Prisoners are vested with numerous human and fundamental rights. With this thought let's examine the recent policies adopted by several States to enable the temporary release of certain categories of prisoners from jails for a specified period of time due to COVID pandemic.
On 28th March this year, the Supreme Court took suo motu cognizance in a matter that was titled 'Contagion of COVID 19 Virus in Prisons'. The Supreme Court observed that having regard to Article 21, it has become imperative to ensure that the spread of the Corona virus within the prisons is controlled. The court directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or interim bail for such period as may be thought appropriate. The Court clarified that it would be open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, 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.
The High Powered Committees across the States in their wisdom have made schemes for temporary release of certain categories of prisoners from jail. However, the schemes formulated by numerous States for temporary release of prisoners during the COVID 19 crisis have followed a rather conservative and restrictive approach in categorizing the prisoners eligible for temporary release from jails. Most schemes have stipulated that only those prisoners accused or convicted of offences carrying a maximum sentence of upto seven years would be eligible for the temporary release. Also, most schemes have specifically excluded prisoners accused of specified offences. Are such restrictions justified in this critical time when the COVID 19 is threatening to spread into the community. Jails are at a grave risk of a COVID explosion, keeping in view the overcrowding and inhuman conditions. Corona would have silently entered most jails through the thousands arrested recently, before and during the lockdown.
Whether the lockdown is revoked on 3rd May or not, normalcy in the functioning of courts will take a long time to return. What to speak of speedy trial which is part of the fundamental right under Article 21, there's no question of criminal trials even resuming in the near future. Normal resumption of the hearing and disposal of criminal appeals in the courts over next several months also appears unlikely. Cognizance must be taken of these realities by the High Powered Committees designated to look into the temporary release of prisoners during the pandemic. Keeping prisoners in jail whereas their criminal trials are stalled and criminal appeals remain unheard indefinitely, is a gross violation of Article 21.
In the above scenario, a strong case is made out for expansion of the list of prisoners eligible for temporary release from jails across the country till normalcy returns with the Corona pandemic subsiding and resumption of normalcy in courts, without in any way compromising with the law and order in the country. The schemes of releasing prisoners, in operation presently, thus must be liberalized while ensuring that law and order in the country is not compromised in any way. The Apex Court in Anuradha Bhasin v. Union of India [WP(C) 1031/2019] has observed that the objective of the Court is to strike a balance between liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner.
Here is the way forward.
Release from jail for limited duration is a relief granted by courts frequently to undertrials and convicts. Interim bail, interim suspension of sentence, Parole, and Furlough are legal concepts well known to criminal law and these reliefs are frequently granted to prisoners. The essence of these reliefs is temporary release of prisoners from jail. The distinctions between the aforesaid concepts need to be understood. An undertrial may seek temporary release from jail on some exigency, which is commonly referred to as interim bail. Depending upon a confluence factors such as the nature of offence alleged (serious or not), chances of the accused absconding, apprehension of his influencing witnesses or tampering of evidence, and the nature of the exigency the court exercises discretion whether or not to grant interim bail.
When a prisoner has been convicted and has appealed against his conviction he may seek temporary release from jail which in legal parlance is called interim suspension of sentence on showing an exigency.
When the appellate court has convicted the accused whether by converting the acquittal into a conviction or upholding the conviction by the trial court, temporary release from jail on certain exigencies is called 'Parole'.
Furlough is yet another grant of temporary release of convicts from jail and is distinct from Parole. Furlough is granted to a prisoner without his having to show any exigency. The underlying concept of Furlough is that convicts sentenced for long terms of imprisonment such as lifers are likely to lose their mental equilibrium and family ties due to long incarceration, hence, such prisoners need to be temporarily released from jail periodically.
Interim bail, interim suspension of sentence, Parole, and Furlough are all interim reliefs granted to prisoners whereby they are released from jail temporarily. Generally, most categories of prisoners are eligible for being considered for temporary release from jail. These reliefs are granted on a case to case basis. Neither the nature of the offence nor the quantum of punishment, are absolute barriers in praying for these reliefs. Even lifers are eligible for these reliefs and in fact Furlough is meant for prisoners with long sentence terms.
A significant feature of these temporary releases from jail is the fact that once the interim release is granted to a prisoner and liberty is not misused, a similar relief of temporary release the next time is much easier to obtain from the concerned authorities. A positive past record of not having misused the temporary release from jail by surrendering on time and not committing any offence when outside jail, makes it easier in getting a temporary release from jail the next time.
The aforesaid principles and features of the criminal justice system should be taken into account by the High Powered Committees for liberalizing the Schemes to release many more prisoners during this COVID pandemic.
All prisoners including lifers who have enjoyed temporary release from jail in the past and did not misuse their liberty must be temporarily released from jails during the pandemic. In other words, irrespective of the nature of the offence or the quantum of sentence for the offence accused or convicted of, every prisoner who has enjoyed temporary release from the jail by whatever name called (interim bail, interim suspension of sentence, Parole or Furlough) in the past, must be considered for temporary release from jail till the end of the pandemic and return of normalcy in the functioning of the Courts. Prisoners who have enjoyed temporary release from jail on an earlier occasion or occasions and did not misuse liberty satisfy the 'reliability' test for subsequent release as an established practice in our criminal justice system.
Here are some suggestions which the High Powered Committees should find reasonable in the current scenario and keeping in mind the balance between liberty and security of the citizens. All prisoners, undertrials as well as convicts, who enjoyed temporary release from jail whether on interim bail, interim suspension of sentence, Parole or Furlough in the past, should be released till the resumption of normalcy in Courts. Some checks are necessary so that the underserving prisoners do not benefit from the scheme. For instance, in cases where after the last release, the prisoner has committed a serious misdemeanor in jail such as committing an offence it should render him ineligible for the interim relief. Also where the prisoner has been sentenced to death after the previous release, he should be rendered ineligible for the temporary reprieve.
The above suggested scheme is extremely simple to implement and doesn't need lawyers to argue or judges to adjudicate. As the Nominal Roll of a prisoner speaks of all his past releases with dates as also the list of misdemeanors in jail a large number of deserving prisoners whose credibility is proven by past release or releases from jail without abusing liberty can walk out of jail without in any way threatening the law and order in the country and without any judicial intervention. When in normal times a prisoner is shown leniency for temporary release from jail for the reason he did not misuse his liberty on a past occasion such leniency ought not be truncated or restricted in times of crisis by putting the nature of offence and quantum of sentence as obstacles in his release.
In the words of Justice Bhagwati [Francis Coralie Mullin v. The Administrator, Union Territory of Delhi; 1981 SCR (2) 516], "Article 21 is a fundamental right that has a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society." The COVID 19 crisis must be used for expansion of the horizons of Article 21 to release the largest number of prisoners from jails without compromising on security
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(Vivek sood, is a Senior Advocate and Ayushi Bansal is an Advocate)