This article is written by Niharika Agrawal, pursuing B.B.A.L.L.B from IFIM Law School. This article deals with the rights of the prisoner during Covid-19 and its comparative study between India and other nations.
Covid-19 was a great challenge for the entire world. Millions of people were affected by the Covid-19 pandemic either financially or medically. Everywhere there was a risk on each individual of getting infected. However, the most affected people were prisoners, as they stay in one common space that is prison.
The detention facilities which were provided were not always efficient. Poor nutrition, lack of hygiene and cleanliness facilities, most dangerous ‘overcrowding’, inadequate medical facilities, etc were some of the factors affecting prisoners’ health. Thus it can be concluded that the prisoner’s life was at utmost risk and this has led to the worst form of violation of human rights during this pandemic.
It is not just India that has faced this pandemic situation but also the entire world. This article leads to the comparative study of the measures taken by India and the other countries for the rights of the prisoner in this tough period of the Covid-19.
Measures that were taken in the prison
Various measures were taken by the government to protect the prisoners from being infected. But unfortunately, it was not always adequate. Detention centres being a common overcrowded place, it was difficult to manage under this whole situation. Regardless of this, some basic following measures were taken by the detention centres. Such measures were undertaken as per the laws of the states.
Decongestion of prison
As per the orders of the Supreme Court, prisons were released on emergency parole and on interim bail to decongest the prisons. This was done to reduce the population of the prison for Covid-19. But this measure was not effective due to delay in the processing of the court orders in decongestion of the prison.
Isolation of new prisoners
New prisoners were isolated so that there is no transmission of infection from outside. However, due to a lack of sanitization and care facilities, it was difficult to maintain a healthy environment. As per the undertrial prisoners though the positive inmates were staying separate, however, such separation was absent during the meals.
Formation of new Covid-19 care centres
There were establishments of covid centers at many detention centers in the states and such centres also needed medical professionals to take care of the patients or inmates. It was also suggested to have a daily screening of the prisoners and periodic health checks.
Establishment of new prisons for increasing capacity
On the orders of the Bombay High Court, it was suggested to build new prisons for the inmates to increase the capacity and to overcome the problem of excessive population. It was important to remove overcrowdedness as it was one crucial solution to deal with this situation.
Vaccination of prisoners
Vaccines were also provided in the prisons for the prisoners so that they can receive their vaccination jab on time. But as per the reports till now many prisoners are yet to be vaccinated in many states moreover due to the unavailability of vaccines there might be further delay in the process of immunization.
Hygiene and cleanliness
Another important task was maintaining complete hygiene and cleanliness in the prisons. The prisoners were provided with separate soap, masks, etc. they were often advised to wash their hands and were also encouraged to not sleep facing each other.
Prisoners were made aware of the infection, its implications and its impacts. Safety measures and the guidelines by the government were well explained. Various posters and videos were displayed and also awareness programs were conducted.
Such measures were taken by the states to protect the prisoners from this virus. However, due to the unavailability of the facilities, it was not worth up to the expectations. It is very important to have permanent medical services to prevent such a tragedy in the future.
Human rights violations
The prisoners are though deprived of their basic right to liberty for the fact being they are the prisoners but cannot be restricted to practice their other human rights. As per the reports of Amnesty International, it was stated that the measures taken by the government are not sufficient for the prevention of the spread of the virus, and this in itself is a violation of human rights. Following were some challenges faced by the prisoners in this pandemic situation.
Lack of medicinal care
Several countries as well as states in India took initiative to establish medical centers for the daily screening of the prisoners and also were provided with technical equipment and other required medicines for the safety of the prisoners. However, this was not followed in all the states. There was a lack of medical professionals for the daily screening of the prisoners. Vaccinations are yet to be completed in prisons.
Social distancing, sanitization, hygiene and cleanliness, timely availability of medicines, isolation of outsiders, special care for positive patients, etc. were not maintained upto the mark. The most impacted by this were women in the prisons as there was a lack of sanitation and hygiene. No extra precautions were provided to the women for menstrual, pregnancy, etc.
As soon as the lockdown was declared, all the departments of the prisons had restricted physical meetings inside the prisons. Prisoners were unable to meet their families, lawyers, and other prisoners and this has affected the mental health of the prisoners. No adequate alternatives were even provided by the prison staff. Entire visits were suspended.
As the family physical meetings were suspended due to the pandemic, no communication was possible. Due to this prisoners were worried about the security and the protection and most important well being of the family. Such a lack of communication made it more difficult for the prisoners to deal with this situation.
Solutions such as video conferencing, callings, etc were provided but not proven to be fruitful. In states like Karnataka, there was a restriction on the time duration of calling such as a maximum of 5 to 10 minutes, or like Jammu and Kashmir, it was once in 15 days. In some states, it was in operation from December 2020. This brought a gap in communication between the prisoners and their families.
Lawyers’ visits play an important role especially for those prisoners who were waiting for their trial or final sentence or parole long back. This suspension of lawyers visiting increased the level of anxiety among the prisoners. In some states, though it was made possible to communicate with the lawyers through physical meetings or video conferences or calls, however, this process was very slow. The prisoners have lost hopes for their early better life and no contact with the lawyers was possible and delay in proceedings.
In this pandemic, there was a need for more security and protection against the violation of human rights. Suspension of the inspection team led to more malpractice in the prison. No one was there to monitor the mechanism of the prisoners in the detention centres.
Involvement of NGOs and other organizations
Several NGOs and different welfare organizations have provided their helping hands in this pandemic situation. Such NGOs and organizations have helped the prisoners with lots of essential services such as food, medicines, safety equipment, etc. They have also initiated education and training services and organized cultural activities for the entertainment of the prisoners who are confined in the four walls.
They have also organized awareness programs in the prison to fight this pandemic situation. These organizations have also provided therapeutic services for bringing some positive energy among the prisoners. They have used all the precautionary measures and alternatives such as video conferencing for the arrangements of such programs.
However, even after certain initiatives were taken by these NGOs and organizations there were some problems faced by the detention centres which completely relied upon them for their services. During this period there was often delay in providing things in the prison. Sometimes it was even difficult to reach out to the problems of the prisoners.
Restriction on temporary bail from prison
As soon as the lockdown was declared by the Hon’ble PM of India on 23rd March 2020, the Supreme Court announced the release of prisoners either on parole or interim bail for the management of the population of prison and also to decongest the prison. However, this measure was not conducive to its purpose. This was due to the limited functioning of the courts and delay in the process of decongestion of the prison.
During the lockdown, the use of criminal justice machinery increased and this resulted in several arrests. According to the reports, 27% of the prisons in 19 states and union territories remained overcrowded. Hence it was observed that the number of inmates released was almost equal to the number of new inmates. Thus there was no change in the gathering of the prisoners and the prisons remained overcrowded.
This was observed in the state of Madhya Pradesh. Immediately after lockdown, almost 7000 prisoners were released and in the subsequent months, it was observed that nearly 6500 new undertrial inmates were brought into the prison. This concludes that the measure of decongestion of prison was not successful up to its expectation.
Restriction on movement of prisoners inside the prison
Lockdown has not just restricted the movement of the people in the country from their homes but has also restricted the movement of the prisoners within their prison. This was done with the intention of preventing infection but it turned into a violation of basic human rights. The prisoners were not allowed to attend their training sessions or to gain information. They were also restricted from socializing with the other prisoners which adversely impacted them and it felt likely to be torture and not less than any punishment for no reason.
Various alternatives were planned by the government for the prisoners so that they can contact or communicate with their families and lawyers. Such alternatives were as follows.
This was one of the easy alternatives to communicate with the family and other people during the pandemic as there were restrictions for physical meetings. However, there were many restrictions provided to the prisoners such as time limitations or were not being allowed to communicate everyday but once in a few days. These alternatives were provided after a few months of lockdown due to which anxiety among the prisoners was increased.
Video conferencing was another alternative set up for the meeting of the prisoners. Prisoners were allowed to talk to their family members face to face to know their well-being and were also used for the communication between lawyers and prisoners for discussing the status of their case. However, there were also challenges in this alternative as this needs access to the internet and there were network issues in the prison. Lots of technical equipment was required to set up this which was hold-up for a long time in the use of this video conferencing.
Precautionary measures for visitors
Various precautions were taken for the visitors so that there is no impact from the outsiders to inmates. Such precautionary elements were as follows:
- Screening of the visitors is to check whether they are not convicted of any kind of illness before visiting a prison.
- Maximum 2 visitors per prisoner.
- Social distancing among the prisoners and visitors.
- No entry without sanitization and mask.
- Washing hands before and after meetings.
World prison brief
World prison brief is a unique database that provides all the basic and detailed information about prisons and prisoners, around the world for free. It helps in the development of prison policy and practice throughout the world. Every country provides the information every month extracted from the government or other official resources.
It provides information regarding the population of the prisons, use of imprisonment for women, juveniles, and foreign tribunals, remand imprisonment, level of occupancy, the ministry responsible for prisons, etc. It also provides a comparative study of two or more different countries.
‘Forgotten behind bars Covid-19 and prisons’: report
Forgotten behind bars is the report by Amnesty International which deals with the condition of the prisoners and their rights in the prison during the Covid-19 pandemic. According to this report, prisoners were neglected and measures taken were leading to severe human rights violations in prison globally. It has been pointed out that about 11 million people are imprisoned in the entire world, thus the prisoners are at utmost risk of this contagious virus due to overcrowding in the prisons.
In many states, inmates have suffered huge problems in accessing soap, proper sanitization, social and physical distancing, and limited health care. It was opined that the vaccination should be prioritized for the prisoners which may either lead to catastrophic consequences for them.
Government should take initiative to provide all the essentials such as face masks, sanitizer and clean and hygiene surroundings, and water to prevent such an outbreak. Governments of many countries and states were unable to provide an accurate number of cases and deaths in the prison and also the details about their plan to vaccinate prisoners especially for those who are at higher risk.
The report has further pointed out about the countries which are at a huge risk of overcrowding prisons such as Bulgaria, Egypt, Nepal failed to manage the outbreaks due to covid. It was also brought into notice that Iran and Turkey were the countries where human rights defenders and the prisoners were detained arbitrarily and were even not allowed from covid related release. To tackle this situation the governments of countries like Argentina and the United Kingdom have used arbitrary ways such as abusive confinement for almost 23 hours per day, nearly for a week or even sometimes for the month.
The prison authorities sometimes used aggressive force against the prisoners who were protesting to meet their families and were unrest in the prisons. This has impacted the mental and physical health of the prisoners. After such struggles by prisoners around the world, almost 71 countries have introduced their vaccination policy for at least one clinically vulnerable group including the prison population and the staff.
The International human rights organization has suggested the update of the public health data especially with regards to the population in prison, infection, treatment vaccination, etc. regularly. They have also requested to not discriminate against any prison for providing vaccination jabs. In the end, Amnesty has also appealed to United Nation agencies and World Health Organisation to ensure that their further human rights are not being violated.
Problems faced by the prisons in different countries
As observed in the Amnesty International report, prisons were prone for virus transmission globally. Every country affected by it has suffered the consequences of the covid crisis such as follows:
United States of America
The United States detected its first case in March 2020 in the main jail complex in New York City. After almost 2 weeks more 500 new cases were found in the country including incarcerated persons and the staff members even after taking essential efforts. Many prisons have reported outbreaks of the Covid-19 crisis and deaths.
In the present time, jails are the most crowded places due to which their lives are in danger. One of the reasons for such spread was the infrastructure of the prison which was conducive to spreading disease. This led to difficulty in maintaining social distance in the prison.
The old age people and people with disabilities or illnesses were the targets of this covid virus. It was observed that people above 55 years of age are suffering from either heart or lung disease and hence, these people were at severe risk of getting infected or dying. Although the US Constitution has provided a right to health care under which there is easy access to services, they are facing challenges due to the increase in needs of these old-age prison populations. It was difficult to manage the expenses of the treatment of these incarcerated people during the pandemic.
Measures to mitigate such problems were also taken by the departments from the very beginning such as protective equipment, testing, and medical care, etc. however reducing the population was very important to overcome such outbreaks. In some states, the prisoners who were in detention centers were released. However, this was a concern for public safety. Another problem for such released prisoners was that they were found to be homeless and in need of resources.
In the end, it was opined that the covid-19 pandemic needs broad policy in the society to minimize such future tragedies.
The problem of overcrowding was also found in South Africa especially in the countries of Morocco, Nigeria, Ethiopia, and Algeria. However, there was no estimated data regarding the affected population or testing in the prisons.
Due to poor access to medical services, any communicable diseases are easily spread and this has happened in the case of Covid-19. Lack of medical professionals for consultation, improper sanitization, and other fundamental issues such as quality of food for growing immunity has led to such problems in prison.
Prisoners’ mental health was impacted due to the confinement as there was also the absence of psychological and psychiatric care during this pandemic. There was a need for immunization for the weakened inmates, women and children, and the old age group of prisoners. It was noted in Africa that infringement of prison health is a threat to public health.
Africa has also faced the severe violation of human rights as there was no quality of food, healthcare, education, training, infrastructure, and good livelihood and these were the inhuman acts that led to the spread of infection. It was very essential to develop and strengthen human rights in the Africa prison system.
Prison staff were in poor conditions of livelihood and were poorly paid. They were suffering from the overburden of violence in prison, overcrowding, poor health, etc. They were in contact with other public as well due to which they were at risk as a transmission medium in the prison as well as were at their homes. Hence it was necessary to provide them with proper health care and to resolve their fundamental issues.
Just like other countries, prisons in Europe were also in the bowl of overcrowdedness, poor health, violation of basic human rights, etc. There was an urgent demand for some action and solution by the Justicia network of the Human Rights Organisation. The prisons in Europe were often in unsanitary conditions.
Suspension of physical meetings of families and prisoners have increased tension and violence among them and also resulted in riots. They have also started reducing the population of the prisons to overcome the problem of overcrowding by releasing early, house arrest, delay in commencement of prison sentence, etc. this has led to 1000s of release.
However not every member state has taken such initiative, especially the states like Hungary, Romania, Bulgaria, etc. Due to the closure of the courts, there was a delay in prisoners’ pre-trial.
The actual concern was that the physical well-being in Europe was not protected even after a clear obligation by the government to provide preventive medicines, adequate sanitary conditions, and health care.
Legal Rights of the Prisoners
International Human Rights Law
It provides protection to the prisoners from racial, discrimination, torture and enforced disappearances. Special rights are also provided for children, women, disabled people, migrants and indigenous peoples. There are some optional protocols available to deal with specific issues and to file a complaint.
United Nation Charters
The UN charter has provided basic principles for the treatment of prisoners. These principles are as follows:
- There shall no discrimination among the prisoners based on race, sex, colour, language, religion, political, national, social origin, property birth, or another status.
- Respect all the beliefs and cultural practices of the prisoners.
- Prisoners shall be treated with dignity and should be valued as human beings.
- All prisoners have the right to retain their human rights and fundamental rights provided under UDHR, ICESCR, ICCPR, and any other United covenants.
- Prisoners have the right to participate in any cultural activities, education, and training for the full development of the human personality.
International covenants on civil and political rights, 1966
The ICCPR is the core instrument treaty for the protection of the rights of the prisoners. It provides the following provisions:
- It provides liberty and security to the prisoners. It restricts arbitrary arrest or detention.
- It contains provision for punishments against cruelty, inhumanity and degrading treatment.
- It restrains imprisonment merely on the ground of inability to fulfil a contractual obligation.
The Constitution of India, 1949
The Constitution of India provides some basic fundamental rights for both regular men and prisoners. The right to life and liberty under Article 21 also includes the right to live with dignity, food, bail, speedy trial and free legal aid services. Article 22 provides various guidelines for the rights of the prisoners in India. These rights include the right to consult lawyers, rights against inhuman treatment inside the jail and solitary confinement. It is an exclusive right under the Indian Constitution. Article 14 treats every individual equally before the law and provides equal protection of law to all.
Prisoners Act, 1894
This is the most ancient and first prisoners’ law in India. Section 37 of this Act provides urgent medical facilities for sick prisoners. It also obligates basic and essential commodities like clothing, bedding, food etc. Chapter VII of the act allows prisoners to work but not more than 9 hours a day with the superintendent’s permission.
Important case laws
The threat in prisons has increased with the outbreak of this virus. Adding on such restrictions on visits, social distancing, poor ventilation, etc became more challenging for the prisoners to stay in prison. Specifically in India, it was the state of West Bengal that had outbroken the violence in the prisons soon after the sudden lockdown.
During such protests, four were killed and many of them were injured. Similarly, other prisoners thinking of this as a violation of human rights had started protesting and demanding adequate facilities. During this entire pandemic, many judgments were given by the High Court and the Supreme Court regarding the protection of rights of the prisoners. Some of them are as follows:
In the case of Charles Sob Raj v. The Suptd., Central Jail Tihar (1978) it was observed that the person who is imprisoned also carries their basic rights. Fundamental rights are equally available to all convicts as a regular person but with certain restrictions due to the latter’s imprisonment. Not providing appropriate medical facilities to inmates is a violation of basic rights.
Further in the case of Pt. Parmanand Katara v. Union Of India and ors. (1989) the Supreme Court held that there is no alternative or second view for the protection of human life and it makes no difference between the criminal or an innocent person.
The Constitution of India did not expressly provide with the right to health, however, in the judgment given by the Supreme Court of India in the case of Paschim Banga Khet Mazdoorsamity and Others v. State of West Bengal and others (1996) said that Article 21 of the Constitution of India also includes the right to healthcare facilities as an essential element under the right to life.
This period of Covid-19 is quite challenging for each and every person on the earth. Many people lost their loved ones due to this infection. However, it was even more difficult situation for the prisoners in the detention centers or the prisons. Life of the prisoners was equally at stake as the person outside the prison or maybe more. Some way or the other the prisoners were neglected during the Covid-19 pandemic.
It is very important to note that the right to health care facilities is also a fundamental right under Article 21 of the Constitution’s right to life though expressly not provided. The government needs to reform prisoners’ policies and take necessary action against the violation of laws. Inspection visitors should have regular and strict checks on the mechanism of the prison and use of alternative measures, their accessibility, and availability. Healthy, hygiene and clean food and environment needs to be maintained in the prisons.
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