Bail in the time of Coronavirus

Indian prison inmates fall essentially in two categories – those convicted of offences and serving a sentence, and the presumptively innocent who bide their time awaiting trial.

India’s largest such prison is Delhi’s infamous Tihar, which houses an astounding 17,500 such inmates.

As a criminal lawyer, my work takes me to Tihar every week and has led to bonds of friendship with not only clients but also other inmates and jail officials. My interactions with them have taught me that jail strips away most class barriers, and I think somewhere along the line, even jailors question the irony that is their own freedom.

Tihar, like most Indian prisons, is also notorious for being overcrowded and woefully underfunded. Statistics from 2018 reveal that Tihar held 15,161 prisoners against sanctioned space for only 10,026. The staffing figures are even more dismal. Tihar employs only 1,697 jail staff against 3,176 posts.

These figures translate to a measly ratio of 1 official for every 8 prisoners. In any developed country, such prisons would be flagged for human-rights violations.

With such undeniably grim prison facilities, one cannot help but worry for the thousands of officials, undertrials and convicts in our jails, who face the gravest risk of contracting the deadly Coronavirus. It would be most unfair for our decision makers, who enjoy the privilege of sanitized safety in their homes and offices, to not spare a thought for prisoners – especially those presumed innocent in the eyes of our legal system.

A viral pandemic like COVID-19 will most certainly spread like wildfire inside our poorly sequestered prison complexes. A prison official I spoke with shared his concern about isolation wards, terming them a logistical nightmare to setup and staff. He also mentioned Tihar’s massive HIV-positive population, comprising nearly 10% of its total strength. COVID-19 exposure to such immunocompromised inmates would most certainly prove fatal.

Considering this very real and likely threat to those incarcerated in our prisons, the government is duty bound to take steps to protect them.

Thankfully, this past Monday, a Bench of the Supreme Court led by Chief Justice SA Bobde directed all the States and Union Territories to consider releasing prisoners facing jail terms of up to seven years. This was a courageous step, considering the Court’s recent cases which suggest an aversion to protecting personal liberty in times of crisis.

While these measures might help the issue of overcrowding in our jails to an extent, the Court’s proposed solution still ignores those inmates who face the highest risk from COVID-19. This is because an offence-based criterion for granting release arbitrarily leaves out other undertrials who equally enjoy the presumption of innocence.

To be clear, no one disagrees that the Court ought to be circumspect about releasing inmates charged with violent offences, but it must also consider leniency towards older and medically vulnerable undertrials who are charged with non-violent offences. Why ignore them?

On the other hand, some have argued, rather speciously in my opinion, that jail inmates should be left where they are, as they are safest in their naturally occurring isolation. This view is not only insensitive but also dangerously inaccurate.

Just in the short span of the last week, thousands of new inmates have entered prisons across India, apart from prison officials who leave and enter the premises each day. Such entrants, together, pose the gravest risk of transmitting the deadly COVID-19 to the static prisoner population.

From a constitutional perspective, the Supreme Court has historically interpreted personal liberty to be closely intertwined with the right to life, guaranteed under Article 21. In Gudikanti Narasimhulu’s case, Justice Krishna Iyer equated the unjust denial of bail with the grossest violation of an individual’s right to personal liberty. He termed the liberty of an accused “fundamental.”

According to him, the deprivation of personal freedom, (if) “ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objects of society, specified in the Constitution.” To his dying day, Iyer remained a steadfast champion of personal liberty and wrote extensively about the negation of prisoner rights in India.

In a similar vein, Chief Justice YV Chandrachud, in his powerful opinion in Gurbaksh Singh Sibbia’s case, spoke for the Constitution Bench of the Court on the importance of bail. His judgment traced the history of personal liberty and he concluded that the grant of bail was the rule and its refusal the exception.

Even forty years ago, Justice Chandrachud understood, unlike a few in his shoes today, that the object of bail was to secure the attendance of the accused at trial and that withholding it as a means of punishment was an impermissible cruelty. Such punishment is only compounded in times like these.

With COVID-19 threatening us all, let us hope our judges spare a thought for those whose isolation is neither voluntary nor a safeguard to their health.

The author is an advocate practicing at the Supreme Court of India.