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As Covid-19 cases breach the 2,000-mark in prisons across Maharashtra, lawyers to press for changes in high-power panel’s guidelines

By K A Y Dodhiya and Vijay Kumar Yadav
PUBLISHED ON SEP 27, 2020 11:10 PM IST

As the number of Covid-19 cases in jails across the state has breached the 2,000-mark, advocates who have filed various petitions in the Bombay high court (HC), seeking emergency bail or parole for inmates, have said that they would be pressing for changes in the May guidelines issued by the high-power committee (HPC), pertaining to the release of inmates, including undertrials and convicts serving sentences of more than seven years. The HPC was constituted by the state to regulate and oversee the release of prisoners on a temporary basis to decongest the jails amid the outbreak.

As on September 23, 2,061 inmates across and 421 jail staffers have tested positive for Covid-19 across 43 central and district prisons in Maharashtra.

Advocate Satish Talekar, whose letter to the HC chief justice was converted into a public interest litigation (PIL), said that the HPC’s guidelines were issued in May, when there were only 34 Covid-19 cases in jails. However, the contagion has spread unabated and there is an urgent need for a review of the guidelines.

“The HPC guidelines are contrary to the recommendations of the state government and jail authorities, as the classification of prisoners, which by itself is unconstitutional, has made it almost impossible for the courts to release the prisoners on emergency bail or parole,” said Talekar, adding that though the petitions challenging the HPC guidelines were rejected by the HC and the Supreme Court (SC), there was a need to revisit its guidelines.

The first case in jails was detected from Mumbai Central Prison (Arthur Road jail) after a 45-year-old inmate, who had suffered a paralytic attack on May 2, was taken to JJ Hospital. He had developed the symptoms of the virus and had intermittent high fever since April 30. According to the hospital records, the patient was admitted at 1.55 pm on May 2 and a swab test was taken, which came positive on May 5. Following this, 182 inmates and 46 staffers of the prison were also found positive for the virus.

NB Vyachal, superintendent of police at Arthur Road prison, had foreseen the problems which the contagion could cause in an extremely congested jail. In a letter written to the chief metropolitan magistrate on March 23, Vyachal had said that Arthur Road was housing 3,700 inmates as against the capacity of 800 and had called for the court to grant regular bail to undertrials in minor and moderate offences, and temporary bail to those booked in serious offences to decongest the prison.

He had also pointed out in the letter that Arthur Road prison was located only 100 metres away from Kasturba Hospital, where hundreds of patients were being tested and treated for Covid-19 on a daily basis, which was violation of the World Health Organization’s (WHO) norms, mandating that a radius of 3 kilometres be declared a buffer zone from any hospital treating infected patients.

The influx of inmates contracting Covid-19 at Arthur Road jail saw a slew of petitions being filed in the HC, seeking various reliefs for the inmates as well as implementing the SC directions issued on March 23 to decongest jails.

The petitioners included non-governmental organisations (NGOs) and individuals who sought the intervention of the court to ascertain the status of the inmates, post the discovery of the infection, as neither the jail authorities nor the state was forthcoming with any information. The PIL filed by NGO People’s Unity for Civil Liberty saw senior advocate Mihir Desai seeking directions to the jail authorities to give the status of inmates (infected and non-infected ones), how social distancing norms were being maintained in overcrowded jails, the precautionary measures being taken by jail authorities to safeguard the inmates and to establish contact between inmates and their lawyers and relatives.

After the court directed the jail authorities to take immediate steps to safeguard the non-infected inmates, the authorities started regular thermal screening and sanitisation of the jail premises and barracks, creation of isolation bays and providing cellular and video-calling facilities to the inmates.

Another bunch of petitions pertaining to undertrials and convicts were also moved before the HC, in which the issue of releasing prisoners on interim bail/parole or furlough as per the SC directions were raised. The petitions challenged the decision of the HPC.

The challenges in the petition were to the May 11 and 18 decisions of the HPC to classify prisoners based on the crime and duration of the punishment they were to undergo. While undertrials and convicts booked and convicted only under the Indian Penal Code with a sentence less than seven years were considered for temporary or interim bail/parole or furlough, the HPC denied the benefit those booked or convicted under special acts such as Maharashtra Protection of Interest of Depositers (In Financial Establishments) Act (MPID), Protection of Children from Sexual Offences (Pocso), Unlawful Activities (Prevention) Act (UAPA), Maharashtra Control of Organised Crime Act (Mcoca), Narcotic Drugs and Psychotropic Substances Act (NDPS) and Prevention of Money Laundering Act (PMLA).

In order to curb the contagion and to decongest the prisons, a government resolution dated May 15 empowered the district collectors to declare any private or public building premises a temporary jail. All newly-admitted prisoners (2,767) are now being confined in such 37 temporary jails in the state, said jail authorities in response to the petition. “We have opened 37 temporary centres for new admissions and to quarantine those who are tested positive. Most of the Covid-19 infected prisoners are asymptomatic and are undergoing treatment at quarantined centres. Only those who show symptoms are sent to hospitals,” additionaldirector general of prison department, Maharashtra, Sunil Ramanand, said.

The prison authorities also stated in an affidavit filed before the HC that in order to curb the contagion, overcrowded prisons such as Yerawada, Mumbai, Thane, Byculla, Kalyan, Nashik Road, Aurangabad and Nagpur jails have been locked down completely.

However, in June and July, reports of cases started coming in from others prisons, with Nagpur Central Prison being the worst affected. As on September 23, around 219 inmates and 62 jail staffers have been tested positive in Nagpur Central Prison, while 171 inmates and 21 staffers have tested positive at Chandrapur District Prison. The central prison at Yerawada in Pune saw 261 cases among inmates and 43 among the staff, while Aurangabad Central Prison had 52 infected inmates and 35 staffers. Another district prison at Solapur has 69 and 13 cases among its prisoners and jail staff, respectively.

Advocate NN Gavankar, who had moved for parole and furlough for prisoners owing to the increasing number of cases in Kolhapur jail, criticised the HPC guidelines and said that they were absurd.

“While an April 2018 government notification permits those convicted in most serious crimes such as bomb blasts to avail emergency bail or parole for attending a marriage or funeral in the family, the HPC guidelines denies them the benefit for Covid-19 outbreak. The HPC guidelines are contrary to the constitutional rights available to prisoners, as their lives are put in jeopardy due to the classification made in the guidelines,” said Gavankar.

Meanwhile, despite the fact that prisons in Maharashtra could possibly be the worst-hit due to Covid-19 across the country, little seems to have been done by the state in terms of decongesting the prisons or conducting enough number of tests. This is despite the HC having asked prison authorities to conduct random testing of inmates and to scrupulously follow the guidelines issued by Indian Council of Medical Research (ICMR).

According to jail authorities, 14,597 inmates and 2,543 staffers have been tested for Covid-19 across prisons in Maharashtra. But the statistics released by the prisons department shows that no tests have been conducted in six of the 43 prisons across the state.

Ramanand said, “I believe we are conducting sufficient testing. We have around 27,000 prisoners and have conducted more than 14,000 tests so far and the process is on.”

As on September 23, prisons across Maharashtra houses 27,255 inmates against the total capacity of 23,217, said jail authorities. The number of inmates inside the prison continues to be staggering, despite prison authorities claiming that a total of 10,608 inmates have either been released on bail or parole since March 23.

As per the prison manual, an inmate has to be provided a space of 3.71 square metres (five feet width). And according to jail authorities, to ensure social distancing, the capacity of the jails will have to be reduced by two-third, which means that prisons across Maharashtra can house only about 16,000 inmates.

“All possible efforts for de-congestion of prisons are being taken, but still we have some central prisons which are overcrowded. However, we also have to understand that granting bail to a prisoner is decided by the court. The most important thing here to notice is that we have been able to successfully curb the Covid-related deaths in prisons. There are only six Covid-19 deaths among 36,000 prisoners. We have successfully achieved the lowest mortality rate [in the country],” said Ramanand.

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