COVID-19 offers an opportunity to decongest jails

File Photo: Tihar Jail

File Photo: Tihar Jail

Following a Supreme Court suggestion to decongest prisons, states are releasing hundreds of convicts and undertrials either on interim bail or parole.

Prison authorities in Delhi, Assam, Maharashtra, Punjab and Tamil Nadu have freed inmates sentenced for up to seven years or less.

Many have even barred prisoners from meeting outsiders.

Welcoming the step, experts suggest the practice could be followed in future as well, at least with undertrials facing reasonably lesser charges.

Former Law Secretary PK Malhotra feels that, “Under Section 436 of CrPC, undertrials who have spent half the duration of jail term pending trial could be released on bail.”

A 2018 report of National Crime Records Bureau calculates that Indian jails house over 4,50,000 prisoners. That is 17.6% more than their authorised capacity. The figures underscore the challenge that social distancing poses for prison authorities.

Former Allahabad High Court Judge Justice Satish Chandra feels that a “decision can be taken on remitting 25% of the jail term, given the conduct of prisoners and gravity of the charge faced by them.”

Citing instances where courts had taken a liberal view on remitting sentences, the former judge cited instances when people charged with petty crimes like pick-pocketing have had their sentence reduced. Courts only issue guidelines, it is the government that has to frame policies, he added.

On March 28, Tihar Jail released over 400 inmates. The same day, Uttar Pradesh bailed out to 11,000 prisoners, including 8,500 undertrials, on personal bonds for eight weeks. Assam’s Tezpur Central Jail released 41 prisoners. Odisha government released 80 prisoners on parole. Tamil Nadu released 58 prisoners from the Madurai central jail, 21 from the Theni district jail and 202 from the Coimbatore Central Prison. Maharashtra, which has one of the highest number of cases of COVID-19, freed 601 prisoners from 37 jails in three days since March 30.

Experts also feel that the decongestion of jails could be enforced in tandem with the decongestion of courts.

“The principle of bail being the rule and jail an exception must be followed even otherwise,” Ajay Brahme, Senior Advocate said.

“If appropriate technology and enabling biosurveillance, keeping intact one’s residuary rights, is available, the undertrials unless charged for grave offences, must be released. This would check overcrowding. The need is, however, to build more prisons lest the infraction of the majesty of the law becomes a norm,” Brahme added.

On March 16, 2020, taking suo moto cognisance of the overcrowding of prisons in India, the Supreme Court noted a high risk of transmission of disease to prison inmates, with prisoners, prison staff, families of prisoners and lawyers entering and leaving jails frequently.

Citing provisions under Article 21 of the Constitution (which protects life and personal liberty), a bench comprising Chief Justice of India SA Bobde on March 23, asked all states and Union Territories to set up high-level panels that would consider releasing prisoners or undertrials on parole or interim bail if they are accused of offences entailing up to seven years in prison.

According to the Constitution, the administration of prisons falls exclusively in the domain of the State and is governed by the Prisons Act, 1894 and prison manuals of the state governments. The states thus have the primary role, responsibility and authority to change the current prison laws and rules.

However, it is the Central government that assists the states to improve security in prisons, medical facilities, among others.