Safeguarding Prison Health during the ongoing COVID-19 pandemic

Original petition here.

To,
Honorable Justices, High Courts,
Indian States and Union Territories; and
Chairpersons, High Powered Committees,
Indian States and Union Territories; and
Executive Chairpersons, State Legal Service Authoruty;
Cc: Chairperson, National Legal Services Authority

Hon’ble Justice Shri Arup Kumar Goswami,

Greetings! This appeal – endorsed by 45 organization from across India and outside; and 186 professionals in health and allied themes from India and outside–   is initiated by Forum for Medical Ethics Society (FMES) and Jan Swasthya Abhiyan (JSA) on behalf of health care workers and public health professionals, in solidarity with in-mates of prisons in India to safeguard their health and health rights during the COVID-19 pandemic based upon public health and human rights principles. Two other appeals – appeal 1 (April 6, 2020), and appeal 2 (May 3, 2021) – have been made earlier, with similar objectives.

We appreciate the Hon’ble Supreme Court of India (SC) Orders (March 23, 2020May 7, 2021) to address the pressing problem of overcrowded prisons and threat it poses to health of prisoners in general and more so in the event of the ongoing COVID-19 pandemic. In passing this and other related orders since then towards decongesting prisons and safeguard health of prisoners, the SC have repeatedly invoked various international covenants and declaration such as UN’s Universal Declaration of Human Rights, and UN’s International Covenant on Civil and Political Rights along with Article 21 of the Constitution of India, and the Protection of Human Rights Act, 1993 towards upholding the principle of human rights, and right to life and right to health.

Importantly, High Powered Committees (HPCs) constituted via the SC Order (2020) have responded to their mandates by undertaking measure towards decongestion of prisons. While these measures are appreciated, these have been inadequate from a public health and human rights perspective during the ongoing pandemic. They have also been un-even across states and UTs.  Therefore, there is an urgent need for you to further strengthen efforts towards decongestion of prisons across the country and ensure adequate quality health care services, including access to COVID-19 vaccines, made available for prison inmates.

Below, we wish to bring to your notice select key observations regarding efforts made by HPCs across states and UTs, and outstanding issues which warrant your immediate attention and action:

1. Inadequacy of efforts to decongestion in response to the SC Orders (20202021). For example, Commonwealth Human Rights Initiative (CHRI) reports that during the first wave, over 61,100 prisoners were released, which achieved only about 15.4% overall reduction in occupancy rate. Additionally, this is inadequate to address overcrowding of 40% of the Indian prisons including 134 prisons having overcrowding from 100% to 636%.

2. Regarding criteria for Release to achieve Decongestion, we note that the SC Order (2020)

  1. left it open to HPCs, “… to determine the category of prisoners who should be released …, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.” (pp:5).; and
  2. It also directed that HPCs will follow the release of inmates of prisons guided by the Standard Operating Procedures (SOPs) prepared by the National Legal Services Authority (NALSA) meant for smooth functioning of Under Trial Review Committees (UTRCs) with respect to ensuring Under Trial Prisoners (UTPs) covered under 14 categories benefit without delays.;
  3. We note that these criteria for release of inmates of prisons towards achieving decongestion employed by HPCs DO NOT take into account wide ranging vulnerabilities of prison in-mates relating to aspects such as health (ill-health – physical and mental), age, and being differently abled. These vulnerabilities need to be central to determine the release of prison in-mates both because it is being done in response to the ravaging pandemic; and because the government and its apparatuses are entrusted to uphold rights of prison in-mates in alignment with the Constitution of India and other relevant international obligations we mentioned earlier.
  4. The CHRI Report brings forth that barring a few states/UTs, most relied on the aforementioned criteria for release of prison in-mates even though SC Order (2020) had mentioned that HPCs may consider, “… or any other relevant factor, which the Committee may consider appropriate.” for release of prison inmates. For example, CHRI Reports that only five state HPCs (Mizoram, Punjab, West Bengal, Delhi and Jammu & Kashmir) considered cases of elderly prisoners for release; only three (Mizoram, Punjab and Delhi), HPC considered undertrials who were suffering from co-morbidities, chronic diseases and preexisting conditions like chronic diabetes, HIV, serious neurological issues, chronic lung and kidney disease, severe asthma, heart condition, cancer, Hepatitis B or C, Tuberculosis, etc. Only Punjab HPC specifically mentioned pregnant women as the category for release. It notes disappointedly that the HPC Chhattisgarh, decided against issuing any general direction for release of prisoners aged above 60 years in view of the scope of the orders passed by the apex court. We note these for you to draw upon for your further immediate action.
  5. Chiefs of the UN agencies (May 13, 2020) in a signed statement appealed for the release of non-violent detainees as well as for those at high-risk, such as the elderly and people with pre-existing health conditions by highlighting the heightened vulnerability to COVID-19 of prison inmates and others in confinement, and urged policymakers to “…consider limiting the deprivation of liberty to a measure of last resort, particularly in the case of overcrowding”, which undermines hygiene, health, safety and human dignity, causing an “insurmountable obstacle for preventing, preparing for or responding to COVID‐19.”.

3. Currently, additional complexities have stemmed from the ravaging second wave of the pandemic. For example, almost 90% of the prisoners who have been released last year (year 2020) have returned to prisons in February and March, 2021 as per the SC Order (2021). This, therefore, warrants immediate attention to respond to heightened risks of the spread of the pandemic and further compromise of health of prison in-mates stemming from return of prisoners.

4. A long-standing issue of strengthening prisons’ health care services needs immediate attention to ensure prison inmates’ access to timely and quality healthcare (preventive and treatment). Prison inmates during this pandemic are at heightened health risks both for their vulnerabilities arising of overall poor prison conditions; and lack of access to appropriate and quality COVID-19 health care resources.

5. Against this backdrop and in view of the projections by public health experts of a third wave of the Covid-19 epidemic, the delays in achieving vaccination coverage due to shortage of vaccine supply, the obligations of the State is to take measures in alignment with the WHO has warning,“ … without controlling the infection inside prisons, global efforts to tackle the spread of the disease may fail’; that ‘efforts to control COVID-19 in the community are likely to fail if strong infection prevention and control measures, testing, treatment and care are not carried out in prisons and other places of detention as well.’.

6. Furthermore, specific requirements of special groups of prisoners, such as, people with disabilities, pregnant women, and transgender persons, needs attention.

7. We appreciate the reference the SC Order (2020) made towards restricting new arrest and averting further congestion, “…The High Powered Committee shall take into account the directions contained in para no.11 in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.”. (pp:5). Also, alternatives for detention should be promoted and alternative forms of custody such as house arrest, open prisons, correctional homes be considered.

8. Political prisoners can be let out on bail and be treated like they are in detention (house arrest).

9. Finally, as medical and public health professionals we are guided by international ethical conventions and guidelines. According to the World Medical Association Declaration of Edinburgh on Prison Conditions and Spread of Tuberculosis and other Communicable Diseases, “Prisoners enjoy the same health care rights as all other people. This includes the right to humane treatment and appropriate medical care… . The most efficient way of reducing disease transmission is to improve the prison environment by putting together an efficient medical service that is capable of detecting and treating the disease, and by targeting prison overcrowding as the most urgent action.”.  It also recommends that wherever possible alternatives to detention should be used.

Asks

In view of this, we urge HPCs across all states and UTs to take urgently the following steps:

  1. Include medical professionals, medical social workers, public health professionals, health department officials and relevant civil society organisations in these Committees to facilitate and monitor the release of prison inmates.
  2. Urgently convene to discuss and modify the categories of prisoners to be considered for release, giving priority to the health status of the prisoners, especially the under-trial prisoners (UTPs).
  3. Use the criteria of age and vulnerability across prisoners and treat everyone equally irrespective of charges/offense; and release those who are thus eligible, subject to their consent.;
  4. Ensure that all health facilities, such as, testing, contact tracing are available, by linking up with local hospitals from public and private sectors, for safeguarding health of the prisoners who are not released, to ensure their access to timely and dignified health care.;
  5. Take this opportunity to ensure speedy trials, granting of bail and releasing those who have been granted bail.;
  6. Categorise prisoners as one of the priority groups for vaccination and offer vaccination to all prisoners in a safe and non-coercive manner while we note vaccine roll out for prison inmates.;
  7. Given the hesitation among some prisoners to return to their homes due to fear of hunger and poor living conditions, ensure that the released prisoners and their families have timely access to medical care and relief measures such as food rations, and are not denied entitlements under national and state programmes.;
  8. Utilize this opportunity to prioritize improvement of prison conditions and implement long overdue prison reforms: such as increasing budgets for prison health facilities, improvement of the living conditions in prisons, and appointment of requisite medical and other staff, for protecting life, liberty and dignity of prisoners.

Sincerely,

Dr Sunita Sheel Bandewar, General Secretary, Forum for Medical Ethics Society (sunita.bandewar@gmail.comfmesmumbai@gmail.comadmin@fmesinstitute.org ); and

Dr Sulakshana Nandi, National Joint Convener, Jan Swasthya Abhiyan (sulakshana.nandi@gmail.comjsasect.delhi@gmail.com )

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