Banerjee further argues that the detention of undertrial prisoners when trials are adjourned would be a failure of the State's obligation to protect its citizens under the Disaster Management Act, which obligates the state to protect citizens without discrimination.
The criminal justice is choking. It needs serious and immediate intervention to help it survive a little longer. We are not even talking about a complete cure. While the onus partly lies on the judiciary, it is primarily the responsibility of the government. The state of India's criminal justice system at this moment is now another item on the growing list of glaring examples of the government's lack of foresight and abdication of responsibility at this time of unprecedented health crisis.
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