This article was co-authored by JURIST South Asia Bureau Chief Ananaya Agrawal and Ishan Bhatnagar, both of whom are students at National Law University, Delhi in India
As the world continues to grapple with the COVID-19 pandemic, rights discourse in several countries has sparked concerns about the welfare of more marginalized groups who tend to be at once more burdened and less visible in times of crisis.
In this explainer, JURIST will explore the rights of India’s pandemic-era prison population, along the prisms of infrastructure, capacity and vulnerability of these groups.
What rights do prisoners in India have?
In March 2020, the Indian Supreme Court took cognizance of the risk of COVID-19 spreading quickly in prisons. Even before the pandemic, Indian courts have determined that the right to life and dignity under Article 21 of the Constitution is inclusive of the right to health which has been deemed essential for a dignified life. Imprisonment does not deprive a citizen of their right to life and healthcare, and the State’s duty to ensure access to healthcare facilities extends to convicted persons and people standing and awaiting trial as well.
This duty of care has also been clearly laid down by Rule 24 of the United Nations Minimum Standards for Treatment of Prisoners (‘Nelson Mandela Rules’) which states that “the provision of health care for prisoners is a state responsibility” and that there should be no discrimination based on the prisoner’s legal status. The UN Human Rights Committee has also observed that failure to extend protection against the spread of contagious diseases in prisons may amount to violations of the right to life and liberty under Articles 6 and 9 respectively of the International Covenant on Civil and Political Rights 1996.
What are concerns of Infrastructure and capacity during a pandemic?
Although the Nelson Mandela Rules call for a level of healthcare in prison that matches that available to the general population, this often fails to hold in practice.
The health of prisoners is at particularly because of limited medical and sanitation infrastructure. As a report by the Penal Reforms International explains, the prisoners do not have the liberty to take precautions that may otherwise be quite easy to implement for the general community. They have limited access to water and hand sanitizer, are restrained using handcuffs (making it difficult to cover mouths while sneezing or coughing), are forced into overcrowded spaces of eating, working and sleeping, have limited information of the outside world and insufficient access to specialized healthcare for urgent treatment.
Overcrowded Indian prisons have often drawn criticism for neglecting health and hygiene, providing inadequate food, and more. As per the Prisons Statistics Report of 2019 published by the National Crime Records Bureau, the actual strength of medical staff is 49% lower than the sanctioned strength of 3,320. States like West Bengal and Karnataka have only one medical staff personnel for 923 and 691 prisoners respectively, whereas smaller union territories like Daman & Due, Lakshadweep islands, and Dadra & Nagar Haveli reported having no medical staff onboard. Prisons also face bottlenecks in access to medicine, high rates of disease and absence of specialized doctors.
Even where countries take measures to ensure health and safety in prisons, they employ pandemic control measures that limit outside contact, such as suspension of visits by family and relatives or legal representatives, as well as placing prisoners under quarantine or isolation. These measures can be harmful for the mental health of prisoners and the rights during trial respectively.
How are vulnerable groups impacted?
A majority of India’s prisoners are young, poor and illiterate. They are overwhelmingly from disadvantaged communities. Due to the bail system, their capacity to pay and not the actual crime in question, determines the period of time they spend in jail. This plus insufficient legal aid is further exacerbated during the pandemic. The Indian Supreme Court had in Contagion of Covid 19 Virus in Prisons directed formation of High-Powered Committees headed by High Courts for decongestion efforts. However, as a report by the Commonwealth Human Rights Initiative reveals, many prisoners were excluded from consideration on the basis of their charge, such as terrorism/national security, offences under the Narcotic Drugs and Psychotropic Substances Act, and offences against women and children. Individuals languishing in for these offences while awaiting or undergoing trial tend to come from disadvantaged communities, who are disproportionately targeted by the police during investigations and are also not able to secure bail or evade arrest like the privileged.
Another affected group are elderly inmates. Activist Medha Patkar recently petitioned the top court highlighting that they have rarely benefitted from the early release measures because the High-Powered Committees had tended to prioritise administrative convenience and social conditions over susceptibility to COVID-19. For instance, Maharashtra, one of the worst-hit states, itself has 167 prisoners between the ages of 70 and 90 years. This is concerning because many elderly prisoners have been behind bars for decades, and having developed comorbidities, stress, cognitive decline and dementia, they find it increasingly harder to live in isolation during the pandemic.
Likewise, juveniles in prisons constitute a protected group at risk of abuse, malnutrition and neglect by prison authorities and adult inmates. For the current pandemic, the United Nations Children Fund has also released a statement that children and juveniles in detention are at a high risk of contracting COVID-19 due to underlying physical and mental conditions. Children who have been in prison since birth due to their parents’ incarceration are often at a greater risk of communicable diseases due to low immunity and poor childhood healthcare.
What measures can we take?
Over the past year or so, Indian prisons have taken actions such as thermal screening of new inmates or visitors entering prisons, creating quarantine wards, temporary transfers to alternate accommodations, and releasing prisoners on bail or personal bonds. These should also be supplemented by extending screening to all prisoners to rule out asymptomatic cases, sanitizing entire prisons, regularly replenishing prison hospitals with equipment and medicines, and exploring telemedicine options. A recent Supreme Court decision noted criteria for house arrest such as “age, health condition and the antecedents of the accused, the nature of the crime,” and this should be more proactively considered during the pandemic to reduce the burden of overcrowding on health and sanitation facilities.
To avoid putting prisoners in solitary confinements, prison authorities must ensure that those in isolation are not cut off from contacting their parents, children, and friends in the outside world and that they can socialize through prison activities and rehabilitation as far as possible. Likewise, prisoners should be allowed to access their lawyers or legal representatives through phone, video calls or letters so that their fair trial rights are not suspended.
When it comes to children, pandemic control measures commensurate with their rights as protected groups. For instance, social distancing should not entail violations of the UN Convention on the Rights of the Child 1990 and children should not be separated from their parents, against their will, unless it is absolutely necessary and in their best interests. If separation is unavoidable, the child should be temporarily accommodated with close family members or social child-care units. Similarly, for juvenile offenders and the elderly, options of early release or parole should be explored that they can safely return to their families or support systems.
Finally, as India ramps up its vaccine drive, prisoners should not be left behind. Recently in the monsoon session of the Parliament, India’s Minister of Health and Family Welfare, Shri Mansukh Mandaviya stated that 34.4% prisoners have received the first vaccine dose whereas only 4.6% have received both doses. There is great disparity among states as well; even though bigger states like Maharashtra have vaccinated nearly 59.4% inmates, nearly 15 states and union territories have not vaccinated a single prisoner with the first dose. It is clear that central government must leverage the federal cooperation to ensure more uniform and equitable process across India.
At all points in time, action plans for pandemic control must be reconcilable with prisoners’ rights as individual human rights and detainees of our criminal justice process.