A Crisis in the Making: From De-congestion to Re-Congestion in Prisons

March 16, 2021, marks the first anniversary of the Supreme Court acknowledging that overcrowding of prisons can lead to devastating consequences for prisoners amidst the raging pandemic. Ironically, this year, the Supreme court is choosing to ignore the continuing risks, by stepping back from the positive measures it took last year to decongest prisons. In its March 1, 2021 order, it has decided to unwind the clock and recall all the temporarily released prisoners back to prison as it is felt that ‘situation is improving’.

In its March 16, 2020 order in In Re: Contagion of COVID-19 Virus in Prisons, Supreme Court underlined the urgency involved in taking adequate steps to prevent the spread of the virus in prisons and initiated steps by the constitution of the High-Powered Committees (HPCs) in each state to recommend releases on interim bail/ parole or furlough aimed at reducing overcrowding.

CHRI in its December 2020 report documented that this step led to an overall 10.42 percent reduction in prison population between March and June 2020. Further, the report states that in spite of this prisons in 27 percent of states and UTs remained overcrowded. Till the end of 2020, instances of more than 18,000 prisoners and prison personnel contracting the virus was documented and 17 succumbed to death.

In light of the Supreme Court directions, the High Court of Delhi on its own motion passed an order extending all interim orders (of bail, stay of directions to surrender & paroles) that were granted till the day the Supreme Court had passed the aforementioned order, till May 15, 2020 or until further orders. In subsequent listings over the next few months, these orders were extended till October 31, 2020.

Meanwhile, the Delhi High Court sought a status report which was filed on October 15, 2020, detailing categories of prisoners released. On October 20, 2020, the earlier order of was modified: It was directed that 2,318 undertrials who were granted bail by District Courts were to surrender in a phased manner with the liberty to approach an appropriate forum to extend bail on the merits of each case.

Additionally, it requested HPCs to decide on the extension of release for 2,907 prisoners within 10 days. And lastly, the Court directed for the surrender of 356 prisoners granted bail by the High Court by the November 13, 2020.

Aggrieved, the National Forum for Prison Reforms (NFPR) approached the Supreme Court and on October 29, 2020, an interim stay was granted on the directions on surrender of prisoners. However, on March 1, 2021, the Supreme Court opined that in view of the ‘improving situation’, 2,318 undertrials and 356 prisoners have to surrender within 15 days. The real question is whether the situation has really improved?

As per the National Crime Records Bureau’s Prison Statistics of India 2019, Delhi Prisons were the most overcrowded prison in the country at 174.9 percent occupancy.

On December 31, 2020, the prison population stood at 15,995 with an occupancy rate of 159.6 percent, though indicating a sharp reduction of over 15 percent - but nevertheless continuing to remain overcrowded.

As on March 3, 2021, the prison population increased to 18,121, thereby translating to an occupancy rate of 180.7 percent, higher than that of 2019. This means that with the surrender of further 2,674 prisoners, the population would swell to 20,795 or even higher if new admissions are to be included - culminating into more than 200 percent occupancy. This greatly undermines the ability of prisons to implement appropriate safeguards to thwart the virus gaining stronghold.

The refusal to extend bail by the Supreme Court is particularly problematic on many counts. Firstly, the latest (and fifth in the series) serological survey in January in Delhi suggests only 56.13 percent of those covered by the survey have developed antibodies against COVID-19. Additionally, at the end of February, Delhi has reported a 46 percent increase of cases than the previous week against a 19 percent overall increase for the country.

With more cases of COVID-19 being reported, nuanced and preventive steps need to be taken to counter any chance of contraction and spread within prisons. Coupled with newer strains being discovered and current overcrowding rates, any increase in the population could truly make prisons becoming petri-dishes for an epidemic.

Secondly, the COVID-19 Immunization Protocol for India by the Government of India which swung into action on January 16, 2021, in its first phase did not categorize persons in custody as a vulnerable category. Even in the second phase (currently underway amid reports of states experiencing a second wave of the pandemic), the protocol does not recognize persons in custody as vulnerable category to be vaccinated irrespective of age. With no policies being issued to vaccinate prisoners, one can predict a near future rise in infections inside prisons.

Thirdly, the Supreme Court order could translate as this would be a cue for other Courts to pass orders for prisoners to return to prison which can be detrimental to the efforts of stepping up against the virus.

Lastly, in the near absence of directions for continued testing and segregation of prisoners before admission, the order for refusing to extend interim bail and thereby directing surrender may reverse any positive achievements made over the past year to keep the virus at bay in prisons.

Overcrowding is an endemic crisis of its own and instead of thwarting its own earlier efforts by allowing re-congestion, the Supreme Court should understand the long-term benefits of reducing overcrowding.

The author is Amrita Paul, a Senior Programme Officer with the Prison Reforms Programme, Commonwealth Human Rights Initiative (CHRI). Views are personal.