Rights of Prisoners during COVID-19



The COVID-19 outbreak has been the most difficult challenge the global community has faced in recent years. It is the catastrophic socio-economic and significant health impacts of the spread of the virus that prompted the World Health Organisation (WHO) to declare the outbreak a Public Health Emergency of International Concern.

Indian prisons in the absence of continued lack of foresight, the slow working of the overburdened judiciary, and many other such reasons remain not only potential hubs for the mass outbreak of COVID-19 but also a complete mockery of the thought of social distancing. From the shortage of medical aid in detention facilities to severe overcrowding and being abruptly stopped from the world outside, incarcerated persons have had to endure the worst sort of human rights violations in the ongoing COVID-19 pandemic. Measures introduced by governments to stop the spread of the infection have often been inadequate and, in some cases, have themselves led to human rights violations. The pandemic failed the imprisoned persons in providing technical support to continue communication with the outside world that ultimately resulted in prison unrest. Lawyers and families were denied Jail Mulaqats without making any alternative arrangements. The study points out that despite the Supreme Court’s order to adopt video conferencing technologies to beat the shortage of physical meetings, many states did not make necessary arrangements. Just as there have been problems with the introduction of video conferencing in courts, the roll-out of video conferencing in prisons to permit detainees to speak with relations was very slow. Thus, it is important to research the rights of prisoners locked up in prisons exceeding their capacities across the length and breadth of India.


State’s Obligations towards the Health of Prisoners

The Right to Health is not expressively a Fundamental Right, however, as per the judgment of the Supreme Court of India in Paschim Bengal Khet Mazdoor Samity & Others v. State of West Bengal & Others, the right to healthcare facilities forms an integral part of the right to life under Article 21 of the Constitution of India. The Supreme Court of India on its decision in Charles Sobhraj v. The Superintendent, Central Jail, Tihar, New Delhi, also made it clear that “except for the fact that the compulsion to live in a prison requires by its force the lack of certain rights, just like the right to manoeuvre freely or to practice a profession of their own choice, a prisoner is otherwise eligible to the essential freedoms guaranteed by the Constitution.”[1]


Statutory Provisions

Rights mentioned in Part III of the Indian Constitution are offered to the prisoners also because a prisoner remains a ‘person’ inside the prison[2].

➔ Article 14[6] expresses the concept of ‘equal should be treated equally’ and the concept of reasonable classification.

➔ Article 19[7] of the Constitution provides six freedoms to the citizens of our country. Among others, freedom of speech and expression and freedom to become a member of an association can be acquired by the prisoners convicted for an offence.

➔ Article 20(1)[8] protects the persons from ex post facto laws, this clause of Article 20 provides to protect a prisoner from being convicted to any in article 20(2)[9] represents ‘Double Jeopardy’, this clause states the rule of the common law of ‘Nemo Debet Bis Vexari’ that is no person should be put behind bars twice for the same offence.

➔ An important safeguard that is useful for under-trials and ‘detenues’ is mentioned in Article 20(3)[10] which provides that the jail authorities or the police cannot force the prisoners to give testimony.

➔ Article 21 includes the principle of liberty as mentioned in A.K.Gopalan’s Case: the ambit of Personal Liberty is widespread and complete. It includes substantive rights to Personal Liberty and the procedure prescribed for their deprivation.[3]

➔ Article 21 of the Indian Constitution and Section 309 of CrPC provides for the right to a speedy trial as a fundamental right to the prisoner. The fact that the provision of a speedy trial is a socio-logical right to protect the person makes it essential for the accused person.

➔ Article 22(4) to (7) provides certain special safeguards for the detainees under preventive detention laws. Clause (4) of Article 22 provides the maximum period of 2 months for detention for which a detainee can be captured without asking the opinion of the Advisory. Article 22(6) provides that the authorities can deny the disclosure of certain facts to detenu in the public interest.

➔ Article 39 A of the Constitution of India empowers the prisoners to secure free Legal Aid.

➔ In the case of Sheela Barse vs the State of Maharashtra, the court observed that “the legal assistance to a poor or accused, arrested and put in danger of his life or personal liberty, is a constitutional requirement not only by Article 39A but also by Articles 14 and 21 of the Constitution.[4]

➔ Articles 72 and 161 provide special powers to the President and the Governors of States to grant pardon or mercy to the prisoners from the judicial process.

Apart from the Constitution, Section 4 of the Prisons Act, 1894, provides for the supply of sanitary accommodation facilities to prisoners. Under the Act, a prisoner necessarily has to be checked by a health professional at the time of admission into the prison.

During a pandemic breakout, the Model Prison Manual, 2016 considers permanent segregation sheds for each infected prisoner, overcrowding to be avoided in isolation wards and cells, and treatment of patient’s clothing and infected barracks.


Measures taken by the Government

The Supreme Court of India took Suo Motu cognizance of the over-occupancy of the Indian prisons in times of the COVID-19 outbreak within the country. It directed the State Governments and Union Territories to think about granting paroles of 4 to 6 weeks to prisoners booked under lesser offences to decongest prisons[5]. While isolation wards have cropped up in prisons all across the country, major steps for decongesting of prisons within the sort of granting emergency paroles and interim bails to under-trials have started across India.


Analysis and Conclusion

The primary responsibility of the state concerning prison reforms in light of the COVID-19 outbreak has been in the form of reducing the number of occupants in over-occupied prisons in the country. However, the rate at which this exercise is being conducted across the length of the country poses some serious questions concerning the consequences of this response. Thus, with no COVID-19 tests being conducted in every prison from where such prisoners are released, there is a risk of releasing new variants of the disease all across India because it is mentioned that some often do not show early symptoms. This is highly possible due to the poor state of healthcare facilities in prisons across India, further aggravated by an acute shortage of trained medical professionals posted in prisons.


The Supreme Court has ordered the concerned state governments to not release any prisoner who, after the passing of the relevant order, has suffered from coronavirus. Several states have recorded COVID-19 outbreaks in prisons with minimal measures taken to control them. Protests and unrest have also broken out in prisons in the context of COVID-19 and the report concludes that they have often been attributed to the introduction of restrictive measures, like the suspension of prison visits or poor health and living conditions. In India, particularly in West Bengal, violence had broken calls at prisons following the sudden lockdown.


Now, with the vaccination drive being extended in full swing in most countries, prison staff and officials are considered on the priority list in many regions. Prisoners, however, remain neglected. For instance, in India, prison staff was included among “frontline workers”, one among three priority categories for vaccination, but prisoners dropped out from the list within the relevant Ministry of Health and Family Welfare guidelines.


The COVID-19 outbreak is simply one among the deadly pandemics that we've witnessed, but it probably will not be the last. The prison system within the country needs a huge overhaul at its roots to guard its prison population from another crisis in the future.


End Notes-

1] A.I.R 1978 S.C. 1514

2]Sunil Batra vs Delhi Administration, A.I.R 1980 S.C. 1579.

3] A.I.R 1950 S.C. 27.

4] A.I.R 1983 S.C. 378.

5] Contagion of Covid-19 virus in prisons – Order issued by the Hon’ble Supreme Court of India on 7.5.2021.



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