Barely a few months after news broke about a novel virus with the potential for a global pandemic, COVID-19 brought the entire world to a grinding halt. Even though some countries have decided to gradually open up, the rate of new infected cases shows no sign of slowing down. By now, more than 13 million people have been affected and over half a million are dead. The virus has mercilessly affected all sections of our society whether rich or poor, young or old. Now the virus knocks at the door of a highly vulnerable group of people whose choices are limited – prisoners.

A Prison System in Disarray

A few days ago, the leader of Assam’s Krishak Mukti Sangram Samiti, Akhil Gogoi, a well-known political activist, tested positive for coronavirus. The people of Assam and many renowned writers have urged the government to release Akhil Gogoi from prison, and they also questioned the constitutionality of his continued imprisonment.

Veteran political activist and poet Varavara Rao also reportedly contracted the virus, after multiple reports also claimed that the poet has aghast living conditions in prison. These incidents shed some light on a major crisis which the prisoners in this country are now facing: the prisons are now turning out to be a new hotbed for coronavirus cases. The inmates are confined within those heavily guarded walls, but they are fully exposed to the virus.

On this subject, the Union Ministry of Home Affairs issued an advisory on May 2. A section of the advisory reads: “[E]xperience shows that prisons, jails and similar settings where people gather in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons.” The same advisory further recommends risk assessment through thermal screening, isolation, and consideration to implement physical distancing measures. The relevant question is how far this truly is possible.

The occupancy rate of Indian prisons has slowly but steadily increased over the years – 113.7 percent (2016), 115.1 percent (2017) and 117.6 percent (2018) – according to the latest available prison statistics published by National Crime Records Bureau (NCRB). The additional capacity added during the period of 2016 through 2018 was 15,347, but the actual number of prisoners increased by 33,081 during the same period. As is evident, the increase in the number of prisoners is double the increase in capacity of the prisons.

Notably, the numbers of undertrial prisoners have also increased, both in absolute and relative terms. The share of undertrials has increased to 69.4 percent in 2018 from 67.68 percent in 2016. The share of convicted prisoners, on the other hand, has naturally decreased from 31.33 percent in 2016 to 29.93 percent in 2018. What is more concerning than this is that a little over 35 percent of these undertrial prisoners have been in jails for over a year. Indian prisons are thus overcrowded beyond capacity, and undertrials make up for the lion’s share of it. This makes it difficult for prison authorities to maintain appropriate physical distancing, let alone isolation, as recommended by the Home Ministry’s advisory.

Apart from inability to maintain social distancing, overcrowding of prisons has other implications as well. The UN Office on Drugs and Crime reports that, “Prisons have very serious health implications . . . health conditions deteriorate in prisons which are overcrowded, where nutrition is poor, sanitation inadequate and access to fresh air and exercise often unavailable.” This could help explain why prisons in India are one the most vulnerable institutions in times of COVID-19 and are rapidly turning out to be hotspots for the pandemic.

Unfortunately, only 4.3 percent of the total expenses of 2018-19 were utilized for “medical matters.” Overcrowding and abysmal spending on health brings into question the medical preparedness of our prisons to handle a pandemic of this proportion.

Prisons Reforms & Implementation Failure

Since Independence, there have been a slew of committees and reports on prison reforms. However, none seem to have shaken the tree. There hasn’t been much real change on the ground. Prisons and other reformatories come under List II of the Seventh Schedule, and the central government only performs an advisory and supportive role. The Justice Mulla Committee in 1983 had recommended moving prisons to the concurrent list.

Prison reforms have been on the agenda of the judiciary as well. Back in 2018, the apex court formed a Justice Roy Committee to analyse the condition of prisons in India and suggest measures. Based on the report of the committee, the Apex court observed that prisons are severely understaffed, to the tune of 30 – 40 percent of total strength.

The committee, while observing the status of undertrials in Indian prisons, recommended that the lawyer-to-prisoner ratio is increased, modern cooking facilities are provided, and speedy trials are conducted. The report further stated that courts should use their “discretionary powers” and award sentences like “fine and admonition” if possible, instead of sending the offenders to jails. The intended objective of the committee was to decongest the prison by lawfully discharging the undertrials or preventing the increase of undertrials in prison in the first place.

The Law Commission in 2017 also recommended that those undertrials who have completed one-third of their maximum punishment are released on bail, applicable to only those cases where maximum punishment does not exceed seven years. The utility of these recommendations depends on their effective implementation.

Prison and Indian Society

The Commonwealth Human Rights Initiative reports that in India, 71 percent of the prison population is either illiterate or educated below high school. Moreover, imprisonment classifies them as “undesired” among society. They are forced to exist in an overcrowded space with a lack of adequate health facilities. Prison itself is the punishment, and the appalling living conditions amount to double jeopardy.

India, as a nation, is fighting a pandemic and an economic crisis, all while maneuvering through border skirmishes. Nonetheless, this cannot be used as an excuse to abdicate the state’s solemn duty of health and well-being for all its citizens, including prisoners. The prison, after all, works as a corrective institution and not a coercive one. In the words of Nelson Mandela, “A nation should not be judged by how it treats its highest citizens but its lowest ones.”

Abhishek Chakravarty is an Assistant Professor of Law at Sai University and a faculty member of the Daksha Fellowship. He previously worked in the public policy sector, and he was also an advocate in Gauhati High Court.

Abhijit Rajkhowa is a mechanical engineer with an interest in public policy and governance.

Suggested citation: Abhishek Chakravarty and Abhijit Rajkhowa, COVID-19, Political Prisoners, and the Overcrowding of Prisons, JURIST – Academic Commentary, August 3, 2020, https://www.jurist.org/commentary/2020/07/chakravarty-rajkhowa-covid19-prisonovercrowding/.

This article was prepared for publication by Cassandra Maas, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org