While the doors of most courts in India have been shut in view of the pandemic, India’s already overcrowded prisons are still receiving inmates.

Safoora ZargarSafoora Zargar
news Coronavirus Tuesday, June 09, 2020 - 17:50

On the afternoon of April 10, officials from the Delhi police reached the home of a 27-year-old Jamia Millia Islamia student to question her about the deadly Delhi riots in February. Safoora Zargar, who had participated in protests against the controversial Citizenship Amendment Act, was taken to the police station and was arrested that night. Jailed in Delhi’s overcrowded Tihar jail for allegedly sparking riots and charged under the draconian UAPA, Safoora is now at risk — from possible complications from being in her fifth month of pregnancy, as well as her vulnerability to the coronavirus infection.

India has seen a steady rise in COVID-19 cases, and the country’s prisons have repeatedly been flagged as possible hotspots of infection. The Union Health Ministry has already identified densely-populated closed spaces as sensitive spots where infection may spread, and India’s jails are no different. The Aurangabad jail has seen 29 inmates test positive and Mumbai’s Arthur Road Jail has around 80 inmates who are positive. At Tihar jail, notorious for its crowded confinement, the infection threatens to spread as well. 

Two weeks ago, the daughters of Telugu poet Varavara Rao wrote a letter seeking that their 79-year-old father be released, voicing fear that he may get infected with coronavirus while in prison. Varavara has been in jail since 2018 based on allegations that he was part of a group that was conspiring to kill Prime Minister Narendra Modi. Two days after they wrote a letter, the writer, who is in judicial custody in Maharashtra in the Bhima Koregaon case, was taken to hospital, where he is currently stable. 

Most of the accused in the same Bhima Koregaon case — Anand Teltumbde, Sudha Bharadwaj, Gautam Navlakha, Shoma Sen — are charged under the UAPA and for ‘waging war against the nation’ and are lodged in various jails. Most of them are aged above 60, an age group that is most vulnerable to the COVID-19 infection. 

These individuals, even those accused in the Delhi riots, are undertrials, which means they have not been proven guilty of committing the crimes of which they are suspected. While the doors of most courts in India had been shut in view of the pandemic, India’s already overcrowded prisons began to receive more inmates as arrests continued unabated during lockdown. India’s jails are already at 117.6%, as per NCRB data from 2018, and the data also shows that almost 70% (69.41%) of those lodged in India’s prisons are undertrials. 

20-year-old student Amulya Leona is still in a jail in Bengaluru, ever since she was arrested for saying 'India Zindabad, Pakistan Zindabad...' and whisked away from the stage at AIMIM Chief Asaduddin Owaisi's rally three months ago. Since then, multiple bail pleas have been denied, and the Karnataka government has given bizarre submissions, like 'she is an influential person and may influence witnesses.' Three Kashmiri students in Bengaluru arrested for allegedly raising Pakistan slogans continue to remain in jail despite the fact that the Karnataka High Court said there is prima facie no case of sedition. The rights of undertrials are vastly curtailed, and ought to be reconsidered especially in the unprecedented times that we currently face. Incidentally, the accused now becoming a flight risk and fleeing to another country is negligible, as international travel is restricted.

The Law Commission of India has noted in a 2017 report titled Provisions Relating to Bail, “In the case of the Supreme Court Legal Aid Committee Representing Undertrial Prisoners, the Supreme Court held that unduly long periods of under-trial incarceration violates Articles 14 and 21 of the Constitution. For this reason, the Court directed that if the accused person has served half the maximum sentence specified for the offence for which he has been charged, he should be released on bail, subject to fulfilling the conditions of bail imposed on him.”

Perhaps the fact that these people mentioned above have been charged under the stringent UAPA [Unlawful Activities (Prevention) Act] may be cited to counter these arguments, but in the same report, the Law Commission of India itself had stated that even under the UAPA, if it cannot be proved that the accused may hamper the investigation or is at a risk of absconding, the person should be held eligible for release. 

“If the prosecution cannot show through evidence that the person accused of an offence is at the risk of absconding, or is likely to interfere with the judicial process, or is likely to commit the same offence, the accused person should be considered eligible for release, without or with such financial obligations that are not excessive or onerous,” the report by former Supreme Court judge Justice BS Chauhan stated. 

The Law Commission of India had also noted that "the mere classification of an act as an act of terrorism should not result in the automatic denial of bail or reversal of the burden of proof.”

“A contextual construction of the provisions in the laws and the Constitution of India shows that the sovereign function of maintenance of national security vested with the State is its paramount function. However, mere classification of an act as an act of terrorism should not result in the automatic denial of bail or reversal of the burden of proof. Denial of bail should not be used as a potential tool of manipulation to legitimizing actions of the State,” it added.

Over the past month, based on the Supreme Court’s March 2020 order on the decongestion of jails, several undertrials, who were charged with offenses with punishments up to seven years, were released from jails across the country. Now people like Safoora, Amulya and Varavara Rao may be booked under much more serious charges with the UAPA, but it must be noted that the court had said in March that under the provisions of Article 21 of the Constitution, it has become "imperative to ensure that the spread of coronavirus within the prisons is controlled.” According to news reports, thousands of prisoners have been released on parole or bail to decongest crowded prisons to try and halt the spread of the infection in closed settings, but the same rights have not been granted to all. 

Views expressed are author's own.

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