Author :- Ayesha Majid
The unprecedented Covid- 19 has created new challenges and new situations in every field and the law and legal practice is no different. It has led to many changing dimensions ranging from the virtual meeting apps, remote hearing, closing of courts to electronic filing, restricting hearing to only urgent matters etc. One of the urgent situations faced by the courts during these challenging times was the overcrowding of prisons.
According to a World Prison Brief, India ranks fifth in terms of the prison population in the world and according to the Prison Statistics of India released in 2018 Indian prisons are filled 17.6% more than their authorized capacity.
STAND OF COURTS
The Supreme Court of India, on 23rd March, 2020 took a Suo moto cognizance in a matter titled ‘contagion of COVID 19 Virus in prisons’ while suggesting that the prisoners convicted of offences punishable up to 7 years or less could be considered for parole or interim bail. The supreme court has already recognized that “in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application.”
However, the idea of the interim bail prior to the pandemic was much focused on the purpose to save the reputation or extreme urgent cases like death of a family member, marriage amongst family etc. of a person till the adjudication on the main application of bail. This was reiterated by the Hon’ble Court in Lal Kamlendra Pratap Singh v. State of U.P. and Ors. in which the court held that “In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation….”
But in the present situation caused by the unforeseen pandemic, interim bail provision is being used by the courts to reduce the overcrowding in the prisons. This provision of interim bail though is discretionary to the courts but it has to be used by applying a judicial mind to it as at the stage of determining a prayer/ request for grant of interim bail, the merits and severity of the case may not have been completely appreciated by the Courts. Thus, committees have been set up to apply a judicial mind and to come out with a workable solution.
Though earlier the Rajasthan High Court was of the view that bail applications would not amount to ‘matters of extreme urgency’, such order was subsequently stayed by the Supreme Court.
The Bombay High Court was of the view that unless an extremely urgent situation for entertaining a bail application is pointed out, the mere fact that the accused is undergoing either pre-trial or post-trial detention would not be entertained by the Court.
The Delhi High Court has extended the liberty to undertrial prisoners to apply for interim bail, and explicitly provided that such petitions “shall also be taken into consideration by the appropriate courts and the said petitions shall be decided in accordance with law”.
Thus, there has been a major departure from the basic grounds which were followed by courts to grant interim bail to UTPs. New high-powered committees of respective states have established new grounds to give temporary bails and now it has been made mandatory to decide the application of bail within 7 days. Also, prior to COVID-19 there was no specified time period to give the interim bail but now the mandatory time period of 45 days has been directed which can further be extended in accordance with the prevailing situation. However, if the person released does any offence or does not comply with the conditions then he can be again arrested and taken in custody.
Also, now the prisoners can be released on personal bond and surety bond is not compulsory. One of the major changes during COVID-19 is that now the courts have Suo moto power to grant bail to prisoners accused of less serious offences without them applying for the application. Also, the presence of accused in the courts is not mandatory and the proceedings are now conducted by following the social distancing principles through the electronic medium through video conferencing.
Also, according to the high-powered committee of Haryana state, once parole has been granted to a convict, the Executive magistrates have now been empowered to accept personal bonds and sureties though VC or at jail gate. Also, in case that the sureties are from outside districts such surety shall appear before the executive magistrate appointed for that district and the surety bond can be exchanged between the executive magistrates through the VC.
It has also been directed that if the convict has received regular parole then the consent of sureties can even be taken through WhatsApp or through SMS or through mobile. Also. The investigating officers have now been advised to avoid the arrest of first offenders booked for any offence punishable for imprisonment up to 7 years unless it is utmost necessary for the purpose of investigation.
MENTAL HEALTH OF THE PRISONERS
This new pandemic situation has also caused a significant impact on the mental health of the prisoners. Reports suggest that even in normal times mental health of the prisoners remains weak in prisons. In times of pandemic, things have become worse. This is because hearings before different judicial forums have been significantly reduced and families of prisoners have been asked to refrain from meeting the inmates. Jail authorities have also reduced movement of prisoners and have cancelled all social activities– thereby completely isolating prisoners in jails. Although, in the need of the hour, this makes prisoners more vulnerable to mental health disorders.
There have been new provisions to deal with the maintenance of order in the prisons whereby the high-powered committees have suggested that prisoners be allowed to talk to their family members through video conferencing or jail telephone after taking health precautions.
There has been a major impact on the mental health of the prisoners across the borders of different countries due to the isolation caused by the social distancing. One of the major effects of this can be seen in Italy where after the coronavirus outbreak, many prison rules were changed to improvise the safety measures. Inmates were not restricted from meeting any visitor, even family members. This in turn led to prison riots, resulting in the death of prisoners and jail authorities. The result of the Coronavirus-fuelled tensions inside the prisons and jails in the USA are resulting in riots, standoffs and hunger strikes with incidents being reported in prisons across New York and Washington.
Also, WHO has published interim guidance on how to deal with the coronavirus disease (COVID-19) in prisons and other places of detention, entitled “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”.
The guidance provides useful information to staff and health care providers working in prisons, and to prison authorities. It emphasises on the methods to prevent and address a possible disease outbreak and stresses important human rights elements that must be respected and kept in mind while responding to COVID-19 in prisons and all the other places of detention. Proper access to information and adequate health care facilities, including for mental disorders, are important aspects in protecting human rights in such places.
The new pandemic situation has caused a major change in the way the legal system functions. With regard to Article 21 which is regarded as inviolable right to everyone, it became imperative for the court to bring out measures for the safety and health of the prison inmates. This led to the changing criteria for granting of interim bail and emergency parole. Thus, ultimately the rights of prisoners are being addressed for their better health and safety. But this new way of dealing by the courts also raises a question as to whether we need this type of a pandemic to finally address important issues such as the overcrowding of prisons or mental health of prisoners.