The extraordinary relief: Judicial orders and guidelines to uncage prisoners in Delhi amidst the COVID-19 pandemic

Almost everything came to a halt on March 25, 2020, when the nationwide COVID-19 lockdown came into force, bringing along with it the novel phenomenon of ‘social distancing’.

This article is an attempt to highlight the prompt actions taken on the judicial side to protect prisoners from the incurable COVID-19 virus.

“Prison not only robs you of your freedom, it attempts to take away your identity”, President Nelson Mandela commented once, during his time of incarceration. Various studies indicate that contagious viruses proliferate rapidly in closed spaces, prisons being one of them.

The Supreme Court and other High Courts in India have always been active when it comes into protection of human rights. The intent was to de-congest the prisons and make sure that access to justice to those who were otherwise too poor to move courts or were unaware of their legal entitlements, is not denied.

One bitter truth is that India is fifth in terms of the prison population, which makes it next to impossible for prisoners to maintain social distancing. According to the Prison Statistics India Report – 2018, compiled by the National Crime Records Bureau (NCRB), there are 1339 prisons in this country, and 4,86,084 inmates inhabit such prisons.

The Way Forward

In 1978, the Supreme Court in Sunil Batra v. Delhi Administration, which is one of the oft-cited decisions on prisoners’ rights, went on to elaborate the concept of freedom behind the bars. VR Krishna Iyer J., who had famously and inimitably authored the leading opinion, went on to elucidate that the role of judicial vigour is equal to that of a constitutional sentinel in a prison setting.

Considering the emergent need to combat COVID-19 and keeping in mind that social distancing is one of the best tools we have at the moment, the Supreme Court on March 16 was proactive in issuing directions to all Chief Secretaries, Home Secretaries, and Directors General of Prisons of all states and union territories to suggest immediate measures which should be adopted to de-congest prisons.

The Supreme Court vide its order dated March 23, directed all the states/union territories to constitute High Powered Committees (HPCs) to determine and ascertain which class of prisoners can be released on parole/interim bail.

Interestingly, the Delhi High Court also on the same date directed the Government of NCT of Delhi to examine the feasibility of granting interim bail to Under Trial Prisoners (UTPs), who are booked in only one case in which maximum sentence is 7 years or less and he has completed minimum 3 months in jail.

Taking suo motu cognizance, the Delhi High Court on March 25 directed that in all matters where stay/bail/parole have been granted either by it or the courts subordinate to it, on or before March 16, shall stand automatically extended till May 15.

The Government of NCT of Delhi, vide its letter dated March 26, constituted the HPC under the Chairpersonship of Justice Hima Kohli of the Delhi High Court. The HPC met on March 28, April 7, April 18 , May 5 , and May 18, via video conferencing to resolve the criteria on which prisoners can be released. An overview of the resolutions passed in the said minutes of meetings is discussed below.

Minutes of meetings dated March 28 and April 7

It was resolved that the below mentioned categories of UTPs may be considered for grant of interim bail for a period of 45 days:

i. UTPs who are facing trial in a case which prescribes a maximum sentence of 7 years or less, or

ii. Even if the UTP has more than one case pending against him, and in all other cases, he is “on bail” except the one for which he is being considered and the same prescribes punishment for 7 years or less, and if

iii. UTP is in custody for a period of one month or more,

iv. In case of women UTP, if she is in custody for a period of 15 days or more,

v. UTPs who are more than 60 years of age and are in custody for 6 months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less,

vi. UTPs who are less than 60 years of age and are in custody for the last 1 year or more, facing trial in a case which prescribes a maximum sentence of 10 years or less,

vii. Remand Prisoners (with respect to whom charge sheet is yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less.

The HPC also took into account that the following category of UTPs, even if falling in the above criterion, will not be considered.

i. UTPs facing trial for intermediary/large quantity recovered under the Narcotic Drugs and Psychotropic Substances Act, 1985;

ii. UTPs facing trial under Section 4 & 6 of the Protection of Children from Sexual Offences Act, 2012;

iii. UTPs facing trial for heinous offences punishable under Sections 376, 376A, 376B, 376C, 376D, 376E and 326-A and 326-B of the Indian Penal Code, 1860;

iv. UTPs who are foreign nationals;

v. UTPs facing trial under the Prevention of Corruption Act, 1988 and the Prevention of Money Laundering Act, 2002; and

vi. Cases investigated by special investigating agencies including CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, and terror related cases etc.

Despite unprecedented directions that ultimately came to the rescue of the prisoners, there were still a large number of inmates who had been granted bail by different courts, but were still in a confined state, for want of sureties.

One may refer profitably to para 31 of the report in Moti Ram v. State of Madhya Pradesh, which admirably encapsulates the law in this regard.

“Even so, poor men – Indians are, in monetary terms, indigents – young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances – put whatever reasonable conditions you may.”

The Delhi High Court on April 9 directed the state to release all the UTPs who have not been released on bail owing to their failure to satisfy the condition of furnishing surety bond, on furnishing of personal bonds to the satisfaction of the Superintendent of Jail.

Minutes of meetings dated April 18 and May 5

i. The HPC also took into account the importance of releasing those prisoners who were suffering from HIV, Cancer, Chronic Kidney Dysfunction (UTPs requiring dialysis), Hepatitis B or C, Asthma and TB.

ii. The HPC did not deem it appropriate to grant parole to those convicts whose appeals against convictions are pending before the High Court of Delhi.

The HPC in its minutes of the meeting dated May 5 further observed that the initial period of interim bail of 45 days granted to 2177 UTPs, was going to expire on May 9, and for others, it would expire in the upcoming days of May and June.

Considering the possibility that it would be a dangerous proposition to send those UTPs back to jail, it was resolved that the period of interim bail granted earlier shall further be extended for another 45 days. To overcome the hardship of filing individual applications for extension and to save courts from a deluge of petitions, it was also resolved that a common judicial order may be passed in this regard.

Accordingly, on May 9, the Delhi High Court in Court on Its Motion v. Govt. of NCT of Delhi directed that the bail granted by different courts to the said 2177 UTPs, be extended for a period of 45 days from the date of its expiry on the same terms and conditions as earlier granted.

The Delhi High Court, once again on May 15, taking note of the extraordinary circumstances, in continuation of its order dated March 25, extended the interim orders till June 15.

Minutes of meeting dated May 18

In its meeting dated May 18, the HPC was apprised by the Director General (Prisons) that besides the resolutions implemented, a pragmatic approach has been adopted to tackle the threat of COVID-19. Several steps have been taken by the prison administration including regular sanitization of the lodgment areas, distribution of PPE Kits, masks and gloves etc.

It was further assured by the Special Secretary (Home), Government of NCT of Delhi, that ‘Emergency Parole’ granted earlier to the convicts shall further be extended for a period of eight weeks, and necessary modification will be made in two days.

After applaudable steps taken towards de-congestion of prisons, as on May 18, a total number of 1,069 convicts have been released on emergency parole, 2,258 UTPs have been released on interim bail, and 41 convicts have been granted remission of sentence.

Conclusion

It emanates from the discussion above that the courts have time and again stepped in and remedied the situation. The High Powered Committee while formulating guidelines, had adopted a practical approach and extended protection to the prisoners who were easily susceptible to infection by the COVID-19 virus.

It is trite that “bail is the rule and jail is an exception”, which is well established in our criminal jurisprudence. Courts measure competing sources present in the facts and circumstances of each case before enlarging a person on bail. Refusal of bail is a restriction on the personal liberty of an individual guaranteed under Article 21 of the Constitution of India.

In difficult times such as these, the Supreme Court and the Delhi High Court have been extremely vigilant about the fundamental rights of the inmates and have extended all possible relaxations to them.

Authors are Law Researchers in the Delhi High Court