co-authored by Nikita Sonavane,Ameya Bokil

As India has climbed to the second spot in overall numbers of persons infected by COVID-19 across the world, the healthcare situation is deteriorating rapidly, especially in prisons. On 23 March, the Supreme Court ordered that state governments constitute “high-powered committees” to devise a criteria for granting interim bail or parole to undertrials and convicted inmates, respectively, to decongest prisons. Despite these measures, the governments and courts appear to be unable to control the crisis.

Prisons across India have shown high rates of infection, with those in Maharashtra being worst hit—with 2,061 inmates and 421 jail staff infected as of 23 September, and an increase of about thirty positive cases daily. In Andhra Pradesh, 928 prison inmates and 167 staff have tested positive across jails. Most states have not made this data available, but reports of outbreaks have been coming out from across the country.

Several public-interest litigations have been filed across various high courts to find a better approach to the problem. Meanwhile, the Supreme Court has refrained from monitoring the implementation of its March orders. To tackle the COVID-19 situation in prisons, four important measures are needed: reducing the quantum of arrests; increasing access to early bail; improving health infrastructure; and decriminalisation of poverty and marginalisation. The case of Madhya Pradesh, where we work as criminal lawyers and researchers, shows the urgent need for these interventions.

In early May,Indore Central Jail in Madhya Pradesh reported 32 COVID-19 positive inmates. In July, three guards and 64 of 82 inmates of Bareli sub-jail in Raisen district tested positive. In another few weeks, over a hundred more positive cases were detected in prisons across the state, including about fifty in Jabalpur Central Jail. Yet, there has been no effort to put out official data by the Madhya Pradesh prisons department, and relatives remain in the dark about the well-being of inmates.

As per official data, Madhya Pradesh has 131 prisons across 50 districts. This includes central jails, district jails, open jails and sub-jails. At the end of March, the prison population in the state was 40,955, despite an estimated capacity of 28,718. As per recent statistics made public by the National Crime Records Bureau, the occupancy rate across prisons in the state stands at 155 percent, which is higher than the national average of 118.5 percent. The state’s prison system ranks as the sixth-most overcrowded in India.

Despite the release of almost seven thousand inmates by the state following the Supreme Court’s order, the over-occupancy dropped by a meagre twenty percent at the time. Even after the prisoners were released, the police continued to over-arrest, bringing the prison population numbers back up.

The primary reason for the administration’s inability to bring down the prison population are the highly restrictive parameters for release in terms of both age and comorbidities for convicts, as well as the nature of offences for undertrials. Many questions of bail have been left to magistrates’ discretion. A restrictive parameter used by many high-powered committees is to release on parole or interim bail only those inmates whose offences are punishable with five years or less. In Madhya Pradesh, for health conditions, only those who have undergone bypass or valve-replacement surgeries, or are suffering from cancer, are eligible to be released. In 2019, the NCRB reported 1,544 natural deaths in prisons. Of these, 406 were caused by heart-related ailments, 190 by lung-related problems, 81 by tuberculosis, 78 by cancer, 61 of liver-related ailments, 56 by brain haemorrhage, 51 by kidney-related ailments and 43 by HIV. None of these common comorbidities have been considered by the high-powered committees as a parameter for release of undertrials and convicts.

The high-powered committee in Madhya Pradesh has adopted a particularly conservative view. Despite its high occupancy rate, it has only released 14.7 percent of its prisoners. In contrast, with an occupancy rate of 95.7 percent, Punjab has released 31.9 percent of its prisoners. Tamil Nadu, which has an occupancy rate of 60 percent, has released 33.4 percent of its prisoners.

Some people have been deprived of relief despite meeting all criteria. Among those who were denied interim bail in Madhya Pradesh is Rakesh Pardhi, a 20-year-old who was arrested by the police in May for illegal possession of raw country liquor under Section 34 (2) of the Madhya Pradesh Excise Act, 1915. This offence is punishable by a maximum of three years of imprisonment for a first-time offender. Pardhi had no prior criminal record, and has been suffering from tuberculosis since before the time of the alleged offence. He was arrested and sent to judicial custody and has been incarcerated for nearly three months. Despite meeting the parameters and suffering from tuberculosis, he was not considered for interim bail. His regular bail application was rejected by both the magistrate and the sessions court for one of the lowest-level offences.

The state of the prisons is linked to the larger problem with how undertrials are treated in India. Undertrials comprise 69.4 percent of India’s prison population. This number is egregious given the very idea of pretrial detentions has been widely questioned. Pretrial detention requires some extent of presumption of guilt, and comes with a heavy cost in cases of wrongful arrest. Observers, including those writing in The Caravan, have correctly argued that the court and the government have not done enough to protect the most vulnerable—persons over 60 years of age, and those with comorbidities. While these people should be protected, we must not ignore the structural problem concerning undertrials.

A reduction of the undertrial population by half would significantly decongest prisons. The sentencing function of the courts has been staggered, which is contributing to overcrowding. Bareli sub-jail, where 64 inmates tested positive for COVID-19 in July, had a total of 78 inmates in April, of whom 73 were undertrials.

It is clear that the prison system was unprepared for a crisis such as this, and we need more than just ad hoc steps to address these challenges. The policing culture and laws that criminalise communities contribute to excessive arrests. According to the 2016 NCRB data, India arrests 14.6 people for eventually incarcerating one, as compared to 4.7 in the United States.

The case of Rakesh Pardhi is not an exception. The Madhya Pradesh police arrests disproportionately under excise laws, and even before the pandemic, trial courts almost always deny bail in these cases.

The number of undertrials in the state’s prisons increased from 23,448 on 29 February this year to 28,608 by the end of August. Between 31 March and 30 April, Madhya Pradesh prisons released around 2,500 inmates, but since then they have added 6,497 new undertrial inmates to its prison population between April and July.

By August end, according to official numbers, the overall prison population was almost back to the pre-pandemic February figures, despite attempts at decongestion and a consistent decline in the population of convicts in prison. In the case of district- and sub-jails of Madhya Pradesh, the prison population has exceeded the numbers of February.

The data on district- and sub-jails from June is shocking. The Maihar sub-jail had an occupancy rate of 647 percent, while the Anuppur District Jail was at 356 percent and the Baidhan District Jail at 355 percent. At the same time, 99 out of 131 prisons in the state had over-occupancy, and 26 of these had occupancy rates higher than 200 percent.

Many of these arrests and judicial custody have been ordered in cases under Section 188 of the Indian Penal Code, which deals with disobedience of orders promulgated by public servants, including violating lockdown rules. This is compounded by the fact that Section 188 is a non-bailable offence in Madhya Pradesh, following a state amendment to the IPC in 1976.

There were also multiple arrests in the garb of action against members of the Sunni Islamic organisation Tablighi Jamaat who had attended an event on 23 March at the organisation’s headquarters in Delhi, known as Nizamuddin Markaz. The Bhopal district court ordered arrests of 69 attendees, a majority of whom were foreign citizens and many were COVID-19 positive. In Ujjain, a first-information report was registered against a person for putting up a display picture on WhatsApp that said “Hum Markaz Nizamuddin ke saath hain”—we are with Markaz Nizamuddin.

Dozens of cases across the state were registered against people who had already tested positive, who were being punished for falling ill. Notably, three accused persons were detained under the National Security Act, 1980 in Indore for allegedly attacking doctors. Two were found to be COVID-19 positive when they were sent to the Satna Central Jail from Indore, and one was found to be COVID-19 positive when he was brought to the Jabalpur Central Jail. Over the years, the NSA has been also invoked in the state for offences such as transportation of cows and possession of beef.

The record of arrests between 22 March and 3 May made available by the Madhya Pradesh police contains over twenty-one thousand arrests. While this is an incomplete data set, it tells us that around a fifth of the contained cases are lockdown-violations related, a sixth of them were under excise laws and an eighth of them under gambling laws. The proportion of lockdown-related offences goes higher in busier urban centres, in some places accounting for over eighty percent of all cases. As we argued in a piece in The Wire, criminal law is an inappropriate response to a pandemic.

In 2009, there was an attempt to plug the number of arrests by way of an amendment to the Criminal Procedure Code, under which mere notices were supposed to replace arrests in minor cases. While the provision is used commonly by the police, it has not made a dent in the prison population of undertrials.

According to the latest NCRB data, Madhya Pradesh boasts of one of the highest annual rates of offences under excise and public-gambling laws. The rate of offences under excise laws stands at 110.2 per 100,000 population in the state, as opposed to 20.2 nationally; for public gambling laws, it stands at 34.4 per 100,000, as opposed to 11.9 nationally. Just as in the case of lockdown-related offences, these offences are somewhat manufactured. There is no victim, no harm, and it is mostly the poor, especially those from marginalised communities, who are targeted.

Trial courts also treat minor offences under excise laws with undue harshness. While high courts often grant bail, approaching them makes the process costlier for the accused. In Arnesh Kumar vs State of Bihar, the Supreme Court held that the magistrate shall not authorise detention casually and mechanically and, in particular, in relation to offences punishable by an imprisonment of seven years or less. However, compliance with this order has not sufficiently percolated down to the lower judiciary. Judges have also treated some lockdown-related cases with undue harshness. In one case, a vegetable vendor in Indore was sent to judicial custody, even though the judge recognised that vegetables were essential goods.

To tackle the COVID-19 situation in prisons, four important measures are needed: reducing the quantum of arrests; increasing access to early bail; improving health infrastructure; and decriminalisation of poverty and marginalisation.

A disproportionate growth in the number of women prisoners is also worrying. As per the NCRB’s prison statistics, until 31 December 2018, the prison population in India was 466,084. From 2000 to 2018, the rate of increase in India’s women inmate population, at 117.7 percent, is more than double the global rate, which stood at 53 percent.

The abysmal healthcare facilities in prisons makes the arrest itself a form of punishment. In 2018, healthcare expenditure on prison inmates in India was merely 4.3 percent of its total expenditure on prison inmates. According to a study conducted by the Commonwealth Human Rights Initiative, with five prison deaths per day, India’s prison mortality rate of 3.96 per 1,000 inmates is higher than that of the United States, Australia, and England and Wales.

Finally, it is important to ask why certain offences exist at all in the criminal law books. Crimes of possession such as those under excise, gambling, anti-beggary and cattle-slaughter prohibition laws serve to criminalise the poor, in particular those from certain social groups—the denotified tribal and nomadic communities, Dalits, Adivasis and Muslims. Unsurprisingly, prison records show that two-thirds of inmates are from Scheduled Castes, Scheduled Tribes and Other Backward Classes.

In the context of the criminal-justice system in the United States, the racialised targeting of African-American communities has been cited in arguments for abolishing the police. In India, the criminal-justice system is designed to carry out casteist social control. Any conversation on policing must be cognisant of this structural reality. Focussing on the problem of prison-overcrowding without locating it within this context would be missing the woods for the trees.

courtesy The Caravan