Suggestions Preventive Steps with Regard to Prevention of Coronavirus in Prisons
I. Release on Bail and Probation
- Release of Under Trial Prisoners on PR Bond under Section 346 and 436A CrPC: Special efforts need to be undertaken to identify Under Trial Prisoners (UTPs) who are eligible for release on Personal Recognisance Bond (PR Bond) under Section 436 and 436A Cr.P.C. This can be done with the help of Para-Legal Volunteers (PLVs) and Legal Aid Clinics (LACs) appointed by the District Legal Services Authorities (DLSAs). The DLSAs may also take the help of NGOs and law college students for this purpose. Directions of the Hon’ble SC in the PIL in Re-Inhuman Conditions in 1382 Prisons may be referred to which has issued guidelines in this regard (Writ Petition (Civil) No. 406/2013 by its Order dated 5th February, 2016).
- Review of Cases by Under Trial Review Committees for Release on Bail or PR Bond: The Hon’ble SC in the same PIL has ordered formation of Under Trial Review Committees (UTRCs) in every district vide its order dated 24th April 2015. These UTRCs are chaired by the District and Sessions Judge, and are supposed to meet on quarterly basis to review cases of UTPs who can be released on bail or PR Bond. It has been the experience of civil society organisations working on rights of under trial prisoners that UTRCs are not functioning properly. A study conducted by the Commonwealth Human Rights Initiative (CHRI) has revealed that 60 percent of the 357 districts which responded to the RTIs filed by CHRI to obtain information on functioning of UTRCs did not comply with the mandate of holding quarterly meetings. The study also found that 85 percent of the UTRCs do not follow the full mandate of the UTRC as directed by the SC. As per the Hon’ble SC directions, NALSA has prepared a SOP for functioning of UTRCs. As per the SOP, 14 categories of UTPs and convict prisoners are to be identified for release and the SOP has also laid down possible ways by which they could be released – release on bail with or without sureties, reduction of bail amount, provisional bail, release on PR Bond, etc. The SOP prepared by NALSA for the functioning of UTRCs should be implemented in letter and spirit. The Hon’ble SC may call for a report from the Secretaries of State Legal Service Authorities (SLSAs) about the implementation status of the NALSA SOP on functioning of UTRCs.
- Prayas is a field action project of the Tata Institute of Social Sciences which has been working for the legal rights and rehabilitation of under trial prisoners in 8 prisons in Maharashtra and Gujarat since the last 30 years. Prayas has started a legal aid and bail project since December, 2018, in 6 prisons in Maharashtra in collaboration with the Maharashtra State Legal Services Authority, whereby Legal and Social Work Fellows have been appointed in these prisons and at the DLSAs in Mumbai, Thane and Latur districts. Through the efforts of Prayas, more than 1200 UTPs have been able to get legal aid lawyers through the DLSA panel and around 800 UTPs have been released on bail in the last 14 months (December 2018 to February 2020). Prayas’s experience has shown that when UTRC refers cases for release on PR Bond to the trial court magistrate/judge, they do not always take a favourable decision of releasing the UTP on PR Bond. It is suggested that in the current situation, cases identified by the UTRCs for release on PR Bond should be forthwith released on PR Bond by the trial court magistrate/judge.
- Guidelines Issued by Delhi High Court for Release of Under Trial Prisoners on Bail or Personal Bond: The Delhi High Court, vide its order dated March 8, 2018, in the Ajay Verma Vs. Govt. of NCT of Delhi case (Writ Petition (Civil) No 10689/2017), has issued detailed guidelines to ensure that conditions of bail are met and persons do not languish in prison despite bail being granted to them. These guidelines may be circulated to the judiciary across the country through the SLSAs, so that magistrates/judges may use these guidelines in releasing UTPs on bail or PR Bond.
- Implementation of Arnesh Kumar Judgment: As per the Arnesh Kumar judgment (Criminal Appeal No. 1277 of 2014 (@SLP (Crl.) No.9127 of 2013), UTPs arrested under offences where the maximum sentence is 7 years of less, should be forthwith released on PR Bond, if they are not able to fulfill bail conditions.
- Release of Women Under Trial Prisoners with Children Below 6 Years Living with Them in Prison on Provisional Bail: Women UTPs who have children living with them inside prison, may be considered for release on long term or provisional bail for at least 2 months, depending on the case, as the court may deem fit. This is to ensure that the health of the children is not jeopardized. Section 437 CrPC can be used to release women under trial prisoners wherever possible.
- Use of the Probation of Offenders’ Act to Decongest Prisons: The Probation of Offenders’ Act, 1958 can be used to decongest prisons to a large extent. Except for those arrested under offences where the maximum punishment amounts to life imprisonment or death sentence, all other categories of accused persons are eligible to be released on probation under Section 4 of PO Act. Under Section 3 of the PO Act, persons arrested in petty offences can be released on admonition, without even calling for the report of a Probation Officer. Under Section 6 of the PO Act, the magistrate/judge has to mandatorily call for the report of a Probation Officer and give reasons in writing why an accused below 21 years of age is not being considered for release on probation. This law continues to be neglected due lack of awareness and/or sensitivity on the part of the judiciary, and lack of sufficient number of Probation Officers appointed by state governments. The Hon’ble SC may issues suitable directions to the Hon’ble High Courts to instruct the lower judiciary to consider releasing as many deserving cases as possible under Section 3, 4 and 6 of the PO Act as possible. The Hon’ble SC may also issue directions to state governments to immediately fill up vacant posts of Probation Officers in their state, if necessary, on contract basis, till such time as these posts are filled through due process. It may be pertinent to note that the Hon’ble SC in the Re-Inhuman Conditions in Prisons case has already issued orders whereby UTRCs are supposed to consider cases for release under PO Act, wherever possible.
- Arrangements for Released Prisoners to Reach Home: Arrangements will have to be made to ensure that released prisoners are able to reach their homes in the light of the national lockdown till 14th April, 2020.
II. Health, Sanitation, Drinking Water and Hygiene
- Weekly Visits by Doctors from Civil Hospitals to Prisons: The Justice Radhakrishnan Committee on Prison Reforms constituted by the Government of Maharashtra, in pursuance of the orders passed by the Hon’ble Bombay High Court in the Jan Adalat, Centre of Para-Legal Services and Legal Aid Vs. State of Maharashtra case (Criminal PIL No. 46 of 2015), has given several recommendations to decongest prisons and introduce prison reforms in the state. One of its recommendations regarding health conditions of prisoners may be particularly pertinent in the current circumstances. Recognising the lack of doctors and para-medical staff in prisons, the Committee instructed the Director of Health Services, Government of Maharashtra to issue orders to the district civil hospitals in the state to start weekly visits by a team of doctors (a general physician, a gynecologist, a skin specialist, a psychiatrist and a pediatrician) for two hours to the nearest prison (copy attached). This would reduce the burden on prison doctors and also reduce the number of patients who need to be taken to the nearest civil hospital for treatment. The Hon’ble SC may issue similar directions to Secretary, Public Health, of state governments to constitute medical teams from all civil hospitals which would visit the nearest prison on a weekly basis to strengthen health care facilities and hygiene in prisons and reduce the number of prisoners to be taken out for treatment to civil hospitals.
- Setting up Mobile Toilets and Improve Drinking and Bathing Water Facilities: The issue of hygiene needs urgent attention in current circumstances. The Model Prison Manual 2016 (Bureau of Police Research and Development, Ministry of Home Affairs) recommends building of toilets at the ratio of 1 per 10 prisoners during night time and 1 per 6 prisoners during day time, as far as a possible. State governments may be instructed to build toilets in prisons based on this recommendation. Till such time that such toilets are built, mobile toilets may be placed outside barracks wherever possible, to improve hygiene and sanitation. Similarly there is need to bolster clean drinking water and bathing water facilities on a war footing, if necessary by bringing water tankers till additional pipelines are installed.
- Sufficient Supply of Sanitary Pads to Women Prisoners: With regard to women prisoners, sanitary pads should be made available in sufficient quantity to women prisoners who may need the same. Sanitary pad dispensing machines may be installed wherever possible at the earliest, where women prisoners can access the same free of cost, as per their need. This is very important from the point of their health and hygiene.
- Improving Diet for Pregnant Women and Children in Prisons: Good nutrition is very important to build immunity for prisoners, especially pregnant women and children in prison below 6 years (living with their mothers). Model Prison Manual, 2016, prescribes ‘scales of diet’ in Chapter VI, para 6.04, 6.05 (a); for pregnant and nursing women as per para 6.05 (b); for children between three and six years as per para 6.05 (c); and for children below 6 years as per the recommendations of the medical officer as per para 6.05 (d). The Hon’ble SC may issue directions to state governments to immediately bring the diet scale given to prisoners, as mentioned in the MPM 2016.
- Improving Supply of Bathing Soap: Supply of washing and bathing soap in sufficient quantity should be provided to prisoners. It is observed that bathing soap is often not available in sufficient quantity. For example, as per the Maharashtra Prison Manual, prisoners are provided one bar of 100 Grams bathing soap per month. In the current situation where one is expected to wash their hands frequently, this may be insufficient quantity. It would be preferable to provide liquid soap and install wash basins inside and outside the barracks and also increase the quantity of bathing soap to 2 bars of 100 Grams of soap per month per prisoner.
III. Corona Virus Related Steps
- Supply of Thermal Thermometers to Prisons: Thermal thermometers (non-contact) need to be immediately supplied to all prisons so that all new entries can be checked for their temperature and in case of being detected with higher temperature, they can be immediately shifted to a quarantine ward.
- Supply of Masks: Sufficient quantity of masks should be supplied for the staff and inmates in each barrack.
- Wash Basins and Hand Wash Facilities at Entry Points: Wash basins and hand wash facilities / hand sanitisers should be made available in sufficient quantities at the main gate and entry points to all the barracks and cells in the prisons.
IV. Contact with Family through Phone Calls, Parole and Social Workers
- Allowing Phone Calls to Family Members: Since some states are shutting down mulakat facilities temporarily (as has been done in Mumbai Central Prison) to avoid contact with outsiders, there is an urgent need to facilitate contact with families via telephone facilities. Such facilities already exist in many states for prisoners to speak to their family members in a regulated manner. However, this facility is not uniformly available in all prisons and in many states where the facility is available, prisoners have to pay for this facility. It is recommended that for the time being, this facility be extended to prisoners free of cost (at least once a week), to remove their fears about the health and safety of their families and vice versa. Lack of family contact for long periods of time may have serious mental health impact on prisoners and may lead to increased aggression, and incidents of violence amongst prisoners and/or suicide attempts.
- Release of Convict Prisoners on Parole: Convict prisoners may be released on parole of 45 days, especially those who are convicted for less than 7 years. For those who are convicted for more than 7 years, parole may be granted on the basis of a Social Investigation Report submitted by a Probation Officer or recognised NGO to the Prison Superintendent, with the approval of the DIG Prisons of the Region under which the prison falls.
V. Arrangements to be Made for Released Prisoners
- Home guards or police escort or vehicles should be arranged for released prisoners to reach their homes.
- Prisoners may be given a kit consisting of eatables/snacks, a ration kit, a bottle of water and a bottle of hand sanitiser.
- Address and phone no of at least one shelter home in the district should be provided at the time of release of the prisoner, especially for women.
- In case there is a problem with regard to transportation or lack of facilities, temporary shelter arrangements may be made in the city till the lockdown is over for prisoners released on bail or parole.
- A reasonable travel/subsistence allowance be given to the UTPs/convicts at the time of their release.
- Health screening of prisoners prior to release:should be done and those found fit should be issued a ‘fit certificate’ by the medical officer so that they are not refused admission to a shelter home or face harassment by the community when they reach their homes.
- No prisoner should be released without their consent.
Dr. Vijay Raghavan, Professor, Centre for Criminology and Justice, Tata Institute of Social Sciences, and Project Director, Prayas, a field action project of TISS