'Immediately Test Inmates Who Show Signs Of Discomfort' : Bombay HC Disposes Of PILs After State Accepts Suggestions For Improving Prison Facilities

The Bombay High Court on Thursday disposed of a batch of PILs raising concerns regarding lack of facilities for proper treatment of prisoners lodged in various correctional homes during the current pandemic of Covid-19 after concluding that most of the suggestions proposed by the petitioners have been accepted by the State.

A division bench comprising Chief Justice Dipankar Datta and Justice MS Karnik was informed by the Advocate General of Maharashtra AA Kumbhakoni that the State has accepted the suggestion to conduct random testing of inmates across the jail/circles or barracks. Thus, the Court directed the prison authorities to forthwith implement the measures for random testing.

Several important suggestions were put forward by Senior Advocate Mihir Desai who appeared on behalf of the petitioners along with Advocate Isha Khandelwal.

Some of the significant suggestions that have been accepted by the State are-

• The staff deployed in the correctional homes will be tested in the same manner as the inmates as per SOP.
• As far as possible the staff deployed in the correctional homes/temporary prisons shall be posted in the present place of posting and they will not be rotated.
• The guidelines issued for the maintenance of hygiene and safety measures for the inmates by the Central Government, State Government or its authorities will be complied with.
  
• A dedicated email ID for lawyers for taking appointments with their inmate-clients in the correctional homes will be notified at the earliest on the website of the prison authorities.
• The inmates will be educated on the importance of preventive measures and hygiene. Awareness programmes to contain the spread of the virus will be organised on regular basis by the Jailor/Competent Authority of the correctional homes including temporary prisons.
  
• The women inmates shall be provided in advance with good quality sanitary napkins for free and the prison authorities shall ensure proper hygiene and appropriate facility for disposal of sanitary pads at all times.
• Telephone call facilities to contact the family members of the inmates shall be made available in the temporary prisons in the same manner as is being done in the case of regular correctional homes.
• The prison authorities will inform the family members/relatives of the inmates upon their transfer to the temporary jails and/or quarantine centres and/or Covid Care Centres.

Moreover, Desai had suggested that the definition of 'High Risk prisoners' should be as per Standard Operating Procedure issued by National Centre Disease Control (NCDC) for contact tracing of COVID-1, cases. According to him, though the State has agreed to test all high risk prisoners, nothing has been placed on record to indicate who these high risk prisoners are.

However, AG Kumbhakoni submitted that in respect of 'High Risk Prisoners', various guidelines issued by the ICMR, Government of India as also the State Government and its authorities will be duly complied with.

Court observed-

"It is not possible for us to accept the submission of Shri Desai that the definition of 'High Risk Prisoners' should be as per SOP issued by National Centre Disease Control (NCDC) for contact tracing of COVID-1, cases.

We cannot substitute our opinion for that of the experts in the field and direct the State Government to accept the definition of 'High Risk Prisoners' as per the SOP issued by NCDC. Once the learned Advocate General has made a statement that the State will follow the guidelines issued by the ICMR, the Central Government, the State Government and its authorities in the case of High Risk Prisoners, then it is not possible for us to substitute our opinion in matters of State which are in the realm of policy based on the opinion of the experts."

AG Kumbhakoni told the Court that although it is the ultimate aim of the State Government and the Prison Authorities to test each and every inmate, it may not be possible to immediately do so, as having regard to this unprecedented situation and the challenges faced by the State in reaching out medical aid and help to those who are already affected by the virus, the resources available have to be evenly distributed to all concerned in the society.

Justice Karnik noted-

"We do not find this submission of Shri Kumbhakoni unreasonable. In any case, we are satisfied with the measures taken by the State Government for the present. The State has accepted most of the suggestions of the Petitioners during the course of this hearing. We therefore do not propose to issue any directions on this submission of Shri Desai. We may, however, hasten to add that whenever an inmate shows signs of any physical discomfort or complains of such discomfort like cough, cold, etc. such inmate should be immediately tested."

Finally, Court clarified that it was not for the Courts but the State High Power Committee constituted following directions of the Supreme Court to all States and Union Territories to determine the class of prisoners that can be released on temporary bail in wake of the Covid-19 pandemic which has already penetrated the overcrowded jails of the State.

Court said-

"The Petitioners contend that the categorisation by the HPC affects their rights. As noted earlier, the HPC has been constituted for a specific purpose by the Apex Court for decongesting the prisons for a specific period in view of the outbreak of the present pandemic and thus it is for the HPC to determine the categories in the light of the observations of the Supreme Court. We are afraid that the case put forth by the Petitioners is not in the nature of transgressing any constitutional right or statutory prescription."

Court directed the State to fully comply with the directions issued under the interim orders passed in the matter and noted that the suggestions made by the petitioners were accepted by the State and their compliance was ensured by the Advocate General on behalf of the State. Court disposed of the PILs and dismissed one PIL filed by Advocates Devmani Shukla and Nikita Abhyankar.

Case Number: PIL-CJ-LD-VC-2 of 2020 & 3 Ors.

Case Name: People's Union for Civil Liberties Vs. State of Maharashtra & Ors (Lead PIL)

Coram: Dipankar Datta CJ and MS Karnik J

Counsel: Sr Adv Mihir Desai for two of the petitioners, Adv Sunny Punamiya and Adv Bhavesh Parmr for the other two petitioners, AG AA Kumbhakoni for State

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