BREAKING- No Arrests In Violation Of Arnesh Kumar Verdict; HPCs Should Release All Prisoners Who Were Released Earlier : SC Passes Directions To De-Congest Prisons

Taking note of the surge of the second wave of COVID pandemic, the Supreme Court has passed a slew of directions to de-congest prisons.

A bench comprising Chief Justice of India NV Ramana, Justices L Nageswara Rao and Surya Kant passed the following directions in the suo moto case In Re Contagion of COVID Virus In Prisons.

1. No Arrests In Violation of Arnesh Kumar judgment

The Court held that authorities should not make arrests in violation of the guidelines laid down in the 2014 judgment in the case Arnesh Kumar vs State of Bihar, which had held that arrests should be an exception in cases where the offences are punishable with less than 7 years imprisonment.

In view of the rampant spread of coronavirus, the Supreme Court felt the need to reiterate the Arnesh Kumar verdict, in order to limit arrests.

"...this Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic", the Supreme Court ordered.

2. High Powered Committees constituted last year to consider release of prisoners at the earliest following guidelines

The High­ Powered Committees constituted by the State Governments/Union Territories shall consider release of prisoners by adopting the guidelines (such as inter alia, SOP laid down by NALSA) followed by them last year, at the earliest. Such of those States which have not constituted High Powered Committees last year are directed to do so immediately. Commissioner of Police Delhi shall also be a member of the High­ Powered Committee, Delhi.

3. HPCs should consider release of all inmates who had been released last year

High­ Powered Committee, in addition to considering fresh release,should forthwith release all the inmates who had been released earlier pursuant to the Supreme Court's order dated 23.03.2020, by imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.

The Court passed this direction accepting the suggestion made by Senior Advocate Dr Colin Gonsalves.

In this regard, the Court noted that more than 90% of the prisoners, who were released by the HPCs following last year's court order, have returned back.

4. Minimum 90 days parole

All those inmates who were granted parole, pursuant to Supreme Court's earlier orders, should be again granted a parole for a period of 90 days in order to tide over the pandemic.

5. Decisions of HPCs, Prison Occupancy to be updated in websites

"...the fight against the pandemic is greatly benefitted by transparent administration. In this regard, our attention was drawn to example of Delhi, wherein the prison occupancy is updated in websites. Such measures are required to be considered by other States and should be adopted as good practice. Moreover, all the decisions of High­ Powered Committees need to be published on respective State Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information", the bench observed.

The Court further issued directions to ensure that proper medical facilities are provided to all prisoners who are imprisoned.

"The spread of Covid­19 virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. It is necessary to maintain levels of daily hygiene and sanitation required to be improved. Suitable precautions shall be taken to prevent the transmission of the deadly virus amongst the inmates of prisons. Appropriate steps shall betaken for transportation of the released inmates of the prisons, if necessary, in view of the curfews and lockdown in some States", the bench observed.

Prisons over-burdeneed

The Court passed the directions after observing that many prisons in the country were overburdened and beyond optimal capacity. It noted that there were over 4 lakh prisoners in

"...we may notice that the requirement of de­congestion is a matter concerning health and right to life of both the prison inmates and the police personnel working.Reduction of impact of Covid­19 requires this Court to effectively calibrate concerns of criminal justice system,health hazards and rights of the accused. From limiting arrests to taking care of Covid­19 Patients, there is are quirement for effective management of pandemic from within the prison walls so as to defeat this deadly virus", the bench observed in the order.

What transpired during the hearing

During the hearing held on Friday, the bench expressed alarm over the COVID situation.

Last year, during the first wave of the COVID-19 pandemic, the Supreme Court had directed the constitution of High Powered Committees in all states to consider the release of convicts and under-trials in less heinous offences on interim bail or parole so as to de-congest prisons.

The Supreme Court had suggested that the HPCs could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

The HPCs were to consist of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s).

When the pandemic started to recede by November-December last year, many High Courts/HPCs cancelled the interim bail, and asked the prisoners to surrender.

Click here to read/download the order