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Sunday, July 03, 2022

Mass jailing of undertrials must end

The issue needs public health & gender sensitive approach, as overcrowded prisons have felt devastating impact of the Omicron variant

Written by Pratiksha Baxi |
Updated: February 14, 2022 9:37:14 am
The prison statistics of 2020 show that more than 70 per cent of such undertrial prisoners are from marginalised classes, castes, religions and genders. (Representational)

During the pandemic, the mass incarceration of undertrials led to a humanitarian crisis in overcrowded prisons. Prison officials struggled to prevent mass contagion among inmates and staff, even as thousands fell ill and many died. Prisons instituted their own lockdown rules by quarantining “fresh” admissions, creating quarantine zones, suspending jail manuals and prohibiting visitors. There is no lockdown on the entry of more undertrial prisoners while their rate of exit from prisons has decreased since the onset of the pandemic.

Today, the devastating impact of the highly contagious Omicron variant in prisons is normalised by invoking lockdown curbs. Prisons have not completed vaccination programmes and conditions have worsened as occupancy rates increase. Court visits are suspended. Lawyers cannot visit their clients in person. Prison visits have stopped, even if families and visitors are vaccinated and follow Covid-appropriate behaviour.

Experts tell us that the main reason for “overcrowding” in our prisons is due to the mass incarceration of pre-trial prisoners. The penal policy of the state has not focussed on de-criminalisation. Instead, it has resulted in a shocking 31.8 per cent increase in the incarceration of the number of undertrial prisoners and increase in imprisonment of detenues by 40.1 per cent from 2015 to 2020 (as of December 31, 2020). Jail is the rule rather than the exception. The prison statistics of 2020 show that more than 70 per cent of such undertrial prisoners are from marginalised classes, castes, religions and genders.

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In 2020, as the national lockdown was announced, the Supreme Court of India issued directions to set up high-powered committees (HPCs) in each state to decongest prisons. In Contagion of Covid-19 Virus in Prisons, the Supreme Court of India held that “the requirement of de­congestion is a matter concerning health and right to life of both the prison inmates and the police personnel working”. However, most HPCs did not adopt classification based on the right to life or health nor were these gender-sensitive.

Most HPCs treated decongestion as an administrative issue. One might even argue that the HPC classification adversely impacted bail outcomes and reduced the categories of release adopted by the barely functional undertrial review committees. The 2020 Prison Statistics report supports this analysis in two ways. First, it reveals that as compared to 2019, “the release of convicts has declined by 41.2 per cent and the release of undertrials has declined by 19.6 per cent” in 2020. Second, as compared to 2019, the number of undertrial prisoners increased by 11.7 per cent and the number of detenues increased by 11.4 per cent in 2020.

The pandemic saw the creation of new dockets which were mainly related to violations of “lockdown law” under section 188 of the IPC (disobedience to order duly promulgated by public servant). In 2019, there were 29,469 cases registered under this section. In 2020, this increased to a staggering 6,12,179 cases. Other laws were also used, including local laws, leading to 16,43,690 more cases being registered in 2020 as compared to 2019. No amnesty has been announced for these offences nor has the misuse of the “epidemic laws” seen judicial review.

As prisons instituted a lockdown on public accountability, the rates of custodial deaths have increased by 7.0 per cent in 2020. So-called unnatural deaths, which include suicides, accidents, and murders in prisons, increased by 18.1 per cent. There is no information on why 56 inmates died in 2020. These figures prove that the lockdown rules in prisons increase custodial violence and disease. These lockdown rules unfortunately are now normalised by the fiction that the HPCs will decongest and oversee the pandemic-induced crisis. Public interest appeals to the committees to adopt a public health and gender-sensitive classification to decongest the most overcrowded prisons in the country were rejected.

Take the example of the approach to incarcerating pregnant women in prisons. In May 2021, the Delhi HPC directed that pregnant undertrials or mothers with children will be released on interim bail for three months. While releasing pregnant women for three months, the HPC did not factor in which trimester each woman was in. If a woman was in labour or delivered a baby three months later, she was expected to surrender or go to court.

Pregnant undertrials who fell into the HPC’s exclusion clause, such as foreign national prisoners, were not released. Even though most foreign national prisoners are from the global south, the exclusion clause is not seen as a racist classification. The disaster law was not applied to prohibit such racial discrimination between different classes of pregnant women. Nor did the courts rule unequivocally that custodial childbirth and incarcerated pregnancy is a specific form of cruel and inhuman punishment that is inflicted on women in prisons. Or honour the UN’s Bangkok Rules which state that “non-custodial means should be preferred for pregnant women during the pre-trial phase”.

Surely it is high time that governments and courts adopt a public health and gender-sensitive approach to the question of mass incarceration of undertrial prisoners. The participation of prison watchdogs in bringing accountability to these dark custodial spaces must be restored. The decline in the rate of release of undertrials from prison and the increase in custodial deaths must be named as a humanitarian crisis. And the bureaucratic approach of the HPCs should be reviewed.

Courts must privilege prisoners’ experiences of “lockdown” prisons rather than pay lip service to dead letter reform. It is time to end the law’s attachment to inflicting cruel, inhuman and degrading punishment on pre-trial prisoners. The mass incarceration of pre-trial prisoners must be abolished. Surely institutionalised indifference to the cruel and inhuman conditions of custody must be abhorrent to any society.

(The writer is a sociologist based in Delhi. She has authored Public Secrets of Law: Rape Trials in India)

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