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Temporary release of prisoners amid COVID-19 pandemic: Blanket exclusion of prisoners booked under Special Acts challenged in Bombay HC

Meera Emmanuel

The Bombay High Court has issued notice in a plea challenging a decision to exclude prisoners in Maharashtra booked for offences under Special Acts from being considered for temporary release to decongest prisons amid the COVID-19 pandemic.

The decision was taken by a High Powered Committee constituted pursuant to the Supreme Court’s directive last month calling for the decongestion of prisons with a view to minimising the spread of the Coronavirus.

To this end, the Supreme Court on March 23 had urged the states to consider the release of prisoners facing upto 7 years’ sentence.

The petitioners point out that on March 25, the High Powered Committee for Maharashtra decided that undertrials and convicts booked for serious economic offences/bank scams and offences under Special Acts (other than IPC) like MCOCA, PMLA, MPID, NDPS, UAPA, etc. would not be eligible for release.

This decision has now been challenged as being based on an arbitrary, artificial classification and against the Supreme Court’s directive, besides being counter-productive to the aim of decongesting prisons. The petition states,

“… the discretion given by the Hon’ble Apex Court was to ensure that the Committee shall take into consideration the relevant parameters so as to ensure that the right category or class of prisoners are released rather than making blanket exceptions based on irrelevant criteria.”

The petition has been filed by two persons arrested in 2018 and 2019 for offences under the Maharashtra Protection of Interest of Depositors (MPID) Act. The sentence applicable to the two prisoners is 6 years’ imprisonment.

Notice in the matter was issued on Friday by a Justice RG Awachat. Advocates Pradnya Talekar and Madhavi Ayyappan of Talekar & Associates appeared for the petitioners.

The petitioners also argue that the Committee’s decision to exclude prisoners booked under Special Acts is contrary to the Supreme Court’s directive urging for the states to apply the guidelines issued by the Apex Court in the case of Arnesh Kumar v. the State of Bihar and Another.

Particularly, it has been pointed out that in the Arnesh Kumar case, no distinction was made between offences under Special Acts and other criminal offences. As stated in the petition,

“… when the Hon’ble Apex Court did not make any distinction between the offences punishable under IPC and the Special Acts, it was not permissible for the High Powered Committee to make such a classification, especially in light of the present critical circumstances, where life of the prisoners as well as the authorities and the fate of the nation is at stake."

It is the petitioners’ case that the High Powered Committee failed to appropriately exercise its discretion for deciding which prisoners should be released.

In this regard, the petitioners argue that the Committee ought to have borne in mind all four factors put forth by the Supreme Court, while deciding which prisoners to release. These factors are nature of offence, severity of offence, number of years to which the convict has been sentenced, and any other relevant factor.

Instead, the petitioners contend that the Committee has watered down the essence of the Supreme Court’s March 23 direction in exercising its discretion.

In this backdrop, the petitioners argue that the High Powered Committee’s March 25 decision would also place the petitioners and others at risk of contracting the viral disease.

"The maintenance of social distancing is an impossible condition in the prisons, which are severely over-crowded. Furthermore, the State is not in a position to provide the medical facilities in case the virus infects the prison inmates."

In particular, it is stated that the petitioners are lodged at Harsul Jail in Aurangabad, which holds over 1,800 prisoners, although it only has a sanctioned strength of 589. Only 74 prisoners were released on temporary basis pursuant to the decision of the High Powered Committee, the petition states.

While this is the case, the petitioners assert that there is no rational nexus between the Committee’s exclusion of prisoners booked under Special Acts from being considered for temporary release and the Supreme Court’s directive to decongest prisons and thereby curb the spread of the Coronavirus.

"… around 50% of the prisoners are accused of or are undergoing imprisonment for the offences punishable under the Special Acts, whereas many of them would fall within all the other criterion prescribed by the Supreme Court. As such, due to the exception carved out by the High Powered Committee, the very purpose that was intended by the Hon’ble Apex Court (of decongestion and social distancing) stands frustrated."

The petitioners add,

“If at all the offence is of serious nature and having a long sentence, they would not be eligible for benefit in terms of Supreme Court guidelines, however, to disentitle an entire group of persons based on a wholly irrelevant criterion is not only arbitrary but reeks of non-application of mind.”

Apart from this, the petitioners have also pointed out that the state’s Undertrial Review Committee is yet to meet or take any decision, despite instructions for its functioning by the Supreme Court in the March 23 order as well as the in Re: Contagion of COVID-19 in the Prisons case.

“The petitioners submit that it is least expected that in the wake of such an international emergency, the State instrumentalities are acting in the most casual and indifferent manner, atleast in respect of the prison inmates.”
Petition filed in Bombay High Court

Given these submissions, the petitioners have made the following prayers, among others:

  • That the Court quash the March 25 decision of the Maharashtra High Powered Committee to exclude prisoners booked under Special Acts from being considered for temporary release, in view of the COVID-19 pandemic;

  • That the Undertrial Review Committee be directed to take a decision with regard to the release of undertrial prisoners, in view of the Supreme Court’s directions on that issue.

  • That the petitioners be released on temporary bail in line with the Supreme Court’s recent directive.

The matter is scheduled to be taken up next on April 8.

[Read the Petition]

Decongestion of prisons final (1) (1).pdf
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