By: Dr Farrukh Khan, Advocate & Somya Mishra, Advocate
Social security is always considered to be a boon for any society. This security is guarded by various pillars like police, law enforcement and prisons. Recently we have witnessed a huge change in our prison policy due to the pandemic. In this article we shall begin with gathering all the information related to this issue and then conclude it by stating an analysis of the situation.
The Rajasthan High Court bench comprising of Chief Justice Indrajit Mahanty and Justice Ashok Kumar Gaur passed certain directions as follows:
1-The State Government was directed the State Government to get the accused persons tested by local medical authorities for corona virus and to remand them to police custody only if found negative.
2-After this test, the accused spends 21 days in isolation ward. It was also directed that before releasing the accused persons from isolation, they must be again checked up to verify whether they have developed any symptoms or not. Consequently, they shall be shifted to general ward.
3-The same process of checking shall also apply to the jail authorities who had come in direct contact with the accused persons.
4-Proper steps for sanitization of the isolation wards must be carried out as per the suggestions of the medical officers.
5-Jail doctors must be made available for checking the prisoners on a day-to-day basis.
In addition to this, the Supreme Court also directed all the states and union territories to set up high level committees to ascertain a certain class of prisoners who could be released on parole for four to six weeks. The class ascertained was that consisting of prisoners serving a term for less than seven years and undertrial prisoners. The sole intention behind this was to prevent over-crowding of prisons. If we look at it from the current-situation perspective, the decision of releasing the prisoners seems quite reasonable. However, there are certain flaws which were required to be thought of before making such a decision.
1-The prisoners are left to face a lot of vulnerable instances outside where the society recognizes them as criminals and shall not let go of any opportunity to make these prisoners feel depressed. It is a mental torture to leave a prisoner among people who despise his existence.
2-Thinking from the other side, it also creates a difficult situation for the victims as they shall not find it a comfortable environment for themselves when the accused is back from the prison for reasons whatsoever.
3-Releasing of dangerous criminals is a threat to public safety as well. It is an accepted fact that a pandemic is a huge issue but, this should not make us forget the fact that these people are kept behind the bars for a certain reason. This manner of releasing the prisoners shows a clear violation of the criminal justice system.
In compliance of the directives of NALSA, SLSAs have initiated mechanisms to achieve the target of “social distancing in Prisons” by taking various measures with the ultimate object of reducing over-crowding in jails. According to the NALSA’s report,
“SLSAs have actively assisted High Powered Committees identify and complete the necessary formalities for the release of prisoners, both undertrials and convicts, during the pandemic. In pursuance of the recommendations of such Committees, a release of 42,529 undertrial prisoners as well as 16,391 convicts on parole, etc. has been secured with the assistance of the Legal Services Institutions. Apart from the above, 243 undertrial prisoners have also been granted statutory bail under Section 436A of CrPC. Moreover, legal representation has also been provided to 9,558 persons at the remand stage in different States and Union Territories across the country.”
Taking the above informative data into consideration, it is very sad to say that we are going through such a phase that we are unable to find a corrective measure which is actually helpful in all aspects. Indian jails are in a very bad state and our practical implementation of jail reforms are always pending. Had these reforms been practically implemented a long time back, this problem of over-crowding wouldn’t have come up in the first place. When the increasing rate of crimes is a known issue to every second citizen of this country, there is no other way to make it more obvious that there will be more criminals as well. Considering this, there should have been more cells built already. Our Government has cared enough to give us a 597 feet Statue of Unity in four years and the same Government could have also successfully implemented the prison reforms. The problem lies in escalating the right issues and taking up things systematically. Now the problem has escalated so much that the society is undergoing a threat of a pandemic and also of released criminals.
On a related note, it is also interesting to note a strange paradox in the approach. Amid the lockdown when Courts are barely functioning ( only for most urgent cases), law enforcement agencies have adopted a mechanical approach of arresting people knowing very well that with limited functioning of courts, the accused persons’ right to approach courts for bail is very limited. Recent handling of Delhi Police in context of arrests being made for FIRs lodged for anti CAA protests and in Delhi riots matter has also been criticized heavily. Arresting of students and protesters at this juncture who are no threat to society has raised serous questions. While Courts have enlarged many persons, who are accused in the connected FIRs, on bail yet, many people who are arrested are not able to exhaust their legal remedies due to restrictions imposed by national lockdown. The question is not entirely legal, and it has its own share of political tone and tenor.
Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates. Somya Mishra is an Advocate, working with Diwan Advocates