Pandemic, Prisoners and Parole

Ashutosh Rajput | Hidayatullah National Law University | 10th May 2020

The Supreme Court in Re: Contagious of Covid-19 Virus in Prisons laid out a suo moto action through the order dated 23 March 2020, wherein it directed to decongest prisons in wake of the ongoing pandemic. The court took this action by considering the densities of population in prison and pertaining to restrict overcrowding in prisons otherwise it will work as a catalyst in spreading such disease as no social distancing will be maintained under pathetic conditions. The order stated that ‘there are 1339 prisons in this country, and approximately 4, 66,084 inmates inhabit such prisons’. It is not only done in India but throughout the world.

Prison is the subject of State list and the same is being legislated by respective states hence, the state will parole them. The term parole is not defined in the Criminal Procedure Code unlike prison, but is of great importance since ages; therefore it refers to release of prisoners either temporarily or permanently before the expiry of prior terms on the promise of good behavior. Presently, the Prisons Act, 1894 is governing such paroling and this act has a provision for conditional release. 

The order also made it clear that the Supreme Court leaves it open to the high powered committee to determine the category of prisoners who should be released with respect to the nature of offence. Supreme Court also directed every state and union territory respectively to constitute a high powered committee so to determine the terms of paroling the prisoners. The said committee suggested that the convicted prisoners or under trial prisoners can be released on parole who had priorly prescription of punishment up to seven years in jail or who has completed the majority of year as a punishment under seven years could be released.

The act of parole becomes of great importance in light of the said order. It is to be understood that parole doesn’t eliminate the crime or forgive the offender rather it acts a burden of disciplinary action by the offender after divulging from prison and such prisoners can again be reinstated into the prison as soon as a crime is committed by them. Parole is not the ultimate freedom and such prisoner is under the supervision of respective state authorities. In Peoples v. Williams[1] the American court laid that a parole only alters the degree and method of confinement.

One of the intentions of laying suo moto action directs to right to life under article 21 of the Indian Constitution. Every individual living in territory of India has a right to life with dignity and under the surveillance of pandemic it becomes fundamental to ensure the said right. The treatment in such congested areas becomes a matter of great concern and here living with dignity in times of COVID-19 certainly cannot be achieved. A similar situation arose in Hussainara Khatoon vs State of Bihar[2]wherein Justice P.N. Bhagwati directed release of under trial prisoners so as to control overcrowding. Sunil Batra v. Delhi Administration & Ors.[3]also made certain provisions so as to prohibit inhuman treatment of prisoners. In Rama Murthy v. State of Karnataka[4]the Supreme Court also laid that prisons are prone to unhealthy and unhygienic conditions which is a matter of great concern. 

Recently, the Bombay High Court in the case of Ali Akbar Shroff v. The State of Maharastra[5] observed that every prisoner has a right to life. This case came in view when one of the inmates was tested positive of coronavirus and Chief Medical Officer stated that the very prison is isolated in the prison but detailed examination is not possible under such condition therefore, the patient urged to approve the bail application.  

But ultimately the matter lies in its after effect. As said earlier, surveillance will be kept on the paroled prisoners by public servants but, in times of COVID-19 it would become very much difficult to keep surveillance on to them. Talking about the laid suo moto action it becomes pertinent to think that the said committee suggested certain prisoners to get paroled in its ambit but what about other prisoners? The Supreme Court’s prime aim was to decongest but still there are many prisoners who are in prisons and are prone to unhygienic conditions. This depicts internal instability of government as to prison reforms. And according to the 2018 Prison Statistics Report of the NCRB Uttar Pradesh become the worst state as to overcrowding in jails as it the largest populated state.

There are two types of prisoners in Indian prisons on the basis of nationality, one is the local prisoners and other is the foreign prisoners. The said committee doesn’t recognize the boarding of foreign prisoners and if paroled them, they cannot comply with the guidelines issued on paroling them.

The author is of the opinion that the directions laid by Hon’ble Supreme Court was of prudent nature in light of COVID-19 but still the main aim should be to reform prisons conditions as still there are prisoners residing and in future new prisoners will certainly reside there. The paroling should be done not merely on the basis of their punishment rather it should be done on the basis of individuals who are more prone to such disease, for instance a pneumonia patient is more prone to coronavirus, hence should be released sooner as per guidelines. As prison is a matter of state list therefore the states may have different stand relating to paroling of prisoners, hence to avoid the discrimination among prisoners there is a need for a uniform legislation governing prison activity. Mere paroling will still not curb the spread of the virus but it will help in its reduction. 

[1] (1992) 3 Cal. App. 4th 1100

[2] 1979 AIR 1369

[3] (1978) 4 SCC 409

[4] JT 2002 (8) SC 314


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