By Adv. R. S. Agrawal
The SC has considered the possibility of outside transmission and directed 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.
IN THE judgement of the case – The Bharat Coking Coal Ltd. & Others v. AMR Dev Prabha & Others and 3 other civil appeals, delivered on March 18, 2020, a 3-judge bench of the Supreme Court, consisting of the Chief Justice of India Sharad Bobde, Justice Bhushan Gavai and Justice Surya Kant have underscored the importance of presence of element of public iA 3-JUDGE bench of the Supreme Court consisting of the Chief Justice Sharad Bobde, Justice L. Nageswara Rao and Justice Surya Kant has, through an Order passed in “RE: Contagion of COVID-19 Virus in Prisons” on March 23, 2020, expressed serious concern on the issue of overcrowding in the prisons in the country, particularly in the present context of the pandemic Coronavirus and stated that 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. The SC has considered the possibility of outside transmission and directed 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 to 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 Nodal Medical Institution in case of experiencing any possibility of infection.
The SC has also directed that prison specific readiness and response plans must be 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 (IRFC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on March 17, 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 SC has noted that having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that that the spread of Coronavirus within the prisons is controlled. With this in view, the SC has directed that each State/ Union Territory shall constitute High Powered Committee comprising (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation he is known as, (iii) 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.
The SC has made it clear that the court leaves 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 or she has been charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate. The Undertrial Review Committee contemplated by the SC in the Reference 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 judgement.
The SC has directed further, that 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. In this suo motu writ petition (Civil) No. 1/2020, the Supreme Court had passed and order on March 16, 2020 and 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 Coronavirus with regard to Prisons and Remand Homes. Several States and UTs have filed their responses detailing measures and initiatives taken while dealing with Coronavirus in respect of persons detained in Prisons and Remand Homes.
States of Gujarat, Manipur, Meghalaya, Odisha and UTs of Dadra & Nagar Haveli, Daman & Diu, National Capital Territory of Delhi and Pudducherry have not filed their responses. Quite a few States and Union Territory 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 that 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, quarantining 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, sanitisation and cleanliness exercise of prison campus and wards, supply of masks, barring or limiting personal 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 examining the prisoners, staff and visitors.
Some of the States have taken similar measures for Remand Homes as well. Importantly, Rajasthan and Jharkhand have taken measures to decongest the prisons by transferring prisoners from congested prisons to other prisons, where 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. Taking into consideration the possibility of outside transmission, the Supreme Court has directed 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. The court has directed the States and Uts, which have not filed responses till date, to do so in 3 weeks, when the matter has been ordered to be placed before it.