On May 5, two months after the Arthur Road jail superintendent warned that an outbreak of COVID-19 could not be contained in the jail due to overcrowding, his worst fears came true: the first positive case was discovered in the precincts.
The number has, as expected, grown in the sardine-can jail, with its 25-ft-high walls: there are now 184 COVID-19 patients among over 2,500 inmates . The question of isolating the patients and maintaining physical distancing in such conditions is out of the question.
Seen in the context of over 50,000 positive cases in the State , this may seem like a small number. But it has brought into sharp focus what legal experts and activists have been harping on: the need for prison and judicial reforms.
While there has been an application of mind to prison reforms in India , the ideas were slow in coming, the implementation even slower. Somewhere, the will — whether in the judiciary or legislature — has been lacking. There is still a reluctance to grant bail to undertrials, with the result that jails are overcrowded, and as we are now seeing, hotbeds of disease.
Justice V.R. Krishna Iyer, a former Supreme Court judge credited with reforming the criminal justice system, had once said, “In our world, prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters.”
The reforms mandate
The idea of reforms took birth in 1835, when Lord Thomas Babington Macaulay, in his representation to the Legislative Council, spoke about the inhuman conditions in Indian prisons. His recommendations led to the first committee on reforms being formed by Lord Willian Bentinck. What Lord Macaulay said also became the basis for the Prisons Act of 1894.
Comment | The state of Indian prisons
The idea of transformation, though, took some time in coming. The Jails Committee in 1919-20, headed by Sir Alexander Cardew, underlined the need for a reformative approach to prison inmates and discouraged the use of corporal punishment. Decades later, the All India Jail Reform Committee, in 1980-83, recommended prisoners’ rights.
Since then, various State and Centre-led committees have recommended reforms. Yet, when the novel coronavirus reared its head in the country, the Supreme Court had to intervene and direct States to release prisoners.
There has been reluctance by the judiciary and the legislature to address the growing number of prisoners, and to decongest our jails, say legal experts. While the judiciary is primarily responsible for not addressing the issue of prisoners, the legislature is yet to bring in reforms that could decriminalise antiquated laws, or even re-examine British-era criminal laws.
The question of bail
Nowhere is this laxity more evident than in the current scenario. The courts have been tasked with releasing prisoners, which they are doing in the laborious manner they are known for.
“The Supreme Court has passed no order, and has only directed the State governments to constitute high-powered committees (HPCs) so that they can come up with criteria by which prisoners can be released,” says Madhurima Dhanuka, programme head, Prison Reforms Programme, Commonwealth Human Rights Initiative. “As the committees have no power to release prisoners, the courts have to decide on a case-to-case basis.”
The HPC in Maharashtra comprises a High Court judge, the additional chief secretary, Home, and Director General, Prisons. It paved the way for the release of 8,381 prisoners across Maharashtra.
But human rights organisations and activists went to court saying this was not sufficient.
On May 11, the committee decided to release 50% of the 35,239 prisoners in the State. But by May 22, just 114 inmates had been released from Arthur Road jail, which primarily houses undertrials, and 1,036 in total from all prisons. A total of 2,240 convicts were released on parole from other prisons between May 11 and May 22. The total number of inmates released since lockdown stood at 8,381 on May 22, which includes the 5,105 prisoners who were already released after the HPC met for the first time on March 25.
The State wants undertrials to follow the legal process of securing bail despite the constitution of an HPC.“Neither the Supreme Court nor the committee has solved the problem,” said former SC judge, B.N. Srikrishna. “Does the committee want all undertrials to go to court? Then what is it that the committee has done extra?”
The already long process of obtaining bail is now longer because courts are not functioning at full strength. Therefore, it is better to let undertrials out on interim bail and when the term expires, they can be taken into custody again, said Justice Srikrishna.
Where bail petitions have come up for hearing, courts have been rejecting them despite the prevalence of the novel coronavirus in the State and former SC judges terming it an ‘unnerving’ and serious issue.“The judges are not applying their minds when they are rejecting bail. Bail is the rule and jail is the exception,” said Justice Srikrishna.
When an accused is arrested, he needs to be tried immediately, but because an investigation needs to be carried out, it is not possible to start the trial soon. The idea is to have the accused available when the trial begins. So an accused should be allowed to go home as long as he comes back, said Justice Srikrishna. “Bail should be denied only if there is a risk of flight, or if he will tamper with the evidence.”
Retired SC judge H.S. Bedi said the denial of bail was unnerving. “We are faced with a very difficult situation and it is the lack of maturity on part of the judges because they are not taking into consideration the situation on the ground,” he said.
K.G. Balakrishnan, former chief justice of India and ex-chairperson of the National Human Rights Commission, said courts rejecting bail was a ‘real problem’. “At a time when we are trying to decongest our prisons, courts are rejecting undertrials’ bail pleas,” he said.
At over 67%, no other country has such a large number of undertrials, around 33% of whom are convicted. “It should be the other way round. Several directions are given by courts to no avail,” said Justice Balakrishnan.
The only way this can be achieved is when the SC gives general directions on being liberal while granting bail, he said. “In cases where the undertrial has undergone the maximum sentence, they can be released on personal bonds. At times, it is not possible to arrange for a surety and complete other formalities,” he said.
Crowding in jails
The cost of keeping someone in jail is not small, either. The 1,339 jails in India have over 4,60,916 inmates, employ over 60,000 jail officials and incur an expense of over ₹6,000 crore, according to the National Crime Records Bureau statistics of 2018. Uttar Pradesh, Madhya Pradesh, Bihar, Maharashtra, West Bengal and Punjab accounted for 57.1% of the total prisoners in India in 2018.
Before COVID-19 struck and the government released 8,381 prisoners, Maharashtra had over 35,000 jail inmates. The annual prisons’ budget increased by 62% to ₹6,086.7 crore in 2018-2019 from ₹3,744.96 crore in 2013-2014. The expenditure increased by 58.7% to ₹5,283.7 crore in 2018-19 from ₹3,328.378 crore in 2013-14.
The Law Commission, in its 77th report in 1978, had said, “A high percentage of jail population comprises of an undertrial person. This is not a satisfactory situation.”
To deal with the problem of undertrials, it said courts should give preference to cases where the accused are in jail and the target for their disposal should be four months.
A certain amount of stringency is necessary to ensure prompt disposal so that the interested parties do not prolong pendency of cases; trial magistrates should furnish periodical statements of cases not concluded within the prescribed time; adjournments of cases should not be granted unless absolutely necessary where the accused is in jail, it said.
Conceptual shift
Courts’ reluctance to grant bail needs to be framed in the larger context of how they view crime, punishment, and the criminal.
“Unnecessarily prolonged custody does not serve any societal purpose, but adversely impacts the psyche of the individual and his or her immediate family by virtually criminalising the person before trial. Bail, not jail, should not be reduced to a mere slogan,” said retired SC judge Madan Lokur.
Justice Lokur said he had perceived a gradual shift in the way crime and punishment were perceived. In 1980, the SC held in a case that while awarding the sentence, regard must be given to not only the crime but also the criminal. “Following this decision, the debate on punishment being deterrent and retributive or reformative and rehabilitative clearly shifted in favour of the criminal,” he said.
The past few years, though, have been regressive: the purpose of punishment and sentencing is gradually shifting back to deterrence and retribution. “The shift is clearly visible in several cases in which bail is declined and anticipatory bail is refused. The criminal as a human being has become less important than the crime,” said Justice Lokur. It is for this reason that the number of offences for which death penalty is awarded has increased, he said.
“We need to follow the law and also appreciate, in this context, the reason behind the Indian Penal Code giving wide discretion in the quantum of punishment for various offences, including murder.”
To Justice Lokur, it is important that courts appreciate personal liberty. “The liberty of an individual should not be taken away for the asking and the courts should not allow this to happen,” he said.
Till such a depth of understanding returns to the legal system, the words of British poet William Blake will ring true. In his book, The Marriage of Heaven and Hell , he wrote, “Prisons are built with stones of law.”
Walled in
Built in 1926, the Arthur Road jail was upgraded in 1994 to make it a central prison with 16 barracks to house 800 prisoners — woefully inadequate to handle the current load.
Once the COVID-19 cases were discovered, efforts to find a suitable quarantine location took the jail authorities to the Eversmile Complex at Mahul in Chembur, where project-affected persons in the city have been resettled.
The place is controversial: industries in the neighbourhood have been held responsible for the chronic cases of asthma and tuberculosis in the area.
Even a letter from the local arms department of the Mumbai Police suggesting it was “unfit” for quarantine facilities went unnoticed. Eventually, the Bombay High Court, acting on a public interest litigation, said the Brihanmumbai Municipal Corporation should not use the site as a quarantine facility without the court’s permission. An alternative is yet to be found.
