FORGOTTEN BEHIND THE BARS: AN OVERVIEW AMID THE PANDEMIC CRISIS

Reading time : 12 minutes

ABSTRACT

The article deals with the legislative basis for health treatment in prisons and detention homes in India during the COVID-19 crisis. In normal times, prisoners are one of society’s most vulnerable populations. It is much more difficult to protect their rights and health during pandemics like COVID-19. Detention facilities are not adapted to face large-scale epidemics, in reality, are a particularly vulnerable group to the spread of an infectious disease; both because their average health level is lower than that of the general community because they are compelled to live in tight, congested, inadequately ventilated conditions where standard hygiene regulations are not usually followed. For these reasons, it may be much more difficult to concretely defend this population’s right to health during the present pandemic catastrophe. According to the National Crime Record Bureau and the Prison Statistics India, 2020, overcrowding and occupancy in jails provide a significant risk of infection and transmission. Though health and human rights envision the greatest possible quality of health among inmates and detainees, a ripple impact on community infection via inmates in detention facilities and jails cannot be ruled out.

INTRODUCTION

The Wire has consistently reported on the perilous situation of inmates in India over the last year, and how this has been worsened by the epidemic. Several jurisdictions have reported COVID-19 epidemics in jails, with few control mechanisms in place. Several more convicts died as a result of the illness. Human rights organizations have petitioned both high courts and the Supreme Court on occasion, but this has not resulted in significant changes on the ground.

According to Amnesty International, prisoners worldwide, including in India, have been neglected during the Covid-19 outbreak because jails confront structural hurdles in controlling viral spread. The organization said in a study that pandemic control efforts in jails resulted in severe human rights violations. Following the abrupt shutdown, violence erupted in jails across India, notably in West Bengal. During the fighting, four people were killed and numerous more were seriously injured. Similarly, many convicts in other jails have gone on strike, seeking better facilities.

The actual scope of COVID-19 infections and deaths in jails is difficult to evaluate since governments have failed to publish up-to-date, trustworthy information publicly. However, current data shows concerning trends of COVID-19 infections in jails worldwide.

Do Indian inmates have the right to healthcare? The COVID-19 crisis created significant problems for human rights, health care, and jail system, whereas (1) To control the COVID-19 infection, the rights of inmates and detainees require a precise balancing between the right to a fast trial (69% of the total number of prison inmates in India are under trials) and a secure prison environment and decongestions. (2) The global COVID-19 epidemic has serious consequences for India’s overcrowded jails. The death rate enhances the possible danger of community transmission of incarceration and reintegration into society following release. (3) It was projected that a total of 2,191 such convicts tested positive for COVID-19 in Indian jails with high occupancy rates. (4) Multiple petitions have been filed in the High Courts and the Supreme Court demanding the release of inmates and the administration of health treatment in jails. The appeal is based on the reality that our jails are 17.6 percent overcrowded. According to the National Crime Record Bureau (NCRB), the number of prisons grew from 1,339 in 2018 to 1,350 in 2019, although the occupancy rate did not decrease. (5) The greatest achievable quality of health is also demanded under human rights legislation, which is based on crime prevention and criminal justice.

In Charles Sob raj v. The Suptd [1]the court held that Central Jail Tihar that imprisonment does not mean the end of basic rights. As a result, all fundamental rights given to regular people are equally available to convicts, albeit with certain limitations in their exercise due to the latter’s imprisonment. The Court expressly said that failing to provide appropriate health care facilities to inmates would result in a breach of their basic rights, drawing the courts’ remedies. Furthermore, in Parmanand Katara v. Union of India and others, [2]the Supreme Court said unequivocally that there can never be a second view when it comes to the protection of human life. And it makes no difference whether the patient is a criminal or an innocent person.

In an ideal world, prisoners in India would maintain all rights save those lost as a result of imprisonment, such as the freedom to movement and trade.

PRISONERS RIGHTS DURIND COVID-19: INDIAN SCENARIO

In the landmark case of Parmanand Katara Vs Union of India [3](1989 AIR 2039), The Supreme Court ruled that the state has a duty to protect an individual’s life regardless of whether the individual is innocent or guilty of a crime, establishing a strong precedent for prisoners’ rights in India, particularly the fundamental right to health guaranteed by Article 21 [4]of the Indian Constitution.

RECENT JUDGEMNET: Maaysha Singh v. State of Maharashtra & Anr: The Bombay High Court ruled on that inmates had a right to medical records, including information on tests and medications provided to them, under Article 21 of the Constitution.

The Prisoners Act of 1894 in India ,Section 3(1) [5]defines ‘prisons’ as any jail or location used to hold inmates permanently or temporarily under general or particular directives issued by a state authority. The term ‘criminal prisoner,’ ‘convicted criminal prisoner,’ and ‘civil prisoner’ are all used throughout the statute.

Apart from the Indian Constitution, Section 4 [6]of the Prisons Act, 1894, provides for the provision of sanitary accommodation facilities to prisoners. At the same time, Section 7[7] of the same legislation contemplates the provision of shelter and safe custody facilities to such prisoners who may be found to be in excess of the prison capacity of a prison. Under the Prisons Act, a prisoner necessarily has to be checked by a medical practitioner at the time of admission into the prison.

Sections 37-39 [8]of the Prisoners Act of 1894 address prisoner health and care in prisons and hospitals.

The duties of medical officers in jail are defined in Section 13 of the Prisoners Act of 1894. The medical officials are required under this provision to maintain cleanliness and hygiene. This was also noted by the All India Committee on Jail Reforms from 1980 to 1983. Despite this, Indian jails remain unsanitary and medically dangerous. But India also has a scarcity of medical staff in jails, among other problems. There were just two medical officers for roughly 4,400 detainees in Karnataka’s largest prison, the Parappana Agrahara Prison, and no women medical staff for 126 female convicts.

  1. MEAURES TAKEN BY THE CUNTRY’S GOVERNMENT TO PROTECT THE RIGHTS AND INTEREST OF PRISONERS

The Supreme Court of India took suo motu note of the overcrowding in Indian jails during the country’s COVID-19 epidemic. It instructed state governments and union territories to explore giving four- to six-week paroles to convicts charged with minor offences in order to decongest jails[9]. While isolation wards have sprouted up in jails around the nation, important efforts toward prison decongestion in the form of giving emergency paroles and temporary bails to under trials have begun in several Indian states, including Uttar Pradesh, Madhya Pradesh, Maharashtra, and others. In addition, several state governments have prohibited jail visits from families, friends, and others for an indefinite period of time.

  • OBLIGATIONS OF THE STATE TO PRISONERS RIGHTS

The right to health is not expressly stated to be a basic right in the Indian Constitution. However, according to the Supreme Court of India’s decision in Paschim Bangal Khet Mazdoor Samity & Others v. State of West Bengal & Others[10], the right to healthcare services is an important component of the right to life under Article 21 of the Indian Constitution.

  • PRIORITIZING VACCINATIONS FOR DETAINEES

At least 71 nations now have a vaccination policy in place for at least one clinically susceptible population. While some of these nations have identified prison populations and staff as priority groups for vaccines, Amnesty International’s study revealed that many others, particularly higher-income countries, have remained silent or are vague about their plans.

“Prisoners are arguably of the most vulnerable places for COVID-19 epidemics, and we cannot continue to ignore individuals in prisons’ right to health. The lack of clarity about vaccination programs, policies, and the care of jailed people is a major global concern,” said Netsanet Belay. “As vaccine rollout strategies take shape, failing to prioritize the health of those in custody could have disastrous repercussions for inmates, their families, and the public health care system.”

Amnesty International is urging governments not to discriminate against detainees when formulating vaccination policies and programs. Furthermore, it urges states to make every effort to prioritize prisoners in their national vaccination plans, especially given that their confined conditions do not allow them to physically distance themselves, and to ensure that those at particularly high risk of COVID-19 are adequately vaccinated (such as elderly inmates and those with chronic health issues) are given the same priority for immunization as other categories in the general community.

VIOLATION OF RIGHTS DURING PANDEMIC: Among other nations, the study focuses on the systemic flaws that have resulted in significant abuses of inmates’ rights in India during the last year. According to the results, the government failed the imprisoned people on numerous levels, including the state’s obligation to provide appropriate technical support to maintain connection with the outside world and to avoid conditions that may lead to jail discontent.

On March 24, last year just after Prime Minister Narendra Modi unexpectedly declared a total countrywide lockdown, jail authorities across the country responded by prohibiting any personal physical meetings within prisons. Without making alternate arrangements, lawyers and family members were denied jail mulaqats (visits).

According to the report, despite the Supreme Court’s mandate to use video conferencing technology to compensate for a lack of physical meetings, several states have failed to make the required arrangements. “Just as there were issues with the implementation of video conferencing in courts, the roll-out of video conferencing in prisons to allow inmates to speak with family members was very slow,” the report says.

The research focuses on the situation of inmates in Karnataka and Haryana, where video conferencing just became available in December 2020 and February 2021, respectively.

Even when some nations established technological measures, these were insufficient. According to the survey, the duration of video calls was extremely short. In Karnataka, for example, it was said to take between five and ten minutes. The research also highlights the troubling situation of inmates in Jammu and Kashmir who are only permitted to call their families once every 15 days.

INVESTIGATIO OF FATILITIES IN JAIL AS A LEGAL REQUIREMENT

If a person in prison has tested positive (or is awaiting test results) and is moved to a hospital (or other medical institution), the receiving facility should be informed of the person’s COVID-19 status (confirmed or suspected) so that adequate isolation may be provided.

Prisoners have tragically perished as a result of COVID-19. Authorities have the duty to investigate deaths in custody to establish the factual circumstances surrounding the death and identify lessons to be learned in order to prevent similar lethal incidents, based on states’ responsibility to protect prisoners’ lives and protect them from torture and ill-treatment[11].

Deaths in custody (or shortly after release from jail) must be notified to an authority independent of the prison system and required to undertake impartial inquiries into the circumstances and reasons of the death, according to well-established human rights legislation[12]. The inquiry must determine, among other things, the cause of death, the circumstances surrounding the death (including any contributing factors), and whether the death might have been avoided[13].

The causes and potential circumstances that contributed to a death in prison must be thoroughly investigated by prison administration in order to determine if the death might have been avoided and whether additional procedures or protocols should be implemented. As a result, each death in prison should be investigated to see what general lessons may be drawn for the jail where the death happened[14].

RIGHTS OF PRISONERS UNDER INTERNATIONAL LAW

In jails, the spread of any infectious disease poses a greater risk. Inmates find it difficult to physically remove themselves because to their fragility and geographical constraints. Furthermore, the inadequate ventilation and condition of jails exacerbates the problem.

The United Nations has recognized access to healthcare for inmates as a fundamental right. The Standard Minimum Rules for the Treatment of Prisoners were unanimously approved by the United Nations General Assembly in 2015. It was then dubbed the ‘Nelson Mandela’ rules to honor the late South African President, who served 27 years in jail for resisting apartheid.

The Mandela Rules describe the Minimum Standards that should be applied in prisons to protect prisoners’ dignity. The primary goal of these guidelines is to create compassionate jail conditions.

Under the ‘Rules of General Application,’ the first most essential premise of the Nelson Mandela Rules highlights that prisoners must not be humiliated or treated inhumanely.

The United Nations Office on Drugs and Crimes (UNODC), World Health Organization (WHO), Joint United Nations Program on HIV/AIDS (UNAIDS), and the United Nations Office of the High Commissioner for Human Rights (OHCHR) issued a joint statement on COVID-19 in prisons and other closed settings on May 13, 2020[15].

The united declaration garnered immediate attention from international leaders because it emphasized the vulnerability of inmates as a result of the COVID-19 epidemic.

The United Nations Human Rights Council strongly condemned states for failing to take proactive measures to combat the spread of COVID-19 in prisons. The UN also stated that the incident violated Articles 6 (right to life) and 9 (right to liberty) of the International Covenant on Civil and Political Rights (ICCPR) of 1996.

As a signatory to the ICCPR, India’s government must take sufficient measures to prevent the spread of covid 19 in jails. Failure to do so will result in a breach of the above specified ICCPR duty.

In March, the 14th UN Congress on crime prevention and control discussed the impact of the corona virus in prisons. The UNODC acknowledged: “Sufficient space, diet and drinking water, access to hygiene products and acceptable sanitary facilities, as well as sufficient ventilation in lodging and working spaces, are not givens in many jails worldwide[16].”

The international regime has had a significant influence in directing nations to implement infection-prevention measures. Nonetheless, the system contains flaws. Despite present safeguards, the jail system needs a significant reform or convicts may face serious damage.

PRISONERS RIGHTS IN EPIDEMICS UNDR INTERNATIONAL LAW AND INDIA’S RELATED OBLIGATION

In its Concluding Observations on Moldova, the United Nations Human Rights Committee stated unequivocally that a state’s failure to take positive steps to prevent the spread of contagious diseases in prison would constitute a violation of Articles 6 (right to life) and 9 (right to liberty) of the International Covenant on Civil and Political Rights, 1996. (ICCPR). India is one of the countries that have ratified the ICCPR. Thus, the Indian Government has duties to take efforts to prevent the spread of COVID-19 in jails, and any failure to do so will result in a breach of the ICCPR’s aforementioned requirements.

RECENT REPORT: Protests and disturbances have erupted in prisons as a result of COVID-19, and the research indicates that they have frequently been blamed on the implementation of restrictive measures such as the suspension of prison visits or poor health and living conditions. The analysis is based on a report from the UN Office on Drugs and Crime (UNODC) on violence directly related to the epidemic. Protests and disturbances have been recorded in over 40 countries, according to the UNODC. Among other nations, violent prison demonstrations have erupted in Brazil, France, India, Italy, Jordan, Lebanon, Nigeria, Romania, Sri Lanka, Thailand, the United Kingdom, and Venezuela, resulting in the death or injury of inmates and prison personnel or prisoner escapes.

PRISONERS TRIAL

Considering the COVID-19 pandemic scenario and its ripple impact on infection propagation, the Supreme Court of India shifted to video-conferencing sessions to limit human contact and viral dissemination[17]. All states and union territories have enjoined the release of convicts who have been imprisoned as a result of trials for offences carrying a maximum sentence of seven years, as well as those who have been imprisoned for up to seven years on parole. Furthermore, the restriction has been imposed on the movement of convicts in all instances save those of decongestion. In light of the Supreme Court ruling, Maharashtra freed 601 prisoners from 37 jails.

The Supreme Court directed the formation of High-Powered Committees to investigate prison overcrowding issues and ordered the release of convicts on parole or temporary bail[18]. In Re: Contagion of COVID-19 Virus in Prisons, the Court took suo motu cognizance for the release of foreigners in Assam’s detention centre on the provision of a Rs. 5,000 bail after they had served one or two years in prison. The Supreme Court’s involvement resulted in the release of 802 “declared foreigners” from Assam’s six prison centers[19].

WORLD HEALTH ORGANIZATION GUILDLINES ON PRISONS

The WHO Interim Guidance for Preparedness, Prevention, and Control of COVID-19 in Jails and Other Places of Detention, 2020, outlines the strategy mechanism in prisons and detention facilities as controlling the transmission of illness in prisons is important for reducing COVID-19 outbreaks in the general community.

The guideline safeguards the health of criminals and convicts living in confined spaces, recognizing that they are more sensitive to the COVID-19 disease than the general population. Staff and health care providers working in prisons can prevent and respond to COVID-19 outbreaks and illness outbreaks. The Guidelines aim to prevent significant health risks and the spread of COVID-19[20]. This advice offers the most recent data on the indications and symptoms of COVID-19, as well as preventative and management methods in the setting of a jail[21]. In the face of the COVID-19 epidemic, there is an urgent need to implement the goals of the WHO Guideline into Indian prisons and detention facilities.

ANALYSIS AND SUGGESTION

As its right to health is a basic right under Article 21 and is equally available to convicts, it is critical for the state to safeguard the former. If the state fails to undertake measures to prevent the spread of corona virus in prisons, and therefore to protect inmates’ health, it not only fails to defend a basic right guaranteed under Article 21 of the Constitution, but it also fails to honour its duties under Articles 6 and 9 of the ICCPR.

The quality of medical care offered in Indian jails has frequently been questioned. Inmates in jail are completely dependent on the state for health-care services. Basic healthcare in Indian jails is frequently seen as inadequate and inexpensive, and it is urged that it be upgraded to the level of necessary primary health care services offered to inhabitants of the nation who are not convicts.

The COVID-19 epidemic is only one of many fatal pandemics that have occurred, but it is unlikely to be the last. To protect its jail population against another catastrophe in the future, the country’s prison system requires a comprehensive reform from the ground up.

CONCLUSION

The human rights reaction to the COVID-19 epidemic maintained public health measures without prejudice. Inmates in jails, detention centers, and protected homes are thought to be more prone to COVID-19 infection. The denial of health treatment and the failure to release prisoners on schedule were deemed human rights breaches under United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), 2015. During the COVID-19 outbreak, the World Health Organization emphasized that the Nelson Mandela Rules and Principles were enforced in jails. During the COVID-19 pandemic and quarantine enforcement, the criminal justice system’s prisons and detention authorities need to ensure that prisoners and detainees have access to healthcare. As a result, jails cannot serve as a breeding ground for the corona virus or the spread of a pandemic among India’s imprisoned population.


[1] https://indiankanoon.org/doc/1518037/

[2] https://indiankanoon.org/doc/498126/

[3] https://uniteforreprorights.org/resources/pt-parmanand-katara-v-union-india/

[4] http://www.bareactslive.com/ACA/ACT401.HTM

[5] https://legislative.gov.in/sites/default/files/A1894-9.pdf

[6] https://legislative.gov.in/sites/default/files/A1894-9.pdf

[7] https://legislative.gov.in/sites/default/files/A1894-9.pdf

[8] https://legislative.gov.in/sites/default/files/A1894-9.pdf

[9] In Re: Contagion of COVID-19 Virus In Prisons, 2020 SCC OnLine SC 320 (The Supreme Court of India).

[10] httpSs://www.escr-net.org/caselaw/2006/paschim-banga-khet-mazdoor-samity-ors-v-state-west-bengal-anor-cited-1996-air-sc-2426

[11] The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Killing has underscored that “Death resulting, in whole or in part, from the denial of such essentials to life as potable water, safe and sufficient food, sanitation, adequate space, proper ventilation, or adequate medical care is thus an arbitrary death for which the State is responsible.” United Nations Human Rights Special Procedures, Mandate of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings, COVID-19 and Protection of right to life in places of detention

[12] The Nelson Mandela Rules, Rule 71. Prizreni v. Albania, ECtHR, Judgment of 11 June 2019, para. 40. Report to the Romanian Government on the visit to Romania carried out by the CPT from 7 to 19 February 2018, CPT/Inf (2019) 7, para. 77. African Commission on Human and Peoples’ Rights, The Luanda Guidelines, Rule. 21. Ximenes-Lopes v. Brazil, IACtHR, Judgment of 4 July 2006, para 148. IACHR, Revision of the United Nations Standard Minimum Rules for the Treatment of Prisoners, para. 325-327. The ECtHR refers to deaths that happened “in suspicious circumstances,” while the Nelson Mandela Rules, the CPT’s standards, the IACHR, and the Luanda Guidelines require an investigation for all cases of death in custody. The IACtHR refers to any violation of the right to life and personal integrity.

[13] Report to the Romanian Government on the visit to Romania carried out by the CPT from 7 to 19 February 2018, para. 77.

[14] https://rm.coe.int/16809a5597

[15]https://www.who.int/news/item/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings

[16] https://news.un.org/en/story/2021/03/1086802

[17] Nomani MZM, Tahreem M, Constitutionality and legality of coronavirus (COVID-19) in India: Limits of sanction and extent of liberation. International Journal on Emerging Technologies 2020;11(3):14-18.

[18] .In Re: Contagion Of Covid 19 Virus In Prisons Suo Motu Writ Petition (C) No. 1/2020; 23-03-2020.

[19] In Re: Contagion of COVID-19 Virus in Prisons, Suo Motu Writ Petition (C) No.1/2020; order dated April 13, 2020

[20] World Health Organization. Preparedness, prevention and control of COVID-19 in prisons and other places of detention, Interim guidance. Geneva: WHO; 2020.

[21] Nomani MZM, Parveen R. Legal dimensions of public health and COVID-19 pandemic in India. Sysematic Review in Pharmacy 2020; 11(7):131-134; https://doi.org/ 10.31838/srp.2020.7.21

Author: SYEDA SAMEEENA S.A, PES UNIVERSITY, BANGALORE

Editor: Kanishka VaishSenior Editor, LexLife India.

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