Court steps in to ease congestion in jails

Outside Byculla jail, Mumbai.

COVID-19 has struck Maharashtra’s prisons again. As of April 25, there were 230 active cases among inmates and 110 staffers who had tested positive for coronavirus. All jails in the Mumbai metropolitan region, including Mumbai Central, Thane, Taloja, Kalyan and Byculla, are crowded beyond capacity. While the maximum carrying capacity of the State’s 47 prisons is 23, 217, currently as many as 34,896 prisoners, including a considerable number of undertrials, are lodged in them.

In Byculla women’s jail, 41 inmates have tested positive for COVID. They include former media executive Indrani Mukerjea, who is facing trial for the alleged murder of her daughter Sheena Bora in 2012, and Jyoti Jagtap of Kabir Kala Manch, who has been booked in the 2018 Elgar Parishad case. Two COVID-related deaths have been reported from Nagpur Jail.

Last year, the State appointed a committee to look into the problem of congestion in Maharashtra’s jails. The committee had recommended that prison authorities handle the problem by releasing convicted inmates on emergency parole and undertrials on temporary bail. The release of about 10,000 inmates lessened the pressure but new arrests and convictions after the courts started functioning post the first COVID wave ensured that the space crunch never quite eased. After the first wave, some States had directed prisoners to return but Maharashtra did not, saying that they would not be recalled as long as the Epidemic Diseases Act, 1897, was in place. All the jails, except the ones in Jalna, Nanded and Nandurbar, are filled to capacity. Accordingly, the High Court of Bombay suggested relocating undertrials to less crowded jails.

On April 16, acting suo motu on the basis of news reports about overcrowding in jails and an increase in COVID-19 cases, the court directed magistrate courts all over the State to decide on applications filed by prison authorities on shifting undertrials.

The sticking point is that the jails are already overcrowded. Undertrials cannot be shifted to open jails which are essentially minimum-security prisons and are reserved for convicts with a history of good conduct.

After seeing newspaper reports of April 14 that said that as many as 198 prison inmates and 86 prison staff had tested positive for the virus, a division bench of Justices Nitin Jamdar and Chandrakant Bhadang directed the State on April 16 to provide information on the COVID-19 status of prisoners and staff in all the jails in the State.

According to press reports, Yerawada Central Prison in Pune district had the maximum number of cases, with 31 inmates and 11 staff infected, followed by Kolhapur prison with 27 cases, Thane prison with 26 cases, Mumbai Central Prison (better known as Arthur Road Jail ) with 18 cases, Nashik Central jail with 15 cases and Nagpur Central Jail with 10 cases.

Pointing out that the number of infected people within prisons had shot up from 40 to 200 in a month’s time, the judges said: “Let the respondents furnish information on the status of the COVID-19 cases, both the staff members and the inmates in the prisons in Maharashtra; the measures being taken and proposed to be taken to control the spread of the virus in the prisons; and measures to decongest the jails in the State.” The bench said the current situation required the intervention of the court and directed the registration of a suo motu case (Criminal) under Rule 4 of the Bombay High Court Public Interest Litigation Rules, 2010. The court said this was a fit case for it to take note of in the cause of public interest. The respondents were State of Maharashtra through the Secretary (Home Department), Secretary (Revenue Department), Director General of Police, and Director General of Prisons.

Representing the State, Advocate General Ashutosh Kumbhakoni said the State was aware of the situation and had been addressing the problem since last year. The bench posted the matter for hearing on April 20.

On April 20, a division bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni heard the PIL. The court was told that the prison authorities were doing their best to provide treatment for the prisoners. Kumbhakoni said that despite the efforts of the authorities, some prisoners had contracted COVID “for reasons and grounds beyond the control of prison authorities”. Chief Justice Dipankar Datta said: “Persons above 45 years at the time of arrest to be sent for vaccination immediately if not already vaccinated.”

The bench allowed an intervention application moved by senior advocate Mihir Desai on behalf of People’s Union for Civil Liberties (PUCL), which had filed an original petition last year asking for prison decongestion in view of the pandemic. The State had initiated a proposal to construct new jails as well as create “temporary” ones. Thirty-six temporary jails had been created last year by converting vacant educational institutions, hostels and so on, but these had to be handed back after the first wave of the virus when some of these institutions reopened. However, with the second wave and the closure of these institutions, the prison authorities had reopened 14 such temporary prisons again.

The State suggested that new prisoners should be admitted after their RT-PCR tests showed them to be negative. However, the RT-PCR test takes 24 hours whereas an undertrial has to be transferred immediately from police custody to judicial custody. Chief Justice Dipankar Datta suggested that the prisoner be tested even before he was produced before the magistrate so that if he was COVID-positive, chances of him spreading the virus to police personnel were reduced. Mihir Desai pointed out that temporary prisons were also used as COVID care centres. “Only after 7-10 days are spent by a new prisoner at such temporary prisons, he/she is transferred to permanent prisons,” he said and opined that this added to the chances of the new prisoners contracting the virus. The Chief Justice suggested double testing, once after arrest and once before they were assigned prisons. On the matter of general safety, Advocate General Ashutosh Kumbhakoni asked for more video conferencing to replace the in-person meetings between inmates and their families and lawyers. Accordingly, the Court asked prison authorities to consider increasing the frequency of video conferencing to twice a week.