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Maharashtra jails, hospitals: Iron curtain on Covid-19 'violates' right to life, says PUCL

Counterview Desk

In first of the “Lockdown on Civil Liberties” series, the People’s Union for Civil Liberties (PUCL), has pointed towards how many of the convicted prisoners in Maharashtra whose parole is depended on the prison authorities managed to get paroled as some of the prison authorities were keen to remove congestion amidst Covid-19 onslaught. However, undertrials, many them human rights activists and scholars, charged under the Unlawful Activities (Prevention) Act (UAPA), failed to get bail even on pure humanitarian grounds.
Authored by senior advocate Mihir Desai, the report, running into 198 pages, says, “Several political prisoners charged under special laws like UAPA are facing incarceration in spite of flimsy evidence and charges under these laws have led to indefinite incarceration without any conviction, whereby the process itself is the punishment.”

Excerpts:

Maharashtra has totally 60 prisons. As on March 31, 2020 the total capacity of these prisons was 24,032 while the total number of prisoners were 36,061- thus 150% of the capacity. Out of these 9169 (25%) were convicts and 26,762 (75%) were undertrials. 
According to a statement given by the State government in the High Court, taking into account social distancing norms required to be maintained the prison population should be reduced to 16,000. It was therefore important to release approximately 20,000 prisoners to make social distancing possible.
On March 16, 2020 the prison and state authorities held a video conferencing meeting and they decided that in order to decongest prisons, courts should be approached and requested to grant bail/ provisional bail in matters involving minor crimes and personal interviews with family members and lawyers should be stopped for 15 days.
The State government constituted a High Powered Committee (HPC) presided over by a senior sitting judge of the Bombay High Court. The Committee met for the first time on 25 th March, 2020. It recommended that
  1. Undertrial prisoners who would face maximum punishment of less than 7 years or less be released on interim bail on personal bond for 45 days and after that on blocks of 30 days till such time as the notification under Epidemic Diseases Act continues;
  2. Convicted prisoners who have been sentenced to 7 years or less be considered for emergency parole on similar basis by the prison authorities; 
  3. Those convicted for more than 7 years could be released only on similar emergency parole provided on the earlier occasions when they were granted parole or furlough they had surrendered on time; 
  4. The authorities were to take into account the seriousness of the crime while granting release; 
  5. Those charged with or convicted of serious economic offences/ bank scams or charged under certain special laws like Prevention of Money Laundering Act (PMLA), The Maharashtra Control of Organised Crime Act (MCOCA), UAPA were not be extended this benefit;
  6. The release was to be effected within seven days of the prisoner making the application; 
Advocate SB Talekar made a representation challenging the discrimination concerning interim bail and parole to those charged under special laws like UAPA. The High Court took it up and finally observed that this was for the HPC to decide. HPC took up this issue on May 11, 2020 and rejected the contention and thus those charged under UAPA, etc. continued to be excluded.
Decongestion should have been based, apart from other things, on age, disabilities, comorbidities, sex and general health conditions. This would be especially true for undertrials, who are yet to be held guilty of any offences. In any event, in a separate order passed by the HPC on May 11, 2020, between March 25, 2020 and May 10, 2020, 5,105 prisoners were released and 3,017 were in the process of being released.
HPC observed that even undertrial prisoners charged with offences having sentence of more than seven years would be released on personal bonds in the manner which convicts were to be released. HPC felt that with this change the number of prisoners who could be additionally released would be 9520, thereby totaling the released prisoners to 17,642 leaving 17,597 prisoners inside the 60 prisons decongesting them.
In all likelihood, many of the convicted prisoners whose parole depended on the prison authorities managed to get paroled as some of the prison authorities were keen to remove congestion. But those who were undertrials had to apply to courts to get temporary bails and many of these bail applications, rather than being decided on pure humanitarian grounds in the Covid situation were decided on merits and rejected. 
The end result was that on June 19, 2020 the prison population in the 60 prisons was 28,950, much higher than the normal capacity , and far too much higher than the 16,000 capacity needed for social distancing.
The High Court passed its judgment on various aspects of prison conditions on July 2, 2020. Various petitions, including one filed by PUCL, were decided. As regards decongestion the Court however refused to interfere. Essentially the High Court held that since HPC was constituted by the Supreme Court and HPC was at full liberty to decide inclusions and exclusions for parole and temporary bail.
This was a completely erroneous approach by the High Court. While the Supreme Court had directed HPCs to be set up and determine the persons who should be released, this did not denude the High Courts from exercising their jurisdiction under Article 226 of the Constitution to examine the decisions of HPC.
Besides, this was a gross case of violation of Article 21 of the Constitution of India wherein large number of prisoners were at the risk of being infected. It was a question of right to life and it is not open to the High Court to say that we will not intervene when the right to life is at stake.
Arthur Road jail
Subsequently another petition was filed, this time by National Alliance of Peoples Movements (NAPM) and Medha Patkar challenging the discriminatory treatment by HPC concerning not allowing the release of prisoners charged under special laws like UAPA, Narcotic Drugs and Psychotropic Substances (NDPS) Act, MCOCA, etc. This petition was also dismissed by the High Court holding that there was nothing unreasonable or arbitrary about not releasing such persons. 
We believe that it is important for HPC to immediately ensure decongestion of prisons by not making distinction on the basis of offences charged with especially for those prisoners above 60 years. Even for those below 60 years if the prisoners are suffering from comorbidity they should be released on temporary bail.
Varavara Rao's relatives are not allowed to see him. Neither the hospital nor the jail authorities are giving updates of his health to relatives
Convicts are granted parole while undertrials are granted bail -- temporary or otherwise. When offence against a person is not yet proved distinction based on offence is totally unjustified. Several political prisoners charged under Special Laws like UAPA, are facing incarceration in spite of flimsy evidence and charges under these laws have led to indefinite incarceration without any conviction, whereby the process itself is the punishment.

Spread of Covid in prisons

On May 10, 2020 it was reported that in Arthur Road prison in Mumbai, out of 270 persons tested 77 inmates and 26 staff members were tested positive. Arthur Road prison has the capacity of 804 prisoners but it had 2,800 prisoners. This led to a plethora of public interest litigations being filed in Bombay High Court, including one by PUCL which has been referred to above.
It was pointed out that the relatives do not even know as to who was tested positive and who was tested negative. Status report was sought from the State government by the court. The court also directed the prison authorities to inform the relatives about those who were tested positive.
Towards the end of May a report was filed by the government. This report disclosed that nearly 179 persons across six prisons had been tested positive with as many as 158 from Arthur Road. What was more important was the revelation in the report that four prisoners in different prisons had died and it was after their death that they were detected Covid positive.
Soon the infection also spread to other prisons. On June 4, it was reported that 60 persons including eight staff members had been found positive in Solapur prison. On June 6, it was reported that 29 prisoners in Aurangabad were found to be positive June another report was filed which showed that in 11 prisons 17,695 persons were screened, swab testing was done for 1681 prisoners out of whom 269 were detected positive.
All this information came out not voluntarily by the state or prison authorities but through media information and later on through status reports directed by the Court. The cases were disposed of on July 2, 2020 and now there is no official manner of knowing how many prisoners are tested and how many are positive.
The website of prisons is very sketchy and does not deal with Covid affected persons. On July 10 it was reported that 596 inmates and 167 prison staff have tested positive for the coronavirus disease across the state till date. 
It was also reported that the Nagpur Central Prison is the worst hit, with more than 200 inmates and 57 prison staff infected with the virus. Many prison staff anonymously reported that there was large scale under reporting of Covid positive cases from prisons.
One of the major issues in these cases concern testing. While during the hearings the state authorities agreed to ensure that every prisoner would be daily subjected to thermal temperature testing , this is hardly effective. What is necessary is the swab test. It became necessary to do the swab test of all prisoners in contact with those who are positive.
But initially the jail authorities insisted on doing swab tests only of those who were symptomatic. During the hearing of the cases it said that it would do swab test of asymptomatic prisoners if they were “high risk” prisoners. 
High risk meaning those asymptomatic persons who are in contact with positive persons for at least 15 minutes within a range of three feet. This is highly unsatisfactory definition at least for prisons. However, the court in its judgment accepted it and further said that any persons developing symptoms within prisons should be tested.
Varavara Rao
The paucity of testing is also reflected by the fact that Varavara Rao, the famous poet who has been incarcerated since nearly two years under UAPA was found to be positive only when he was taken out of the jail to a government hospital for treatment concerning other ailments.
For two co-prisoners incarcerated in the same case who were in close contact with Varavara Rao, noted academic Anand Teltumbde and activist Mahesh Raut, obtaining credible test reports from the prison authorities has itself posed a challenge. 
The Covid test of the latter who had been suffering fever for 4-5 consecutive days had been declared to be negative, even as discrepancies have been found in medical reports submitted before the Bombay High Court, which has consequently sought an explanation from the Taloja Prison officials.
The case of Varavara Rao, who was in Taloja jail, is illustrative. He was in Taloja prison and is 80 years old with comorbidities. He was initially shifted to the jail hospital due to ailments and was then taken to JJ Hospital Mumbai due to complications. His bail application was pending. 
In spite of his bad health he was rushed back to the jail hospital within three days and on one occasion when he was allowed telephonic conversation with relatives he seemed totally delirious and extremely unwell.
Due to his stature in society as an extremely popular poet and dissenter this became a big issue and he was again rushed back to JJ Hospital. In the hospital he suffered head injury and he was also detected with Covid. Pursuant to being shifted to a private (Covid) hospital following a directive issued by the National Human Rights Commission (NHRC), the family was denied updates of his health until the Bombay High Court on July 28 permitted the family to meet him via video-conferencing.
However, since then, his relatives are not allowed to see him; neither the hospital nor the jail authorities are giving any updates of his health to his relatives. Only when the court asked have his reports been now filed in court, but are yet to be shown to the relatives. The iron curtain around the jails and hospitals is preventing anyone from knowing what is the true picture.

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