Swift Interference Of Courts To Decongest Prisons Due To The Spread Of COVID-19

Thereafter, on 22^nd March 2020 when the Hon'ble Prime Minister and Government of NCT of Delhi declared that there would be 21 day lockdown, it was quite clear that this would lead to the extension of suspension of the functioning of courts.

On 23.03.2020, Hon'ble High Court issued an Office Order stating that the functioning of all courts in Delhi was to be suspended till 04.04.2020, which was subsequently extended till 15.04.2020. All matters listed on these dates were Enbloc adjourned. I couldn't help myself from wondering as to what would happen to the safety and rights of the undertrials in overcrowded prisons, as their bail application was not going to be heard for another month and as COVID-19 was expected to spread like wildfire during this period.

At that point, Order dated 23.03.2020 of the Hon'ble Supreme Court and the Delhi High Court caught my attention. Hon'ble Supreme Court in the SMWP (C) 1 of 2020 Supra vide Order dated 23.03.2020 directed the State/ Union Territory to constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) and (iii) Director General of Prison(s) to determine which class of prisoners can be released on parole or on interim bail for such period which may be considered appropriate. On the same day, the Hon'ble High Court in W.P.(C) No. 2945 of 2020 titled "Shobha Gupta & Ors. V. Union of India & Ors." also passed a final order directing the State Govt. of NCT of Delhi (GNCTD) to add Rule 1219A and 1243A in the Delhi Prison Rules, 2018, introduce 60 days parole in one spell and a temporary facility of "Special Furlough" and introduce the expression Emergency Parole authorizing the government to grant Parole upto 8 weeks in one spell, in addition to regular parole subject to conditions prescribed by the government. The Hon'ble High Court further directed that undertrial prisoners booked in only one case in which the maximum sentence is 7 years or less and who have completed minimum 3 months in jail be granted interim bail for a period of 45 days. Steps had to be taken within a period of 2 days by GNCTD and Delhi Police.

In terms of the aforesaid Orders, the Member Secretary of the Delhi Legal Services Authority received communication from DG (Prisons) stating that they had found and listed 1000 undertrial prisoners. These undertrial prisoners belonged to four categories and these categories were:

1. First time offender
2. Have been arrested or are facing trial for an offence punishable upto 7 years or less;
3. The case is triable by Magistrate; and
4. They are in custody for last 3 months or more.

The Member Secretary directed the Secretaries of District Legal Services Authorities to depute panel lawyers/ Jail visiting lawyers not only to assist the Remand Magistrate posted in jails for extension of remand but also with the directions to assist the inmates who fall in the abovementioned category for drafting their bail application for grant of interim bail/ regular bail. The applications after being forwarded by the Jail Superintendent was to reach the Jail Section of DLSA situated at CPRO building, Tihar Jail from where the same was to be delivered at Offices of District Legal Services Authorities in different court complexes by Dispatch Riders. These Applications thereafter were to be filed in the Court of Duty Magistrate and/or Sessions Courts through Remand Advocates posted in courts.

Thereafter, Vide Order dated 25.03.2020, the Hon'ble Chief Justice, Hon'ble Justice Siddharth Mridul and Hon'ble Justice Talwant Singh took Suo Motu cognizance of COVID-19 and suspension of work since 16.03.2020 and the Hon'ble judges under Article 226 of Constitution of India ordered that in all matters pending before the Hon'ble High Court and subordinate courts wherein such interim orders issued were subsisting as on 16.03.2020 and expired or were to expire thereafter were automatically extended till 15.05.2020 until further orders, except where any orders to the contrary have been passed by the Hon'ble Supreme Court in any particular matter during the intervening period. This also included matters pertaining to bail wherein no coercive steps were to be taken till the next date of hearing.

Thereafter, on 27.03.2020, GNCTD issued an Order to grant upto eight weeks emergency parole, which was to be counted towards the sentence of the prisoners. GNCTD further decided to constitute a committee to screen and recommend the cases of grant of emergency parole to the convicts. The Committee consisted of:

1. DG (Prisons)- Chairman
2. Spl. Secretary (Home) – Member
3. DIG (Prisons)-Member
4. ADM (West)- Member
5. Suptd. Prison HQ-Member

The said committee set out the categories of convicts who would be considered for grant of emergency parole by the above mentioned committee and they set out the following categories:

1. All convicts who are presently outside the prison either on furlough or on parole.
2. All convicts who have availed parole/ furlough in the past.
3. All convicts not falling under (1) or (2) above but otherwise eligible.

The convicts were granted emergency parole on the basis of certain terms and conditions which are as follows:

• The convicts were bound to surrender themselves on expiry of the parole; and
• All pending applications for grant of regular bail would be deemed to have been withdrawn in view of grant of emergency parole.

The High Powered Committee headed by Justice Hima Kohli of the Delhi High Court on 28.03.2020, relaxed the aforementioned criteria for release of Under Trial Prisoners as follows:

1. Under Trial Prisoners who are facing trial in a case which prescribes a maximum sentence of 7 years or less; and if
2. Even if, the Undertrial Prisoners, has more than one case and in all other cases, he's "on bail", except the one for which he is being considered and the same prescribes punishment for 7 years or less; and if
3. Undertrial prisoner is in custody for a period of one month or more;
4. In case of women Undertrial prisoners, if she is in custody for a period of 15 days or more;

Inmates who are undergoing civil imprisonment can also be considered for interim bail of 45 days.

It has been highlighted in the minutes that on the basis of this criterion, approximately 800 undertrial prisoners may be the beneficiaries and their release would ease out the Jail population.

The Committee has strictly prohibited consideration of bail to prisoners accused under certain statutes and provisions such as NDPS Act, Section 4 & 6 of POCSO Act, Foreign Nationals etc. The Committee further resolved that DG Prisons will co-ordinate with Nodal Officer of Delhi Police to ensure safe transportation of the released convicts/ undertrial prisoners from jail to their houses in Delhi. The Committee has also looked into remission of sentences.

Other states in compliance of the Orders of the Hon'ble Supreme Court have also taken appropriate measures to prevent the spread of COVID-19 in prisons. Since prisons come under the respective state governments, each state has framed it's own additional rules on how many prisoners will be released on parole. Majority of the states have considered to release of first time offenders, undertrials accused of offences punishable with 7 years or less. Further, majority of the states have also considered the extension of parole to convicts already on parole for eight additional weeks. Uttar Pradesh High Powered Committee has considered the release of convicts who have already availed 1 parole peacefully and have surrendered on time. West Bengal government has decided to not release prisoners charged under POCSO, NDPS section or those convicted or undertrials for murder, rioting or crimes against women. Uttar Pradesh Government has decided not to release repeat offenders.

The number of cases in the past few days has surged significantly in all states, the highest being in the states of Maharashtra and Delhi followed by Kerala, Tamil Nadu, Andhra Pradesh and other states. In light of the deteriorating circumstances, the High Powered Committee constituted in Maharashtra and Uttar Pradesh have decided to release 11000 prisoners each. West Bengal and Delhi have announced the release of 3000 prisoners each and Punjab will release over 6000 prisoners. Madhya Pradesh government issued a statement stating that they will release 5000 convicts on emergency parole of 60 days and another 3,000 undertrials will be released on interim bail of 45 days. Meghalaya as on 01.04.2020 had released 94 prisoners out of the 174 prisoners identified in the Shillong District Jail.

After the Hon'ble Supreme Court's Order and after the constitution of the High Powered Committee, Kerala High Court has directed the release of prisoners facing upto 7 years imprisonment. The Order, however, is not applicable to prisoners having any criminal antecedents, previous convictions or in the case of habitual offenders and also with respect to persons undergoing trial or remanded custody in more than one cases.

The decision of the High Powered Committee excluding those accused under the Special Acts has been challenged by an undertrial prisoners in Maharashtra.

It is laudable to see how the rights of the prisoners have been protected during such extraordinary circumstances and how their basic human rights have been kept in mind by the Hon'ble courts during such times. It is also pertinent to mention how the administration has also swiftly taken measures to prevent the spread of COVID-19 in prisons as recorded in the Order dated 16.03.2020 by the Hon'ble Supreme Court and how they have continued to act swiftly towards the compliance of the various Orders of Courts.

The author is an Associate at Vedya Partners practicing at the Supreme Court of India. The author's views are personal.