As Covid cases rise in jails, experts say health should have been primary criteria for interim bail

On 23 March, the Supreme Court had directed states to decongest prisons via interim bail but arbitrary exclusions and absolute discretion by committees have hindered the process.

Representational Image of a jail | Flickr

New Delhi: When the coronavirus pandemic first broke out in India, concerns were raised about the densely-packed jails in the country that could emerge as virus hotspots.

According to the 2019 India Justice report, the occupancy rate in Indian prisons stood at a whopping 114 per cent.

As a result, on 23 March, the Supreme Court directed states and union territories to set up high-powered committees to identify undertrials in prison, who could be released on parole or interim bail.

In compliance with the SC direction, these committees began identifying the section of prisoners that could potentially be released. In Delhi, the exercise began with undertrials accused of offences with a penalty of less than 7 years, but now it includes even murder accused.

However, three months down the line, jails continue to be highly populated and several of them are now emerging as Covid-19 hotspots. For instance, 23 inmates and 45 prison officials have tested positive in Delhi’s Tihar jail. The number is much higher in other prison complexes.

According to the legal experts ThePrint spoke to, in addition to the severity of the offences, health and age should have been considered as the primary criteria for bail, given that those with comorbidities are more susceptible to the virus.

Furthermore, the arbitrary exclusion of certain undertrials such as those who were booked under the Unlawful Activities (Prevention) Act, those who had committed economic crimes, and those who are foreign nationals — also appeared illogical to certain lawyers.

Eligibility criteria for undertrials

The committee in Delhi, in its first meeting on 28 March, allowed interim bail for undertrial prisoners in certain categories — those facing trial in a case which has a maximum punishment of 7 years or less.

This was the first time the exceptions were also laid down. It said that interim bail would not be granted to those accused under Narcotics Drugs and Psychotropic Substances Act, Section 4 (penetrative sexual assault) of the POCSO Act, Indian Penal Code’s (IPC) rape offences, acid attack accused, those booked under the Prevention of Corruption Act, Prevention of Money Laundering Act, and Unlawful Activities (Prevention) Act, and other cases being investigated by the CBI, ED or NIA. It also excluded foreign nationals.

Over the next three months, the eligibility criteria of interim bail was relaxed to include more categories of prisoners but the list of those excluded from consideration remained unchanged.

The committee allowed release of prisoners suffering from HIV, cancer, chronic kidney dysfunction, hepatitis B or C, Asthma and TB.

As for crimes, it also included those accused for murder, culpable homicide, attempt to murder, attempt to commit culpable homicide, Section 498A (husband or relative subjecting a woman to cruelty) and 304B (dowry death) of the IPC.

‘We too are humans’

Sources from the Tihar jail told ThePrint that female foreign national inmates have since protested inside the jail premises against the criteria.

In April, 54 of them had also written to the committee, albeit without any positive outcome, alleging discrimination against them after the parole and interim bail norms for Indian prisoners were relaxed in the wake of Covid-19 outbreak.

The representation, made through Advocate Ajay Verma, said, “We humbly pray that at this crucial time we should not be discriminated against. The benefit of parole/interim bail/remission may be extended to all of us. We too are humans and are at risk of contracting COVID-19”.

More recently, Advocates Abhinav Mukerji and Neoma Vasdev made a representation before the committee, on behalf of their client, former Fortis promoter Malvinder Mohan Singh who is lodged in Tihar jail and has been charged under the Prevention of Money Laundering Act, 2002.

In their representation on 22 May, they drew attention to Singh’s medical conditions that included Ischemia anterolateral (a medical condition causing reduced blood supply to the heart), fluctuating blood pressure and blood sugar complications.

They also asserted that the criteria laid down by the committee “does not seem to be based on any ‘reasonable differentia’, since the basis for such categorization being the nature of the offence (as adopted by the Committee) seems to have been diluted by it inasmuch as even UTPs (under trial prisoners) accused of murder or attempt to murder etc. (carrying higher punishment), are now considered eligible for ‘interim bail’.”

Their appeal was, however, rejected on 2 June.

While rejecting the representation, the committee emphasised on its “absolute discretion to determine which class/category of the prisoners can be released on interim bail or parole depending not only upon the severity of the offence, but also the nature of offence or any other relevant factor”.

Furthermore, according to sources, in its meeting on 20 June, the committee asserted that no prisoners “can seek or claim to be released from prison as a matter of right”.

It explained that it has “taken into account the overall holding capacity of Delhi Prisons, existing strength on the dates of the Meetings and also the nature of offences for which the prisoners were lodged in jails”.

The decision to exclude certain prisoners, it said, was “taken only after considering the relevant factors and on the basis of objective satisfaction”.

‘Medical rationale’ missing, say experts

However, experts feel that the classification made by the committee shouldn’t have been based just on the offences committed but also on other factors that may make certain prisoners more susceptible to Covid-19.

In a joint statement to ThePrint, Mukerji and Vasdev said that the classification should have been on a “medical rationale”, prioritising immuno-compromised people.

As for the exclusion of those accused of economic crimes, they asserted that this did not make for a “rational classification” when the committee has relaxed its criteria to even allow those accused of murder to be considered for release.

“The principle should only have been whether a prisoner is at a medical risk… They are the people who should’ve been released first,” they said.

According to Senior Advocate Vibha Datta Makhija, the nature of offence and the penalty attached to it have always been considered the primary criteria for bail, aside from health and good conduct.

She, however, asserted that in the current situation, health should have been the primary criteria, rather than the nature of offence.

“In the present condition, the very objective of the Supreme Court’s order is decongestion of prisons, in view of the pandemic. So the criteria laid down by the high powered committees must have a nexus to that. This should be the primary criteria and the nature of offences should be the secondary criteria,” she said.

However, she added that both these factors need to be considered.

More effort was needed on bail guidelines

Supreme Court Advocate Anas Tanwir also feels the guidelines are not comprehensive.

“They should have been more comprehensive, given the challenges we are facing… Just the offences and the age should not have been the criteria. A little more effort should’ve been put,” he told ThePrint.

He pointed out that in the criminal justice system, categorisation usually happens on the basis of the offence committed.

“The whole idea is to protect the public from the violators of the law. So to keep those who have committed offences that are heinous becomes necessary… However, they definitely should’ve taken age and comorbidities into consideration,” he said.

Tanwir also pointed out the failure to consider mental health as a criteria.