GS II: GOVERNANCE

Q1. The COVID-19 pandemic has further strengthened the need to decongest Indian prisons. Comment. 

https://www.thehindu.com/opinion/lead/being-tethered-to-bars-during-a-pandemic/article33603632.ece

Ans.

• A distance of two yards — do ghazh ki duri — we are enjoined to maintain between oneself and anyone else. But there is a category of persons by which the injunction cannot be observed — prisoners. By the very nature of their situation, the physical limits of their confinement, they are obliged to stay in poorly ventilated and over-crowded cells. Being holed up in that condition almost seems to form part of the punishment. A jail and a dungeon are almost interchangeable terms.
• The Prisons Act of 1894 makes prisons the exclusive responsibility of State governments. Over the years the condition of prison life has moved up on the human civility and dignity scale, with the venues now being called correctional homes and over 60 ‘minimum security’ open prisons having been set up. Of the 4.5 lakh prisoners that our correctional homes hold, according to the National Crime Records Bureau’s report for 2019, about 3.3 lakh are ‘under-trial prisoners’ , against whom investigation or trial is supposed to be ‘in progress’. These 3.3 lakh ‘under-trial prisoners’ have been detained under Section 167 of the Code of Criminal Procedure (CrPC) which provides for “Procedure when investigation cannot be completed in 24 hours”. The original CrPC of 1898 specified the period of detention as 15 days. This has, by amendments, been extended to periods that can go up to 90 days and, in some exceptional situations, even indefinitely.
• So, while the plight — to use a cliché — of all prisoners is by definition bad, in terms of exposure to disease, it is 10 times worse for ‘under-trial prisoners’, for the majority of them are and are likely to be found to be innocent. Theirs is a case of innocence in jail and in jeopardy — the jeopardy of a potentially fatal infection contracted while in detention.
• The virus gives cause for an immediate review of all prisoners’ vulnerability to the epidemic, starting with that of ‘under-trial prisoners’ who are suffering two privations — one, being immobilised, most probably unjustly, and two, being tethered to the risk of infection.
• This review has to comprise 100% and repeated testing procedures in all prisons, especially sub-jails, which form the biggest category among them and the least ‘equipped’ and an arrangement for the isolating and hospitalisation of those testing positive. No prisoner who has tested positive can be allowed to remain within the crowded confines of that venue without transmitting the disease to a progressively rising concentric circle of inmates.
• But above all, the population of prisons has to be vigorously bought down.

WAY FORWARD 

• Through a salutary amendment, the Code Of Criminal Procedure (Amendment) Act, 2005, a much-needed Section 436-A has been introduced in the CrPC. Excluding offences for which capital punishment is envisaged, it provides for an under-trial to be released on a personal bond, with or without sureties if the period spent in detention by the under-trial has been for more than half the maximum period of imprisonment prescribed for that offence. (The public prosecutor can move the court to deviate from this.)
• The 2005 amendment had two aims : one, de-congestion and two, fairness. Today, in our COVID-19 times, if congestion is per se held to be dangerous, de-congestion in prisons through a prescribed legal procedure becomes not just a desirability but a duty. There should be immediate and massive activation of Section 436-A without sureties so as to benefit all under-trials eligible for it.
• It is not just desirable but axiomatic that the 2005 amendment to the CrPC be activated on a nation-wide and urgent basis as a penological imperative, a state duty and a human right. And while their release is being actuated, it also follows that even as anyone in a state hospital may rightly expect to be vaccinated on a priority against the virus, so should inmates of the ‘Hospitals of Correction’.
• While ‘Prisons’ is in the ‘State List’, as is ‘Public Health’, the Constitutional responsibility of handling infectious and contagious diseases figures in the Concurrent List.