The catastrophic second wave of Covid-19 across India has posed the gravest challenge to the country since the Partition in terms of loss of human lives and a crisis too big to manage. These are testing times for people and for democracy as well. India claims its place in the list of greatest democracies in the world, but does this claim really sustain in view of the government’s actions with regard to the most vulnerable sections of society at such times?
The failure, or rather, criminal negligence of the authorities towards the urgent need to reduce the severe overcrowding in prisons has left thousands of prisoners’ lives at risk. Hundreds have been infected by the coronavirus and numerous fatalities have occurred in prisons. Jails across India are overcrowded beyond their capacities, which is not only against the basic tenets of prison systems but fatal in times of the second wave of Covid-19. In the present situation, when basic health necessities are scarce even in metropolitan hospitals, maintaining social distance is the surest way of saving lives. The ignoring of the grave risks to prisoners’ lives and denying them any safety is a crime against humanity.
Prisons across India have become hotspots of Covid-19. The families of the prisoners are in distress and anxiety from news reports of surge in Covid-19 cases in overcrowded prisons. Physical meetings between the inmates and family members have already been suspended, which has put family members in even more desperation as they are unaware about the health and other conditions of their kin.
The inappropriate and abusive approach of the authorities towards prisoners is taking its toll in terms of unattended critical health conditions and even deaths of inmates. A recent example in Kashmir is of the death of Mohammed Ashraf Sehrai while in judicial custody in a jail in Jammu. His family was unaware of his critical health condition until his health deteriorated to the level where death became inevitable. The death of Ashraf Sherai exposed the vulnerable condition of prisoners in J&K. It also brought to public attention the negligence and callous behaviour of the government authorities, who have paid no heed to repeated requests by family members to shift Kashmiri prisoners to jails within the valley for the time being until the pandemic subsides.
Kashmiri prisoners have been facing the brunt of draconian laws. The government’s oppressive attitude towards Kashmiri prisoners has become a matter of routine, particularly for those who are far away from their homes and languishing in overcrowded and unhygienic prisons in other states of India, like U.P., Haryana, and Delhi, as revealed by our RTI applications which we filed in the offices of J&K DG Prisons and Superintendent Tihar Jail, New Delhi. The statistics are very disturbing. Many Kashmiri prisoners are suffering in various prisons outside Jammu and Kashmir. Currently there are 12,715 inmates lodged in 11 sections of Tihar Jail as against the lodging capacity of 7,425, out of which 11,077 are undertrials and 1,635 are convicts. There are currently 28 Kashmiri prisoners lodged in 5 sections of the Tihar Jail, out of which 24 are undertrials and 4 are convicts. Most of these are political prisoners. The highest numbers of prisoners in Tihar are lodged in Jail no. 3, which is accommodating 2,607 prisoners beyond its capacity of 740.
Overcrowding in prisons is a consequence of criminal justice policy, not of rising crime rates. It undermines the ability of prison systems to meet basic human needs such as healthcare, food, and accommodation. Furthermore, it gives rise to problems such as lack of privacy and hygiene, which can cause or exacerbate mental health problems and increase rates of violence, self-harm, and suicide.
In the absence of medical assistance, prisoners are feeling helpless and are in distress. There is clear medical negligence and administrative apathy, which could turn prisons into gas chambers similar to Hitler’s times.
The death of Ashraf Sehrai has left families of other prisoners deeply concerned about their safety, especially at a time when the country is experiencing a sustained rise in Covid-19 cases and fatalities. To prevent the further loss of lives, it is necessary to release all prisoners, at least on parole, as all civilised nations around the globe have done. This is a humanitarian crisis and must be dealt with in a humanitarian way. Many prisoners have already died in different jails without much notice. In the case of prisoners from Jammu and Kashmir, many are lodged far away from their homes, which inflicts more miseries upon their families.
The right to life and liberty is a constitutionally guaranteed right under Article 21 of the Indian Constitution. It extends to persons who are under detention or who are imprisoned. The rights of prisoners must be protected and respected during the ongoing pandemic. The government should review its policies towards detenues and prisoners and must ease their sufferings in prisons. The Supreme Court of India in the case of DBM Patnaik v State of Andhra Pradesh, 1974 AIR 2092, held that “Convicts are not denuded of all the fundamental rights which they otherwise possess. A compulsion, following upon conviction, to live in a prison house entails by its own force the deprivation of fundamental freedoms like right to move freely throughout the territory of India or the rights to practice a profession… but the other constitutionally guaranteed precious rights under Article 21 are still applicable to the convicts that he shall not be deprived of his life and personal liberty except according to the procedure established by law”.
In another case, of Sunil Batra-I and II vs Delhi Administration (1978 Cri. LJ 1741 at 1795 SC, 1980), the Supreme Court has directed that the treatment of prisoners must be commensurate with the sentence and satisfy the tests of Articles 14, 19 and 21 of the Constitution. It expanded the scope of the writ of habeas corpus by recognising the right of a prisoner to invoke the writ against prison excesses inflicted on him or on a co-prisoner. Further, the court has given directions to the prison authorities to treat the prisoners with human dignity and the judiciary has often interfered with the prison administration for the protection of prisoners’ rights.
The prisons in J&K are less crowded as against the severely overcrowded prisons outside J&K, as the same was revealed by one of the RTI reports that we obtained in December. According to the data, 4,131 prisoners — 4,005 men and 126 women — were held in jails across J&K as of 6 December 2020, as against the total intake capacity of 3,660 in J&K’s fourteen jails. Of these prisoners, 3,735 were undertrials. Overall, a staggering 90.4 percent of the total prisoners were still undergoing trial.
The government must release those prisoners who are under trial and those convicted of crimes of less severity, so as to decongest the prisons. The Supreme Court has also directed states to examine releasing inmates convicted or facing trial in non-serious charges from jails either on regular bail or on parole to prevent overcrowding and spread of Covid-19 infection in prisons. In the light of deficiency of basic healthcare facilities and overcrowding in jails outside the region, the prisoners of Jammu and Kashmir must be shifted back to jails within J&K. This would help the authorities to prevent the further spread and surge of Covid-19 cases and avoid more fatalities. This could be a landmark decision to respect the appeals of the families and to uphold the democratic system of the country.

The writers are students of Law at University of Kashmir. [email protected], [email protected]

Aabid Mushtaq and Tajamul Islam