CENTRAL UNIVERSITY OF PUNJAB, BATHINDA

STUDIES OF LAW (LLM)

SESSION :-( 2020-22)

SUBJECT: - LLM 521 Judicial Process

TERM PAPER TOPIC: -

JUDICIAL APPORACH TOWARDS PRISONERS DURING PANDEMIC

SUBMITTED TO:
Dr. TARUN ARORA
Dean & professor at (dept. Of law) CUPB

SUBMITTED BY:
NARESH PRAJAPATI
Reg. no: - 20llmlaw05
LLM 2nd semester

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 Introduction1
Several months into the COVID 19 pandemic, it continues to pose new challenges for those
directly affected, as well as for policy makers and practitioners. While issues relating to health
and mental health infrastructure, preventive measures, development of vaccine, state of the
economy, food security, livelihoods, education and access to online channels of
communication have caught the attention of the media and academics, the issue of the danger
the pandemic poses to custodial populations has been discussed more from a law and order
than a public health perspective. Prison populations are viewed in terms of the risk they pose
to public safety and order. Therefore, the need to release them has also been viewed largely
from the lens of the danger they pose to society—both in terms of the spread of the virus as
well as the threat to law and order.
Indian prisons are overcrowded with nearly 70% under trials. India ranks fifth in world prison
population rankings as per the World Prison Brief. According to the Prison Statistics India
(PSI) Report 2019 (Government of India 2019), there were 478,600 prisoners in 1350 prisons
against the official capacity of 403,739 prisoners, which meant that the occupancy rate was
118.5% in prisons. Out of the 478,600 prisoners, 19,789 were women prisoners (4.13%).
According to the India Justice Report (IJR), 19 out of 36 states and union territories in India
had an occupancy rate above 100%, with states like Uttar Pradesh having an occupancy rate of
176% and Delhi of 180% (Tata Trusts 2019).
It needs to be highlighted, especially in the context of the COVID 19 situation, that the number
of people who go through the prison system in a year is much higher than the prison population
on any given day. For example, according to the PSI Report 2019, 1,886,092 prisoners were
admitted to prisons during 2019 while the prison population was 478,600 as on December 31,
2019. This reveals that approximately 75% of the prisoners were released during the year, thus
implying the high floating population in prisons, with new admissions and releases taking place
every day. Given this reality, chances of the Corona virus spreading inside prisons and released
prisoners and prison staff becoming carriers is a real possibility.
This article traces and attempts to analyses the response of the prison authorities and the courts
to address the risk of the spread of the Corona virus in prisons. It emerges that prison authorities
and the courts were largely influenced by the dangerousness and risk to public order, rather
than the public health aspect. The article is divided into two sections: The first focuses on
attempts made by prison authorities to address the spread of the virus inside prisons; the second
section analyses decongestion efforts by the courts and the decision-making processes for
releasing prisoners on bail.

Response of prisons to the pandemic: a ‘make do’ approach2

The need to take steps to contain the spread of the contagion inside prisons became apparent
to the prison authorities around the time the national lockdown was announced by the
Government of India on March 24, 2020 (Mallapur 2020). Realizing the fact that social
distancing was not possible in the overcrowded prisons, prison departments across the country-

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file:///C:/Users/Lenovo/Dropbox/My%20PC%20(LAPTOPMFQ669F4)/Downloads/Raghavan2020_Article_Priso
nsAndThePandemicThePanopt.pdf (visited on 10th Aug. 2021)
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ibid

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initiated steps such as the setting up of isolation wards, quarantining of new prisoners,
screening of prisoners, staff and service providers, supply of masks and sanitizers, limiting or
prohibition of visits by lawyers and NGOs, and the suspension of cultural and group activities
(ibid.). Other measures taken by prison departments include creation of temporary prisons to
admit new prisoners and keep them in quarantine for 14 days before transferring them to the
regular prisons, transfer of prisoners from congested prisons to less crowded prisons, making
prisoners aware of the virus, and setting up Corona care centers inside or outside prisons, etc.
(ibid.). While prison authorities claimed that they were taking necessary preventive steps
within existing limitations (Trivedi 2020; Pandey 2020), there has been criticism of the
inadequacy of these measures and the conditions inside prisons (Jain 2020). This is exacerbated
by the fact that prisons are highly understaffed with around 30% vacancies (Tata Trusts 2019)
and grossly inadequate healthcare facilities, severely restricting their ability to respond to the
pandemic. In such a situation, facilities involving greater human supervision were put on hold,
for example, stopping interviews with family members and lawyers to prevent ‘outside
contact’. This has been critiqued on the basis of the fact that prison staff, service providers and
vendors continue to go in and out of prison (Trivedi 2020). It appears that stakeholders with
less power vis a vis the prison system were unable to negotiate with the system to protect their
rights. There was no attempt made by the prison system to involve the prisoners, families of
prisoners, lawyers and NGOs in taking decisions that had a direct bearing on the well-being of
prisoners and their families. Further, the temporary prisons set up to quarantine new prisoners
were reported to have poor living and sanitary conditions, which posed a danger to these
prisoners in terms of their health and mental health (Deol 2020). The measures taken by the
prison authorities reflect a ‘make do’ approach within limited resources, rather than a studied
response to a pandemic situation.

The narrative behind the decongestion of prisons3

In India, the supreme court (SC) of India took Suo moto cognizance of the issue on March 16,
and asked state governments to flee affidavits regarding the steps being taken to prevent the
spread of the disease in prisons and juvenile homes. In response to the public interest litigation
(PIL), state governments fled affidavits before the SC showing their willingness to release
prisoners on bail or parole, especially those arrested in less serious offences. In its orders passed
on 23rd March, the Court asked state governments to constitute a High-Powered Committee
chaired by the Chairperson of the State Legal Services Authority to identify categories of
prisoners who can be released based on criteria decided by them. It has also asked the under-
trial review committees (UTRCs) to meet every week to consider releasing under trials on bail
or PR Bond. With regard to further reducing the pressure on the prisons, the Court has reiterated
the orders passed in the Arnesh Kumar v. State of Bihar case (2014) to avoid making arrests in
case of persons charged with offences where the maximum sentence was less than 7 years, as
far as possible. Post the order of the SC passed on March 23, 2020, state governments across
the country constituted the three-member high powered committee (HPC) comprising the
Chairperson of the State Legal Services Authority, the Home Secretary and the Director
General of Prisons in the state. Initially, most of the HPCs issued guidelines for the release of
under trial prisoners on ‘temporary bail’ and convicted prisoners on ‘emergency parole’ in
offences where the maximum sentence was less than 7 years (Raghavan and Tarique 2020;

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ibid

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Raghavan and Dhenuka 2020). Gradually, as cases of COVID 19 were detected and began to
increase in prisons, the HPCs issued guidelines to release more categories of prisoners. As per
an online tracker on State/ UT Wise Prisons Response to COVID 19 Pandemic in India
managed by the commonwealth human rights initiative (CHRI), 18,157 cases of Corona
positive have been detected in prisons across India (prisoners as well as staff) including 17
deaths, as on October 25, 2020. An analysis of the category of prisoners who were considered
for temporary release on bail or parole by the HPCs provides interesting insights. Initially, as
mentioned earlier, most HPCs issued guidelines to consider those arrested or convicted in
offences were the maximum sentence was less than 7 years. Later, some of the HPCs broadened
the categories due to the spread of the virus, but their criteria for eligibility were based on the
purported seriousness of the offence rather than vulnerability to getting infected. Prisoners
arrested or convicted in offences relating to economic offences, organized crime, terrorism,
sexual crimes and national security were excluded from the eligible categories. Also, foreign
prisoners were excluded from consideration for release on temporary bail or emergency parole,
irrespective of the offence background. The national forum on prison reforms (NFPR), an
alliance of organizations working on prisoners’ rights, fled an intervention application (IA) in
the SC in the ongoing Suo moto PIL, highlighting the alarming situation in prisons and
requesting the court to pass directions to reduce the prison population, take effective measures
to improve health and hygiene conditions inside prisons and ensure the safe passage of released
prisoners to their homes due to the lockdown situation.
For example, it suggested that prison specific readiness and response plans must be developed
in consultation with medical experts. It further suggested that the Interim Guidance on Scaling-
up COVID-19 Outbreak in readiness and response operations in camps and camp like settings
jointly developed by the International Federation of Red Cross and Red Crescent (IFRC),
International Organization for Migration (IOM), United Nations High Commissioner for
Refugees (UNHCR) and World Health Organization (WHO), published by Inter-Agency
Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for
similar circumstances (NFPR 2020, unpublished). Some of the HPCs were more liberal than
the others. For example, the Delhi HPC issued guidelines vide its meeting held on April 18,
2020, that ‘prisoners/ UTPs who are suffering from HIV, Cancer, Chronic Kidney Dysfunction
(UTPs requiring Dialysis), Hepatitis B or C, Asthma, and TB’ may be considered for release
on bail or parole’. The Haryana HPC expanded the category of prisoners for to include those
above the age of 65 years, except those involved in multiple crimes, to be released on six weeks
special parole. Karnataka HPC expanded the scope of persons being eligible to be released on
bail to include persons with mental illness and offences triable by magistrates’ courts. Further,
the Committee has also increased the amount for legal aid empaneled advocates to be paid
Rs.1500 per bail application, on account of the emergency. The Madhya Pradesh HPC has
released under trials who have been in prison for more than 5 years. The Chhattisgarh HPC has
included offences triable by magistrates like the Karnataka Committee, so also lesser offences
under the protection of children against sexual offences (POCSO) Act. Chhattisgarh has also
considered releasing prisoners in preventive custody under Sect. 151 of the criminal procedure
code (CrPC) and also Sect. 107 and allied provisions of the CrPC. The Jammu and Kashmir
High Court has directed that all prisoners who are convicted in one offence and have already
served a term of 10 years (8 years for women); except those convicted under narcotics drugs
and psychotropic substances (NDPS) Act, POCSO or violence against women cases including

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acid attack; to be released. They have also directed that prisoner serving sentences in lieu of
fen to be released (NFPR 2020, unpublished).
In terms of number of prisoners released as a result of the SC PIL, according to the CHRI
tracker, 68,264 prisoners have been released as on October 25, 2020, leading to a reduction of
17.2% in the overall prison population (CHRI 2020). Another report by the National Legal
Services Authority, 42,529 under trial prisoners and 16,391 convict prisoners have been
released as on May 15, 2020. Given the fact that the occupancy rate in prisons across the
country is 118.5% as on December 31, 2019, the occupancy rate as a result of these releases is
around 101.3%, which means that the situation of overcrowding has undergone a marginal
improvement. It must be noted that since there is no available data on new admissions, these
figures may not reflect the ground realities. Even if these figures were considered as correct,
social distancing is by no means possible under the current circumstances. This is particularly
true of prisons in cities and major towns where the overcrowding situation continues to be
dismal. For example, the prison population in Mumbai Central Prison, also known as the Arthur
Road Prison, as on July 31, 2020, is 1843, whereas its official capacity stands at 804, implying
an occupancy rate of 229.22% (Government of Maharashtra 2020). The absence of gender
disaggregated data on release of prisoners indicates the lack of importance given to the needs
of women prisoners. Baxi and Singh (2020) say that ‘all women in prisons without distinction
of charge, crime or sentence, whether pregnant, lactating, menstruating or menopausal,
differently abled or ailing may be thought of as “custodial” minorities’ and advocate their
release irrespective of the offence for which they have been arrested or convicted. They
emphasize that alternatives to imprisonment should be innovated for all convicted women, and
gender and sexual minorities. Release of women prisoners is important also from the point of
view that there are children (below 6 years of age) living with them. For example, as on May
10, 2020, there were 352 women prisoners with 26 children in the Byculla District Prison in
Mumbai, as against its official capacity of 200 (176% occupancy). Post the SC orders and the
HPC guidelines, 147 prisoners had been released as on March 31, 2020 (Shantha 2020).

Judicial Suo moto cognizance brief explanation4

IN RE: CONTAGION OF COVID 19 VIRUS IN PRISONS:
Date: 23-03-2020
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE L. NAGESWARA RAO
HON'BLE MR. JUSTICE SURYA KANT
By an order dated 16.03.2020, this Court had issued notice to all the States and Union
Territories, to show cause why directions should not be issued for dealing with the present
health crisis arising out of Corona virus (COVID-19) with regard to Prisons and Remand
Homes. Several States and UTs have filed their responses detailing measures and initiatives

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er_23-Mar-2020.pdf (visited on 10th July 2021)

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taken while dealing with Corona virus (COVID-19) in respect of persons detained in Prisons
and Remand Homes.
States of Gujarat, Manipur, Meghalaya, Odisha and UTs of Dadar & Nagar Haveli, Daman &
Diu, National Capital Territory of Delhi and Puducherry have not filed their responses. The
State of Andhra Pradesh, Punjab, Tamil Nadu, Madhya Pradesh, Kerala, Himachal Pradesh and
UT of Jammu & Kashmir, though have filed their responses with regard to the measures taken
for prisons but have not submitted their response in relation to measures taken for juveniles in
Remand Homes.
An overview of the responses reflects those considerable measures for protection of health and
welfare of the prisoners to restrict the transmission of COVID-19 have been taken by the State
Governments. These measures generally include creation of isolation wards, quarantine of new
prisoners including prisoners of foreign nationality for a specific period, preliminary
examination of prisoners for COVID-19, ensuring availability of medical assistance, entry
points scanning of staff and other service providers, sanitization and cleanliness exercise of
prison campus and wards, supply of masks, barring or limiting of personal visit of visitors to
prisoners, suspension of cultural and other group activities, awareness and training with regard
to stoppage of transmission of COVID-19 and court hearings through video conferencing
among others. Many states have also initiated the process of installing digital thermometers for
the purpose of examination of the prisoners, staff and visitors. Some of the States have taken
similar measures for Remand Homes as well. In other significant measures the States of Bihar,
Karnataka, Maharashtra, Uttar Pradesh, Tripura, Jharkhand, Goa, Kerala, Telangana and UTs
of Jammu & Kashmir and Chandigarh have advised the prison authorities that visitors may be
allowed to interact with prisoners only through video calling or telephonic call. States of Goa,
Kerala, Telangana, Karnataka and Haryana have adopted screening of prisoners returning from
parole to prevent possible transmission. State of Uttar Pradesh has constituted 'COVID-19
Special Task Force' in all 71 prisons comprising of the Superintendent, the Jailor, Circle
Officer/Deputy Jailor, Medical Officer and One member of para-medical staff to monitor the
prevention of transmission of infection. Importantly, Rajasthan and Jharkhand have taken
measures to decongest the prison by transferring prisoners from congested prisons to other
prisons where the number of prisoners is low. The State of Punjab has directed to identify
places in and around the prison, which can be used as a temporary prison in case if there is an
outbreak of the virus. The State of Haryana has directed prisons to prepare blockwide time
table relating to food and other services for prevention of overcrowding. Andhra Pradesh,
Uttarakhand, Punjab and Maharashtra and UT of Ladakh have identified special groups of
prisoners, which are more vulnerable such as old age prisoners with respiratory diseases etc. to
infections for special focus and scrutiny.
Looking into the possible threat of transmission and fatal consequences, it is necessary that
prisons must ensure maximum possible distancing among the prisoners including undertrials.
Taking into consideration the possibility of outside transmission, we direct that the physical
presence of all the undertrial prisoners before the Courts must be stopped forthwith and
recourse to video conferencing must be taken for all purposes. Also, the transfer of prisoners
from one prison to another for routine reasons must not be resorted except for decongestion to
ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any
delay in shifting sick person to a Nodal Medical Institution in case of any possibility of
infection is seen. We also direct that prison specific readiness and response plans must be

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developed in consultation with medical experts. “Interim guidance on Scaling-up COVID-19
Outbreak in Readiness and Response Operations in camps and camp like settings” jointly
developed by the International Federation of Red Cross and Red Crescent (IFRC), International
Organization for Migration (IOM), United Nations High Commissioner for Refugees
(UNHCR) and World Health Organization (WHO), published by Inter-Agency Standing
Committee of United Nations on 17 March, 2020 may be taken into consideration for similar
circumstances. A monitoring team must be set up at the state level to ensure that the directives
issued with regard to prison and remand homes are being complied with scrupulously. The
issue of overcrowding of prisons is a matter of serious concern particularly in the present
context of the pandemic of Corona Virus (COVID – 19). Having regard to the provisions of
Article 21 of the Constitution of India, it has become imperative to ensure that the spread of
the Corona Virus within the prisons is controlled. We direct that each State/Union Territory
shall constitute a High-Powered Committee comprising of (I) Chairman of the State Legal
Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is
known as, (ii) Director General of Prison(s), to determine which class of prisoners can be
released on parole or an interim bail for such period as may be thought appropriate. For
instance, the State/Union Territory could consider the release of prisoners who have been
convicted or are undertrial for offences for which prescribed punishment is up to 7 years or
less, with or without fine and the prisoner has been convicted for a lesser number of years than
the maximum. It is made clear that we leave it open for the High-Powered Committee to
determine the category of prisoners who should be released as aforesaid, depending upon the
nature of offence, the number of years to which he or she has been sentenced or the severity of
the offence with which he/she is charged with and is facing trial or any other relevant factor,
which the Committee may consider appropriate. The Undertrial Review Committee
contemplated by this Court In re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700, shall
meet every week and take such decision in consultation with the concerned authority as per the
said judgment. The High-Powered Committee shall take into account the directions contained
in para no.11 in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Some States/Union
Territories who have not filed responses may file the same within three weeks from today. List
the matter after three weeks.
Safety measures and precaution to be maintained for prisoners at Jaipur district jail5
Name of the case: Suo Motu V. State of Rajasthan.
Case Number: D.B. Civil Writ Petition No.5618/ 2020
Forum: Rajasthan High Court
Date of Order: 17.05.2020
Challenge in brief: The Suo moto PIL was registered on the basis of news reported in various
news channels of Rajasthan stating that a huge number of prisoners (approx. 55), both convicts
and undertrials at Jaipur district jails were detected corona positive.

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https://www.thelawpoint.com/post/compilation-of-judicial-pronouncements-during-covid-19-phase
iii?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration (visited on 10th July
2021)

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Order: Taking into account the circumstances posed by the outbreak of Covid-19 pandemic,
the Court directed the state government to maintain high standards of care for the jail inmates.
It also issued certain directions in this regard such as incorporation of the COVID-19 SOP for
jails so that the accused will be tested by local medical authorities for coronavirus and if found
negative then only the accused person will be remanded to jail/custody. The jail authorities
who are in direct contact with the prisoners also require special attention to ensure that such
virus is not transmitted to them or to their families and authorities will ensure test of jail staff
on a regular random basis. The isolation wards in the jails shall be inspected by the medical
officers of each district and take steps which will be necessary for maintaining cleanliness and
sanitization. The aforesaid directions were made to the State of Rajasthan in order to
incorporate the same in their SOP for jails for the purpose of the present COVID-19 pandemic.
SC directs states to reveal criteria for release of prisoners, no surrender for now6
Date- 17-07-2021
The Supreme Court on Friday directed that prisoner granted bail or parole as a measure to
decongest jails need not surrender till further orders as the threat of the Covid-19 third wave
looms large. The order was passed by a three-judge bench headed by Chief Justice of India
(CJI) NV Ramana while dealing with a Suo motu petition on containing the spread of Covid-
19 in prisons. The bench also directed states to inform within a week on the criteria adopted by
the various state high powered committees (HPC) to release prisoners.

Conclusion
It can be said that the policies and measures taken towards preventing the spread of COVID 19
pandemic in prisons has reinforced existing biases against prisoners. Inside prisons, while steps
like hygiene measures, and the use of masks and sanitizers were taken to prevent the outbreak
of the virus, it is interesting to note that prison authorities were more than willing to release
prisoners, especially those arrested or convicted in less serious offences. Similarly, the High-
Powered Committees set up by the Supreme Court issued guidelines to release prisoners
arrested in less serious offences. The HPCs excluded prisoners arrested or convicted in offences
such as economic or organized crimes, sexual offences, persons under terror related or national
security laws and foreign nationals. Despite these guidelines, the trial courts were hesitant to
release prisoners in the eligible category and released only those who, in their opinion, were a
lower risk on a comparative scale. It emerges from this analysis that prison authorities and
courts were willing to release low risk categories of prisoners from the point of view of their
offence background and not from the point of view of risks to their health. Also, while prison
authorities were more willing to ‘let out’ the prisoners, courts were more inclined to ‘keep them
in’. The major concern of the prison and judicial authorities was to somehow manage the
situation without disturbing the ‘dangerousness’ and risk to ‘law and order’ narrative regarding
prisoners. While on the surface, it may appear that the actions taken by the prison authorities
and the courts were borne out of concern for the prisoners, and to some extent that may be the
case, a deeper analysis shows that their health vulnerabilities were not the primary concern of
the authorities. This is demonstrated by the fact that prisoners arrested under serious offences,
despite having serious health problems or comorbidities, were not considered eligible for

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https://www.hindustantimes.com/india-news/sc-directs-states-to-reveal-criteria-for-release-of-prisoners-no
surrender-for-now-101626442034740.html (visited on 10th July 2021)

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release. Even in the case of those eligible for release, the courts exercised due diligence
parameters while considering their bail applications, as if these were ‘normal times’. In
deciding the categories of prisoners who could be released, the HPCs created categories of
those who could be released based on their purported dangerousness rather than their
vulnerability to getting infected. Surveillance was maintained in prison through isolation wards
and quarantine facilities and outside prison, this was achieved through court orders which
required those released on bail to report to the police station on a regular basis. The pandemic
provided an opportunity to the policy makers to undergo a paradigm shift with regard to
viewing prisoners as human beings with individual needs, but one finds that they continued to
be treated as categories that needed to be segmented and watched over, based on their perceived
risk to society.

References
1. file:///C:/Users/Lenovo/Dropbox/My%20PC%20(LAPTOPMFQ669F4)/Downloads/
Raghavan2020_Article_PrisonsAndThePandemicThePanopt.pdf
2. https://www.thelawpoint.com/post/compilation-of-judicial-pronouncements-during-
covid19phaseiii?utm_source=Mondaq&utm_medium=syndication&utm_campaign=L
inkedIn-integration
3. https://www.hindustantimes.com/india-news/what-covid-19-taught-us-about-state-of-
our-prisons-101614046131817.html