An Unseen Side of COVID-19 Pandemic

With the ease of lockdown and travel restrictions in India amid the evolution of newer strains of the virus, the pandemic is inflicting a heavy toll and is sweeping at a faster pace than ever. The Delta-plus variant has been detected as a potential concern that would embark upon the third wave of the virus.  Tedros Adhanom Ghebreyesus, WHO Director-General stated that “The pandemic is not over, and it will not be over until and unless the transmission is controlled in every last country.” In a tweet on July 9^th, he said, “I’m worried about the emergence of a potent Covid-19 virus variant, like Delta. Unless we increase vaccine access to those who need them first & need them now, we’re collectively at high risk of losing the gains we’ve made. Speed is very important. Thus, strict adherence to the Covid appropriate behavior and an all-inclusive vaccination policy with the principle of “leaving no one behind” is the panaceas to mitigate the impact of third-wave in India.

With the horror of the third wave of Covid looming large globally, the plight and suffering of incarcerated persons had been highly ignored. The prison inmates have had to endure severe and worst forms of human rights violations during the Covid-19 pandemic. Amnesty International in its recent report “Forgotten Behind Bars: COVID-19 and Prisons” conducted a review of 69 governments’ responses to the surging infection rate in the detention facilities. It has been found that the prevention measures against the spread of the virus have been grossly inadequate across the countries and, in some cases, they themselves led to violation of human rights. Moreover, the overcrowding of prisons and lack of access to hygiene facilities has exacerbated the devastating impact of the pandemic on the prison inmates.

The first-ever prison reforms had been suggested by the Indian Jail Reform Committee (1919-1920) which reviewed the conditions of prisons globally and suggested that more emphasis should be placed on reformative approach rather than on the deterrent approach in prisons. It further suggested that the maximum intake of prisoners in a prison should be set based on its size and shape. Besides this, the evolution of human rights philosophy over time had led to the development of several international treaties and covenants which recognise the basic human rights of prisoners worldwide and provide protection in case of their violation.

Article 7 of the Universal Declaration on Human Rights states: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

Article 25.1 of the Universal Declaration on Human Rights states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Article 12.1 of the International Covenant on Economic, Social, and Cultural Rights recognizes: States parties recognize “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

The revised UN Standard Minimum Rules for the Treatment of Prisoners (known as the Nelson Mandela Rules) states: “The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.” This principle has been reiterated by OHCHR and WHO when the COVID-19 pandemic embarked upon the world.

The UN approach of “Leaving no one behind” is the central and transformative principle to support the implementation of the SDG 2030 Agenda. This includes a framework to reduce inequalities and vulnerabilities which are the major causes of people being left behind such as discrimination based on gender, caste, creed, religion, beliefs, etc.

India has been a signatory to the Universal Declaration of Human Rights, 1948 along with 191 other member states of the United Nations. On 1^st January 1942, forty-seven countries (including India) signed the Declaration by the United Nations. In addition to this, India is also been a signatory to the International Covenant on Economic, Social and Cultural Rights. This shows that India has erga omnes responsibility to protect people and follow basic humanitarian rules to end the spread of the virus. The Apex Court of India has several times shown concerns over the deteriorating conditions of prisoners and the problem of overcrowding and lack of access to basic facilities in prisons. Even after so much international development overtime related to human rights, India still does not have comprehensive legislation to deal with the management of prisons and protection of basic human rights of its prisoners.

Being a prisoner does not make a person in-human. Prisoners are conferred unalienable rights upon them by international treaties and covenants. An incarcerated person cannot be denied to access his rights merely because he is convicted of a crime. He does have a restriction on right to freely move across the territory of India and the right to practise the profession of his choice but he does have certain fundamental rights such as the right to equality (Article 14), right to freedom of speech and expression (Article 19) and right to life (Article 21) of which he cannot be deprived except by the due procedure established by law. Moreover, the Apex Court of India delivered certain landmark judgements which recognises the basic human rights of prisoners.

In the famous cases like DBM Patnaik v. State of Andhra Pradesh and, Sunil Batra v. Delhi Administration, the Apex court ruled that it must be realised that a prisoner is a human being as well as a natural person or a legal person. If a person gets convicted for a crime, it does not reduce him to the status of a non-person whose rights could be snatched away at the whims of the prison administration. Therefore, imposing any major punishment within the system of prison is conditional upon the absence of procedural safeguards.

In State of Maharashtra v. Prabhakar Pandurang Sanzgir, the Apex court stated that the mere fact that someone is detained cannot deprive one of his fundamental rights and that such conditions are not to be extended to the extent of the deprivation of fundamental rights of the detained individual. The Court further ruled that every prisoner retains all such rights that are enjoyed by free citizens except the one that is lost necessarily as an incident of confinement.

In  Kharak Singh v. State of UP, the Apex court stated that the term “life” connotes more than mere existence like that of an animal. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the other world. It can be said that the right to live is not restricted to a mere animal existence. It connotes something more than just the physical survival of a being.

In the famous case of Maneka Gandhi v. Union of India, the Supreme Court laid down a new dimension of Article 21 wherein it stated that the “right to life or live” does not confine itself to mere physical existence but also includes the right to live with human dignity.  

The right to health is a basic human right and a fundamental right guaranteed under Article 21 of the Constitution of India. In Parmanand Katara vs Union of India (1989)and others, the Apex court ruled that the state has an obligation to preserve life whether he is an innocent person or a criminal liable to punishment under the law. With specific reference to health, the right to conditions, adequate for the health and well-being of all was already recognized in the Universal Declaration of Human Rights.

The Way Ahead for India

• Re-consideration of the law of grant of bail

The Law Commission of India in its 78^th report said that the problem of overcrowding in prisons can be solved by finding more effective ways of dealing with convicted offenders. It further quoted that the detention in prison in case of undertrial prisoners is generally the result of an arrest for an alleged offence not followed by the grant of bail. It, therefore, is recommended to reconsider the law relating to the grant of bail. Under the present law, the question of whether a person convicted of an offence would secure bail depends upon the offence with which he is charged (bailable or non-bailable), the discretion exercised by the officer or court (in respect of non-bailable offences), his capacity to furnish the security or personal recognisance required by the officer of the court. It becomes therefore necessary to spread the canvas wide and to go into the law relating to bail in some detail.

Recently, the Supreme court took a Suo-moto case, In re: delay in the release of convicts after the grant of bail, on the basis of a newspaper report. The newspaper reported that the convicts lodged in Agra central jail have not been released on interim bail even after 3 days of the order passed by the Supreme court. To ensure that such a situation does not arise in the future, the court is contemplating adopting a procedure termed as FASTER (Fast and secured transmission of electronic records) system, for transmission of e-authenticated copies of the judgment/final orders/ interim orders to the concerned Courts / Tribunals and other duty holders for execution. It further issued a notice to the Union of India, State Governments/ Union territories to furnish a report regarding the details of whether efficient internet facilitates are available in their respective prisons.

This landmark development of the Supreme Court would provide an interim solution in the direction to overhaul the conditions of prisons and prisoners and further, it would also minimize the violation of basic human rights of prisoners to some extent. But several issues require urgent attention of the Apex court to provide a comprehensive and ever-lasting solution in this direction.

• Establishing comprehensive legislation to deal with the management of prisons and prisoners

India is at the eleventh hour to establish comprehensive legislation to deal with the prisoners. As a signatory to various international human rights treaties, it is incumbent upon India to make comprehensive legislation to deal with the issues of management of prisons such as overcrowding, hygiene facilities, access to healthcare, and access to a proper nutritious diet. The legislation must also deal with human rights violations faced by prisoners in jail, atrocities inflicted by police personnel, custodial deaths, consideration of bail of prisoners convicted of non-bailable offences, etc.

• More emphasis should be placed on the reformative approach rather than on the deterrent approach

A reformative approach to punishment should be the objective of criminal jurisprudence in order to promote rehabilitation without offending community conscience and for securing social justice. For the reformation of prisoners from criminals to being responsible and potential citizens of this country, it is essential to reform the environment of prisons and to value their basic human rights.

• Overhauling of existing laws in operation relating to prisoners

The Prisons Act, 1894 is one of the oldest laws dealing with laws in relation to prisons in India. Time and (time) again it showed its incompetence and obsoleteness to deal with the effective management of prisoners. It is thus urgently needed to ameliorate this law in tune with the modern-day issues in prisons.

Interim Measures to Be Adopted During Pandemic

• Implementation of Covid-19 protocols in prisons

It must be ensured that proper protocols should be followed in prisons to prevent the spread of the virus among prisoners.

• The custodial staff must work together with the health personnel in prisons to enable timely identification of suspected cases of infection among detainees.
• General Covid precautionary items must be made available to detainees such as the availability of handwash and Alcohol-based sanitizer containing at least 70 percent of alcohol, disposable tissues, N95 masks, etc.
• Proper facilities should be made available for the isolation of infected detainees in single accommodation.
• Thermal screening should be done at the point of the arrest of the convict and also at the entrance of prisons.
• Information and data must be collected from prisoners on any history of fever, cough, illness, shortness of breath, recent travel history to affected areas, and possible contact with confirmed cases in the last 14 days.
• A detailed register should be maintained of persons going in and out of prisons on a daily basis.

Moreover, in order to strengthen efforts at the field level to tackle the situations arising out of Covid-19, it is considered necessary to follow the Standard Operating Protocols (SOP), prepared in coordination with BPR&D and Ministry of Health and Family Welfare, for the safe custody, medical care, transport, while avoiding transmission of Covid-19 and also ensuring the safety of prison.

Also, the police personnel, due to their regular physical contact with the detainees, must follow general precautionary measures to prevent the spread of infection to the jail staff.

• Expediating vaccination of detainees

Vaccines must be made available to prisoners on a priority basis. The prevailing problem of overcrowding in Indian prisons poses an incommensurate threat to prisoners and prison staff. As many as 18,157 prisoners and staff contracted the virus and 17 succumbed. It is therefore needed that prisoners should be tested, isolated, treated, and vaccinated on an urgent basis.

Further, the need for documentation for getting vaccinated must be quashed particularly for prisoners. The prisoners may not have certain important documents due to their incarceration status and they may not be able to produce them. The provision for mandatory documentation for vaccination is discriminatory, arbitrary, and violative of fundamental rights of Right to Health and Right to Life guaranteed under Article 21 of the Constitution of India. Covid-19 Vaccine should be made available to prisoners irrespective of whether they have necessary documents or not.

If India has to eliminate the virus in the best possible manner it must ensure that incarcerated must not be left out to access the vaccine jab. Moreover, it is the eleventh hour for India to adopt comprehensive legislation relating to the modus operandi of prisons and prisoners.

It is not the prisoners who need reformation, it is the prisons. – Oscar Wilde

Note: The opinions are personal to the author, if any.

This article has been contributed by Gaurav Agrawal of Institute of Law, Nirma University, Ahmedabad, Gujarat.