During the hearing of the suo motu case on the rise in COVID-19 cases in Maharashtra prisons, the State government today submitted to the Bombay High Court certain measures to decongest jails.
Advocate General Ashutosh Kumbhakoni informed the Court that even though the jail authorities were taking appropriate steps towards implementation of the decision of the High Power Committee (HPC) constituted as per the March 2020 order of the Supreme Court, “for reasons and grounds beyond the control of prison authorities”, inmates were infected with COVID-19.
“This is principally because various lower Courts throughout the State have been refusing to release prisoners on bail, temporary bail, etc. in view of the facts and circumstances of the respective cases,” says the State’s affidavit.
The AG submitted that to prevent and control the spread of the virus inside prisons, drives have been undertaken to vaccinate prisoners and staff members. However, as the Central government guidelines currently allow vaccination only for those above the age of 45 years, only such prisoners were being vaccinated.
Considering the rise of cases, the State made the following suggestions as measures to decongest jails.
At the outset, the State suggested that the exercise of releasing prisoners from time to time based on the guidelines issued by the HPC have to be undertaken. This will result in decongestion of prisons “at least to a sizeable extent”, the affidavit states.
To permanently increase the capacity of prisons, the authorities had been submitting proposals from time to time urging the State to create new prisons.
The AG informed the Bench led by Chief Justice Dipankar Datta that six such proposals were actively being considered by the concerned authorities. He suggested that appropriate directions could be given to them for speedy consideration of the same.
Another measure resorted to was lodging prisoners in “temporary prisons” created by converting educational institutions into prisons.
During the previous outbreak, it was submitted, there were 36 such prisons which had to be given back once the institutions reopened for educational activities. With the present outbreak, the prison authorities have commenced reclaiming of the institutions to convert them into temporary prisons. So far, the State has reclaimed 14 such institutions.
“In case the spread of the virus continues with the intensity it is presently continuing, in all probabilities, the institutions will stop conducting their activities and such premises will be available again,” the AG submitted.
He added that 22 such requests were pending at the level of District Collectors and requested the Bench to pass an order to expedite the consideration.
An important suggestion by the State was that no prisoner ought to be freshly admitted in any prison unless and until his RT-PCR test is reported negative.
However, the prison authorities faced difficulties in this regard, as once an undertrial prisoner is ordered to be taken into judicial custody, he has to be transferred from police custody immediately. RT-PCR tests take at least 24 hours to yield results.
It was suggested that prisoners ought to be allowed to continue in police custody till the results come.
CJ Datta at this point suggested that the arrested person can be tested even before he is produced before the magistrate for the first time. “Because there is chance of that spreading amongst the police personnel,” he added.
The final suggestion by the State was that a direction may be issued by the Court to obviate the need for physical presence of undertrial prisoners and to permit their presence only through video-conferencing facility.
AG Kumbhakoni argued that despite having provisions for video conference facilities, some lower courts as also certain accused persons insisted for personal production before courts.
He reasoned that accused persons request to come to court for fresh air, to meet friends, family, eat home cooked food.
While agreeing to this, the Court enquired about the frequency with which inmates were allowed to communicate through telephone or video conference calls. When it was informed that so far it was once a week, the Court asked the prison authorities to consider if they could increase the frequency to twice a week.
Regarding the transfer of prisoners from one jail to another, the AG informed the Court that prison authorities had been insisting on obtaining an order from the concerned magistrate.
Hence, it was suggested that in order to have an equitable distribution of prisoners amongst various prisons so as to decongest certain prisons, the Court could clarify in its order that such permission is not a pre-requisite.
Senior Advocate Mihir Desai, appearing for an NGO which sought intervention in the matter, submitted to the Court that in light of the fact that the HPC had passed guidelines last year, it could again reconvene and consider the guidelines afresh.
He also sought for a review of bail applications where bail was not granted previously but may be granted now, with a view to decongesting prisons.
In response to this, CJ Datta said that if courts hearing bail matters are informed of the “change in circumstances” from the previous hearing to the present, then the same will be reconsidered.
CJ Datta directed the State to serve a soft copy of this affidavit to Desai so that he can consider the measures and inform the Bench as to what issues the HPC should consider.