Rights of undertrial prisoners in India amid Covid-19 pandemic

By Shourya Gupta*

In 2020, when the first wave of Covid-19 struck the nation, the Supreme Court passed an order by which the High-Powered Committees (HPCs) in the states could release the undertrial prisoners based on the criteria set by the individual HPCs. The idea behind this was to decongest prisons since the when the pandemic hit, they could act as hotspots of the viral infections. Out of the 28,642 prisoners to be released at that time, about 10,467 were released by September 14th, 2020. Further, following the second wave, the Supreme Court meetings on May 7 and May 11, 2021, resulted in the decision to release the prisoners who were granted temporary parole in 2020. Also, decision on emergency paroles were directed to be taken within 10 days from the meetings, i.e., 20 May 2021.

In the context of the inception of the HPC and the Supreme Court ruling, we were curious to understand why an arrangement wherein the paroles for the undertrial prisoners could not be sped up even in a normal, non-Covid scenario.

For obtaining greater insights in the matter, we interviewed Ms Kavita Srivastava for PUCL Jaipur. Before commenting on the ruling, she enlightened us about the concept of detention and prison in general. There are two ways in which we can look at prisons – either as detention or as correction centres. From the 60’s there has been a shift in ideology to look at prisons as correction centres. However, this has not been reflective in the procedures and rules at the prisons in India.

The prisoners are still looked at in a way that stigmatises them and gives the perception that a mistake made once makes a person incorrigible. They are tortured and condemned, which might even mentally break them. Data suggests that 96% of the first-time prisoners globally and in India, commit crimes on impulse. According to the new ideology, it makes sense for prisons to provide a nurturing atmosphere and aid in reforming people.

Ms Kavita argued that open prisons were a better form of detention in this regard. Basis trust, the convicts who have exhibited good discipline, live in their own dwellings, and are only required to report for a role call daily. There have been historically lesser cases of absconding from open prisons as compared to the closed ones.

Additionally, she was extremely critical of the HPC, which set the criteria for the release of undertrial prisoners’ basis the duration of their sentence. She argued that while age and prevalence of comorbidities were the primary criteria which determined the susceptibility to contract Covid-19, most HPCs did not consider this as a criterion for granting parole.

From the interview, it was clear that while mercy is a part of the constitution and reformist ideology prevails in the prison jurisprudence, the HPC criteria are not reflective of that.


[1] https://www.outlookindia.com/newsscroll/sc-to-pass-order-on-hpcs-power-to-release-prisoners-during-covid19-pandemic/1935439

[2] https://www.newsclick.in/maharashtra-hpc-directs-re-release-prisoners-amid-covid-19

*PGP 2020-2022, IIM Ahmedabad

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