Social security is always considered to be a boon for any society. This
security is guarded by various pillars like police, law enforcement and prisons.
Recently we have witnessed a huge change in our prison policy due to the
pandemic. In this article we shall begin with gathering all the information
related to this issue and then conclude it by stating an analysis of the
The Rajasthan High Court bench comprising of Chief Justice Indrajit Mahanty
and Justice Ashok Kumar Gaur passed certain directions as follows:
- The State Government was directed the State Government to get the
accused persons tested by local medical authorities for corona virus and to
remand them to police custody only if found negative.
- After this test, the accused spends 21 days in isolation ward. It was
also directed that before releasing the accused persons from isolation, they
must be again checked up to verify whether they have developed any symptoms
or not. Consequently, they shall be shifted to general ward.
- The same process of checking shall also apply to the jail authorities
who had come in direct contact with the accused persons.
- Proper steps for sanitization of the isolation wards must be carried out
as per the suggestions of the medical officers.
- Jail doctors must be made available for checking the prisoners on a
In addition to this, the Supreme Court also directed all the states and union
territories to set up high level committees to ascertain a certain class of
prisoners who could be released on parole for four to six weeks. The class
ascertained was that consisting of prisoners serving a term for less than seven
years and undertrial prisoners. The sole intention behind this was to prevent
over-crowding of prisons. If we look at it from the current-situation
perspective, the decision of releasing the prisoners seems quite reasonable.
However, there are certain flaws which were required to be thought of before
making such a decision.
The prisoners are left to face a lot of vulnerable instances outside where the
society recognizes them as criminals and shall not let go of any opportunity to
make these prisoners feel depressed. It is a mental torture to leave a prisoner
among people who despise his existence.
Thinking from the other side, it also creates a difficult situation for the
victims as they shall not find it a comfortable environment for themselves when
the accused is back from the prison for reasons whatsoever.
Releasing of dangerous criminals is a threat to public safety as well. It is an
accepted fact that a pandemic is a huge issue but, this should not make us
forget the fact that these people are kept behind the bars for a certain reason.
This manner of releasing the prisoners shows a clear violation of the criminal
In compliance of the directives of NALSA, SLSAs have initiated mechanisms to
achieve the target of “social distancing in Prisons” by taking various measures
with the ultimate object of reducing over-crowding in jails. According to the
“SLSAs have actively assisted High Powered Committees identify and complete the
necessary formalities for the release of prisoners, both undertrials and
convicts, during the pandemic. In pursuance of the recommendations of such
Committees, a release of 42,529 undertrial prisoners as well as 16,391 convicts
on parole, etc. has been secured with the assistance of the Legal Services
Apart from the above, 243 undertrial prisoners have also been granted statutory
bail under Section 436A of CrPC. Moreover, legal representation has also been
provided to 9,558 persons at the remand stage in different States and Union
Territories across the country.”
Taking the above informative data into consideration, it is very sad to say that
we are going through such a phase that we are unable to find a corrective
measure which is actually helpful in all aspects. Indian jails are in a very bad
state and our practical implementation of jail reforms are always pending.
Had these reforms been practically implemented a long time back, this problem of
over-crowding wouldn’t have come up in the first place. When the increasing rate
of crimes is a known issue to every second citizen of this country, there is no
other way to make it more obvious that there will be more criminals as well.
Considering this, there should have been more cells built already.
Our Government has cared enough to give us a 597 feet Statue of Unity in four
years and the same Government could have also successfully implemented the
prison reforms. The problem lies in escalating the right issues and taking up
things systematically. Now the problem has escalated so much that the society is
undergoing a threat of a pandemic and also of released criminals.
On a related note, it is also interesting to note a strange paradox in the
approach. Amid the lockdown when Courts are barely functioning ( only for most
urgent cases), law enforcement agencies have adopted a mechanical approach of
arresting people knowing very well that with limited functioning of courts, the
accused persons’ right to approach courts for bail is very limited. Recent
handling of Delhi Police in context of arrests being made for FIRs lodged for
anti CAA protests and in Delhi riots matter has also been criticized heavily.
Arresting of students and protesters at this juncture who are no threat to
society has raised serous questions. While Courts have enlarged many persons,
who are accused in the connected FIRs, on bail yet, many people who are arrested
are not able to exhaust their legal remedies due to restrictions imposed by
national lockdown. The question is not entirely legal, and it has its own share
of political tone and tenor.
- Dr Farrukh Khan, Advocate is an Advocate and Managing Partner of Law
Firm- Diwan Advocates. &
- Somya Mishra, Advocate is an Advocate, working with Diwan Advocates