This article has been written by Gaurav Thote, an advocate practising at Mumbai City Civil and Sessions Court and Bombay High Court.
During the 1975 emergency, India witnessed its darkest phase as the Government decided to suspend rights of people including fundamental rights guaranteed under the Constitution. In the midst of the emergency, a five-judge-bench of the Apex Court in the legendary ADM Jabalpur case  (better known as Habeas Corpus Case, 1976) in a 4:1 ratio held that an order issued by the President under Article 359(1) would suspend the right of a person to move Court against Preventive Detention as his “Liberty” under Article 21 was not “absolute”. The said judgment was overruled in 2017 by a nine-judge-bench of the Apex Court  observing that life and personal liberty were recognized by the Constitution as inheriting in each individual as an intrinsic and inseparable part of the human element which dwells within.
The outbreak of COVID-19 has brought about an emergency-like-situation, leading the entire nation to reach a standstill. However, in this time of difficulty, the Supreme Court and High Courts have anxiously stepped in to ensure that adequate precautions are taken to ensure the safety of prisoners.
Constitution of High Power Committees
On March 23, 2020, the Supreme Court directed all the States/Union Territories to constitute High Power Committees to determine the class of prisoners that could be released on parole/interim bail for such period as may be thought appropriate, with a suggestion to consider release of convicted and/or undertrial prisoners, for offences punishable with imprisonment upto 7 years or less, with or without fine and in cases of convictions for lesser number of years than the maximum punishment. It was clarified that the Committee had discretion to decide the category of prisoners or individuals to be released, depending upon the nature of offence, number of years sentenced or severity of the charge and any other relevant factors which the Committee would consider appropriate.
The Supreme Court vide its order dated April 13, 2020, further clarified that the purpose of the earlier order was to ensure that the situation in prisons was assessed having regard to the outbreak of the present pandemic in the country and there was no direction/compulsion to the States/Union Territories to release the prisoners from their respective prisons.
Pursuantly, High Power Committees were constituted in various States to enforce the order of the Supreme Court.
The Rajasthan High Court vide its order dated 31 March 2020 directed the Court Registrar not to list bail applications and sentence suspensions as “extreme urgent matters” during the lockdown. On 3 April 2020, the Bombay High Court, observing the gravity of the situation, concurred with the view of Rajasthan High Court essentially directing Bail Applications to be listed after the lockdown. However, the order of the Rajasthan High Court was stayed by the Supreme Court on 3 April.
Constitution of High Power Committee in Maharashtra
A High Power Committee was constituted in Maharashtra on March 25, 2020 which arrived at a decision to release undertrial prisoners for offences punishable with imprisonment upto 7 years excluding offences under Special Acts like MCOC, PMLA, MPID, NDPS, UAPA etc. considering their nature along with other relevant factors. The Committee also stated that the Supreme Court was in seisin of the matter and said decisions/directions were subject to further orders of the Supreme Court.
On May 10, 2020, a report of the “Additional Director of Police & Inspector General of Prisons & Correctional Services” unfolded a serious situation to have arisen as prison inmates, officers and staff serving in some of the prisons in Maharashtra were infected by COVID-19 and there was a distinct possibility of such situation arising in other prisons too. A Committee Meeting was immediately convened and it was requested to accept the recommendations in the said Report for release of all undertrial prisoners charged for offences punishable for 7 years or more, except those falling in the following category of offences:
- Indian Penal Code
- Offences against State – Sections 121 to 130
- Section 303
- Sections 364(A), 366, 366(A), 366(B), 367 to 374
- Sections 376(a) to (e)
- Section 396
- Sections 489(a) to (e) modified to 489(a),(b) and (d)
- Bank Frauds and Major Financial Scams
- Special Acts
- MCOC, TADA, POTA, UAPA, PMLA, Explosive Substances Act, Anti Hijacking Act
- NDPS (Other than Personal Consumption)
- Foreigners in Prison
In the Second Committee Meeting, the data placed before the Committee revealed that there were 35,239 prisoners in the State of Maharashtra as against the prison capacity of 23,547 in 60 prisons of the State. It was further revealed that in pursuance of the Supreme Court’s order, 5105 prisoners were released and 3017 were in the process of being released. In view of the alarming situation, the High Power Committee issued directions to favourably consider release of all undertrial prisoners booked/charged for offences punishable with imprisonment for more than 7 years on interim bail, on a personal bond of such amount as may be determined for a period of 45 days or until the State Government withdraws the Notification under the Epidemic Diseases Act, 1897, whichever is earlier. Also, the Committee directed that the initial period of 45 days would stand extended periodically in blocks of 30 days each till such time the said Notification is issued. While concluding the meeting, it was highlighted that prisoners above the age of 60 or prisoners with underlying medical conditions would be more prone to the coronavirus and if they could not avail benefit of the above directions, the Authorities would have to take appropriate measures for their safety including their isolation. In addition, a decision to release about 50% prisoners out of the 35,239 prisoners was intimated.
On May 18, 2020 the High Power Committee clarified that Section 303 of IPC, albeit declared unconstitutional, was included as an exception as the accused were hardened repeat offenders.
Intervention of Courts
Despite its earlier order, the Bombay High Court took a step further, directing Courts to consider applications for bail notwithstanding the offences falling within exceptions enumerated in the decision of the High Power Committee.
On 19 May 2020, the Bombay High Court (Aurangabad Bench) in Criminal Writ Petition No. 7 of 2020 while perceiving that Courts were adjourning Bail Applications to be heard after lifting of lockdown, specifically observed that it was uncertain as to when the lockdown would come to an end and the right of an accused under Article 21 in the meantime could be not curtailed. While directing the sub-ordinate Court to hear the Bail Application, the Court held:
“3…..The lockdown is continuing and the period of around two months will be completed shortly and it is not certain as to whether and when the lockdown will come to an end.
- When Accused is behind bars, he has the right to an early trial of his case. The right to get early decision on his bail Application is also a part of right given under Article 21 of the Constitution of India. In view of the aforesaid circumstances, it cannot be said now that such a category of matters cannot be called as the matters needing urgent attention. This Court holds the Courts now need to decide all the proceedings as we have to live with Coronavirus and the working of the Courts cannot be stopped directly or indirectly.”
On the same day i.e. 19 May 2020, a Division Bench of the Bombay High Court  headed by the Chief Justice directed the Sessions Judge to consider the Bail plea of a person accused of offence under PMLA observing:
“We have no doubt in our mind that an administrative decision of the nature taken by the High Powered Committee for a specific purpose, i.e., to ensure decongestion in the Correctional Homes as a result of outbreak of the pandemic, can hardly be seen to have any debilitating effect on a judicial forum when it is approached by an accused under arrest to consider his prayer for bail on settled parameters. Needless to observe, despite the High Powered Committee by its decision not having conferred any benefit on him, the petitioner’s application for bail as of necessity has to be considered on its own merits without being influenced thereby.”
Article 21 and Default Bail
As regards the order of the Apex Court extending all limitations in general and special laws, High Courts of various states including High Courts in Uttarakhand, Madras and Kerala have held that the unfettered right of default bail would not come within the ambit of the Supreme Court’s order as denial of the same would infringe fundamental rights of accused under Article 21.
In view of the above, it is now open for prisoners to apply for parole/interim bail/default bail. Such applications would have to be decided harmoniously, in view of directions of the High Power Committees and Honourable Courts. It would suffice to say that the Supreme Court and High Courts have come to the rescue of prisoners in this time of crisis upholding the sanctity enshrined under Article 21 of the Constitution of India.
- 1976 (2) SCC 521
- 2017 AIR (SC) 4161
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