What Covid-19 taught us about state of our prisons

Between April 1 and June 30, 2020, the overall occupancy in prisons came down to 93.3% from 117.6%, the pre-covid rate

The pandemic taught us, and continues to teach us. In the context of prison reforms, one of the biggest lessons we learnt is that it is indeed possible to decongest prisons.

On March 11, 2020 the World Health Organization declared Covid-19 as a pandemic. In less than a week, the Supreme Court (SC) took suo motu cognisance of the pandemic and noted that the occupancy rate of our prisons is 117.6%. In some places, like in Uttar Pradesh, it was as high as 176.5%. Additionally, the rate of ingress and egress of prisoners, staff, visitors and lawyers was very high. For these reasons, the SC observed that prisons were “fertile breeding grounds for incubation” of Covid-19.

The India Justice Report 2020 (IJR) released last month provides a good analysis that could form the basis of a sustainable programme of decongesting prisons. The report points out that undertrials constitute nearly 70% of all prison inmates. In 35 states and UTS, the share of undertrial inmates was above 50%. Over five years, the share of undertrial prisoners shows an increasing trend in 23 states/uts.

As per the High Powered Committees, appointed by the Supreme Court in March 2020 “to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate”, prisoners (convicted and under trial) facing a maximum punishment of up to seven years or less, could be considered for release.

Similarly, the Under Trial Review Committees (UTRCS) were directed to meet every week to take necessary decisions in accordance with that judgment.

The Commonwealth Human Rights Initiative (CHRI) found that the cumulative impact of the directions given by the SC resulted in the overall occupancy in prisons coming down to 93.3% between April 1 and June 30. Inspite of that about 27% prisons across the country were still overcrowded. It is noteworthy that an effort to decongest prisons was successful in reducing the overcrowding, and quite likely resulted in a decline in the spread of the virus. So why can’t this be done the rest of the time? If video-conferencing facilities had been operational across the country perhaps many more prisons would have been decongested. According to the IJR, as of December 2019, only 16 States/uts had 90% of their jails equipped with VC facilities. Five of the large and mid-sized states were less than 50% equipped: Kerala (42%); Rajasthan (38%); West Bengal (32%); Karnataka (31%) and Tamil Nadu (9%).

In 2018, the SC set up a threemember committee to look into prison reforms as well as to examine the functioning of the UTRCS, a district-level oversight mechanism to conduct periodic reviews of undertrials. More than two years later, a bulk of UTRCS remains partially operational. Coming to the issue of adequate human resources, vacancies at all levels continue to haunt prison administration, worsening the condition of inmates. IJR records that nationally, medical staff vacancies have risen from 35% (as of Dec 2016) to 41% (as of Dec 2019). The Model Prison Manual 2016 mandates a minimum of one medical officer for every 300 prisoners and one full-time doctor in central prisons. In half the States/ UTS about 1 in 4 positions remains empty. Uttarakhand had no sanctioned medical officer appointed.

Our criminal justice jurisprudence shifted long ago from being custodial, punitive and deterrent to correctional, rehabilitative and restorative. Many states have not thought in these terms and IJR informs us that there are no sanctioned posts of welfare/ probation officers, psychologists, lawyers, counsellors, social workers and so on in some states. This has resulted in skewed figures where nationally there is one probation/ welfare officer for 1617 prisoners and one psychologist/ psychiatrist for 16,503 prisoners. These shortfalls are indicative of a mindset that dehumanizes persons in prisons; relegating them to the recesses of our mind, undeserving of good medical care.

Magistrates and judges need to consider prison conditions and whether they are in consonance with Article 21 of the Constitution, which guarantees life and personal liberty to all.

Justice Madan Lokur is a former judge of the Supreme Court of India, and is currently a judge in the Supreme Court of Fiji. The India Justice Report 2020 released by Tata Trusts examines the state of justice delivery across prisons, judiciary, legal aid and police.the views expressed are personal