Prisons Should Not Be Turned Into Death Sentences
Prisons are packed as much as possible by design; thus, social distancing is not an option. Indian prisons’ endemic overcrowding has further made the inmates vulnerable to the virus. The fear of an uncontrollable outbreak in prisons looms large, as when the parole period ends, prisoners are forced to return to congested jail cells.
Words by Avantika Tewari and Devika Shekhawat
May 14, 2021
Illustration by Namita Sunil
A deadly Covid-19 second wave has engulfed India, and the failure of the country’s healthcare infrastructure has lead to the mounting death toll. The official number of deaths caused by COVID-19 in India till May 14, 2021, crossed 2.58 lakhs, but according to a report released by the University of Washington, the actual number of Covid-19 deaths is at least three times the official figure.
Every day, we find ourselves scrambling for resources, hospital beds, and oxygen cylinders to save the lives of our loved ones. Our lives have been rendered expendable by the lethal combination of state negligence and the neoliberal assault on public welfare. As we pray for the wellbeing of those dear to us, we must also think of the threat this virus poses to prisoners, both innocent and guilty, who are languishing in overcrowded and under-resourced prisons across the country.
Jails and prisons are ideal environments for an infectious disease to spread. Prisons worldwide are blighted by diseases associated with overcrowding, systemic neglect, poor sanitation and moral reprehension towards prisoners. Expectedly, the second wave of the COVID-19 pandemic has resulted in a surge of positive cases in prisons across the country. According to news reports, as many as 2,803 inmates have tested positive for COVID-19 in prison facilities across India.
Earlier this month, the Madras High Court held the Election Commission of India complicit in risking hundreds and thousands of lives for narrow electoral gains by allowing massive political rallies to occur and flout COVID-19 protocols. The criminal negligence on display is the direct result of our democracy’s one-dimensional focus on reducing people to their capacity to exercise their vote. We do not hear our politicians talk about the condition of prisoners, even amidst a pandemic, due to their non-electoral representation.
“In jails, we are de facto stripped of our citizen’s rights, as even undertrials have no right to vote. One is denied the right to participate in any election without even having been proved guilty. It is another point that even if proven guilty, no one has the right to strip us of this right. Of course, the big mafia can get elected from within the jail, but the ordinary citizen – undertrial and convict – is disenfranchised. This issue is never raised by any of the parties and it is not written in any jail manual as far as I know. In addition, conjugal rights are also not allowed for undertrials.” Kobad Ghandy in Fractured Freedom: A Prison Memoir.
The electoral disenfranchisement of prisoners is the reason why there was no mention of the rights of prisoners amidst the jubilance from a recent election result, where the Assamese peasant leader Akhil Gogoi, who has been in prison since December 2019 under sections of the UAPA for protesting the Citizenship Amendment Act 2019, contested and won the election from Sibsagar constituency from within the prison.
Criminal Apathy for Prisoners?
How systemic injustices of the carceral prison-industrial complex sustain racial and economic disparities are well documented in the context of the United States; India too imprisons the most oppressed, vulnerable and marginalised sections of its society. At the end of 2019, the National Crime Records Bureau noted that the “share of Scheduled Castes among undertrials languishing in jails stood at 21%. The 2011 Census put their share in the population at 16.6%.” Members of the Scheduled Castes (SC) and Scheduled Tribes (ST) are over-represented in prisons, compared to their population share.
Prisons are packed as much as possible by design; thus, social distancing is not an option. Indian prisons’ endemic overcrowding has further made the inmates vulnerable to the virus. The Supreme Court’s order dating back to 23rd March 2020 had directed the States/Union Territories to constitute High Powered Committees that could decide which prisoners may be released on interim bail or parole during the pandemic (COVID 19). Last year, roughly 6,000 inmates – 1,184 convicts and 5,500 undertrials – were released across the country as part of the decongestion drive.
On 30th April, Hindustan Times reported that Tihar is the most congested it has ever been, with over 20,000 inmates currently lodged there against the sanctioned capacity of 10,026. The density in India’s prisons is always higher than the capacity, even without considering the need to follow physical distancing. When one considers the preventive guidelines of containing the spread of the virus, observing physical distancing is the first thing that comes to mind. However, the conditions in jail are such that it is ideal for incubating and transmitting the disease.
In the past month, there’s been a steep rise in the number of inmates and prison staff infected with Covid-19. On 13 April, the Director-General of Prisons Sandeep Goel confirmed that 174 inmates had tested positive in the three prison complexes of Delhi. Ten days after this, there were a total of 227 active cases among Tihar jail inmates and 60 among the jail staff, including a jail superintendent and two prison doctors. Recently, Tihar Jail officials said that by May 11, 369 inmates and 194 jail staff had tested positive.
Pratiksha Baxi notes that despite a national de-congestion drive, even on 22 June 2020, the total prison population stood at an extraordinarily high, with 4,64,127 prisoners. The scope of relief for undertrials prisoners – albeit sanctioned by the courts – has been slow. In addition to that, there has been no moratorium on fresh arrests that would stop the intake of new undertrials into prison, which makes the court’s de-congestion drive somewhat self-cancelling. Should the court not limit the arrests of more people and think of ways to ensure that the disease doesn’t engulf the existing jail population? Many amongst the total of 6000 inmates have gone “missing.” This act of non-return is a disguised blessing for both the prisoners who weren’t as lucky to find their way through speedy trials and the inmates currently suffering the worst of overcrowding in prisons.
The fear of an uncontrollable outbreak in prisons looms large, as when the parole period ends, prisoners are forced to return to congested jail cells. Hindustan Times reported that until February 2021, the population in Tihar was less than 13,000. However, with the return of those released on parole, the total number of inmates exceeded 20,500, more than twice the jail’s official capacity. “India has more than four lakh prison inmates. It is observed that some of the prisons in India are overburdened and are housing inmates beyond optimal capacity…. The requirement of decongestion is a matter concerning the health and right to life of both the prison inmates and the police personnel working,” a bench led by Chief Justice of India N.V. Ramana, and comprising Justices L. Nageswara Rao and Surya Kant, stressed. In light of this, in May 2021, the Supreme Court again ordered High Power Committees to screen and review the re-release of those undertrials while also mandating that those on parole be granted 90 days extension; while maintaining that the cases where the offences are punishable under seven years should be “strictly controlled and limited.” Thus, keeping the authorities from arresting the accused during a pandemic contravention of guidelines laid down by this Court in Arnesh Kumar v. the State of Bihar.
Amongst other things, with the onset of the pandemic, the ability of inmates to stay in touch with their families and lawyers has become bleak. Many inmates are reluctant to be released from prison as their social lives outside of prison have collapsed. Without proactive attempts at ensuring their social security and re-integration, the prison inmates fear that they may succumb to the virus without any means to fend for themselves. Simple tasks like sending and receiving letters from loved ones have become a gamble, left to chance and subject to charity. Countless hearings have been deferred. Those who cannot afford the delay or are denied bail remain in jail awaiting trial – forcing the imprisoned population to survive on whatever little resources made available to them, with their care and treatment becoming subject to social status, goodwill, and bribery. Prisons are an extension of the social inequalities that exist in our society. On the one hand, a “Sahara Shree” Subrata Roy could pay Rs. 1.23 crore to get access to special facilities to run his office from Tihar. In stark contrast, Father Stan Swamy could barely afford the “luxury” of an ordinary sipper only after fighting for a month.
Prison Reforms and the Pandemic
Despite the steady rise in the incarceration rate of women over the last fifteen years, there are currently only 18 jails reserved for women, out of a total of 1401, that house 2,985 female prisoners at present. Most of the women inmates are housed in women’s enclosures of general prisons designed in colonial times to keep ‘delinquent’ men and freedom fighters. On 5th May 2021, at least 57 of the 444 women lodged in Tihar jail tested positive for Covid-19. The prison officials expressed shock and surprise in reporting that the spread of the infection was far quicker in the sub-jail number 6, where 444 women are housed than in jails holding thousands of male prisoners.
Natasha Narwal and Devangana Kalita, founding members of the student feminist group Pinjra Tod, were among the many activists incarcerated under the Unlawful Activities (Prevention) Act (2019) last year for participating in protests against the citizenship amendment act (CAA). The duo has been languishing in prison for over a year, in a “conspiracy case” which holds them responsible for the “Delhi riots'' of 2020, which saw overwhelming violence being meted out on those peacefully protesting the Citizenship Amendment Act (2020). In light of the severity of the situation in prison, Narwal and Kalita petitioned the Delhi High Court from Delhi’s Tihar jail, imploring it to bring prison reforms and take contingent measures to address the pandemic-induced suffering. In their petition, the two have highlighted the plight of prisoners. They have requested a permanent facility of e-Mulaqat or online video conferencing from jail, which lets the contact-deprived prisoners interact with their family and friends in the COVID-inflicted suspension of a physical meeting. They further requested that the monthly calling charges amounting to Rs. 150 to Rs. 300, imposed upon the prisoners, be waived.
Madhurima Dhanuka, the Programme Head of Prison Reforms Programme of the Commonwealth Human Rights Initiative, in an interview with Hindustan Times, pointed towards the basic need for ensuring alternative means for visitation in a situation where physical visits could not be allowed. Since the pandemic and the subsequent lockdown, all usual channels of personal meetings with family members and lawyers have been suspended – taking away from inmates the assurance and comfort of stealing brief glimpses of loved ones and friendly faces. The case Natasha Narwal & Anr. v. State of NCT of Delhi raises problems being faced by all inmates - who are only allowed a meagre one call per week - the Delhi High Court has asked the ASC to enhance and enable conversation with families of inmates. The courts have also ordered that the inmates' medical conditions be regularly communicated to their families and take instructions on the vaccination policy proposed for vaccinating the inmates in the Central Jail-6, which saw a rapid surge in COVID-19 cases. However, the same “courtesy” was not extended to prisoners in the rest of the jails, where undertrials and convicts are without adequate medical facilities.
Although a teardrop in a vast ocean of injustices, this move will support future struggles towards bringing reform to prisons. Last year, the World Health Organisation cautioned that people deprived of their liberty, such as people in prisons, are more vulnerable to the coronavirus disease outbreak. Prisons should not turn into death sentences for prisoners and their families; free vaccination drives and essential medical support for inmates are necessary, which must be provided to inmates, along with continuous communication with their lawyers, family and loved ones for those incarcerated to live a dignified life.
Kobad Ghandy, Fractured Freedom: A Prison Memoir, 2021, Roli Books
AVANTIKA TEWARI and DEVIKA S. SHEKHAWAT are members of Pinjra Tod and research scholars at Jawaharlal Nehru University and Ambedkar University Delhi respectively.