Context: As the Covid contagion reportedly sweeps through several prisons in India, several ailing or elderly undertrials are denied bail due to the gravity of their offence.

More on the news: 

  • Recently, a 62-year-old man died of COVID-19 in the senior citizen barracks in a Delhi prison. Twenty-two inmates tested positive thereafter. 
  • Undertrials account for nearly 70 percent of India’s prison population.

Concerns with respect to prisons in India:

  • Overcrowded: The Supreme Court itself admitted that Indian prisons are overcrowded and potential hotbeds of COVID-19. 
  • High Power Committees (HPC): Created in each state interpreted the SC’s orders as a direction for creating a classification on the basis of offence and sentence. 
    • These HPCs have not adopted a prisoner-centric approach even towards terminally ill, pregnant and lactating women, foreigners, the elderly or disabled, or the undertrials who are in prison for years.
    • For example, in Delhi, all foreigners, who are largely South Asians and Blacks, are excluded from the HPC’s classification as deserving of interim bail, irrespective of offence or sentence, even though Article 21 protects all persons. Nor are women treated as a class.
  • Violates Rule 24 of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offender: For the Treatment of Women Prisoners non-custodial means should be preferred for pregnant women during the pre-trial phase. 
  • Section 61 of the Disaster Management Act, 2005 (DMA): It says that while providing compensation and relief to the victims of disaster, there shall be no discrimination on the ground of sex, caste, community, descent or religion. 
    • Prisons are “affected areas”, and relief and compensation to prisoners is a statutory obligation. 
  • Government’s COVID policy is silent on inmates:  That specifically identifies senior citizens, the co-morbid, pregnant, lactating women as high-risk populations.

Way ahead: 

  • The HPC classification needs urgent review to ensure there is no discrimination as per the DMA. 
    • Women, children, senior citizens, gender and sexual minorities, Dalits, religious minorities and the disabled must be treated as custodial minorities. 
  • A moratorium should be pronounced on fresh arrests, remand and custodial measures to ensure that jail is truly the exception for undertrials.
  • Bail on humanitarian grounds: To all pregnant inmates. 
    • The Ministry of Women and Child Development recommended in 2018 that pregnant women should be given bail to facilitate childbirth outside the prison. 
    • The National Commission of Women’s advisory (2020) recommended that women undertrials who are charged with life or death should also be given bail.

Source: https://indianexpress.com/article/opinion/columns/when-bail-is-exception-6491642/