On COVID-19, and those India imprisons

The COVID-19 pandemic has endangered the health of incarcerated people across the world. Some countries have been slowly emptying prisons in order to control the rise of internal cases. Meanwhile in Brazil (1) and Italy (2), prisoners organized mass-escapes. In India too, prisoners in Kolkata’s Dum Dum jail rioted against the negligence of authorities (3). A day after the riot was quelled, the Supreme Court ordered states and union territories to consider decongesting prisons by temporarily freeing prisoners (4). Even so, several men have fled from jails in Gujarat (5) and Punjab (6) since the country first went into lockdown. On March 25th, the day that phase 1 of the lockdown was announced, a Supreme Court instituted High-Powered Committee (HPC) in Maharashtra decided to release 11,000 incarcerated individuals on interim bail or parole (7).

Over a month later, Dilip Apet who is confined in Harsool Central Jail along with three under-trial prisoners in Osmanabad District Prison petitioned the Supreme Court stating that the state government has taken little to no action on the matter (8). The HPC consequently decided that almost 18,000 prisoners will be conditionally released (9). On May 26th, the People’s Union for Civil Liberties (PUCL) along with lawyers Archana Rupwate and Afreen Khan filed a PIL demanding that Maharashtra government disclose details about the onset of COVID-19 inside prisons (10). The PIL pointed out that authorities have failed to communicate any information on the health of those inside to their families, especially now that people can no longer make visits to prisons. A 40 year old man, who was released on parole in March, spoke to the Wire about the horrific conditions of Raigad’s Taloja Jail describing it as a “hell-hole” (11). At Thane Jail, a pregnant woman was tested positive for COVID-19 and will likely have to return to the jail once her treatment at Thane Civic Hospital concludes (12). Despite all this and more, as of May 22nd only 8,381 out of the state’s incarcerated population of 35,239 have been given emergency bail or parole (13). The remaining continue to languish in some of the most overcrowded and injurious jails in the country.

The fact that the burden of obtaining bail has been placed on those in custody has slowed the process considerably. If the NCRB statistics (14) are taken as fact, Maharashtra had 35,884 incarcerated people in 2018, the fourth-highest in the country. Over 70% of them were under-trial prisoners. There were 8,908 categorized as ‘convict’. 6,197 of them were SC/ST/OBC while over 1000 of all convicted people were not from Maharashtra. Almost half of the convicted population is non-Hindu. Over 5,000 of those awaiting trial were from other states and UTs. An additional 500 people were from different countries (most commonly- Bangladesh, Pakistan, Nepal, and Nigeria). Maharashtra Government provided no information on the caste background of under-trial prisoners. Over 1,500 women were incarcerated across Maharashtra, about 1200 of whom were under-trial prisoners. Of the 1200 women, 89 were mothers whose children were confined with them. There were reportedly a total of 117 children in the state’s jails as of December 2018.

Despite the heightened vulnerability of everyone incarcerated, trial courts in Maharashtra are consistently rejecting bail applications (13) with Bombay High Court’s Judge Badar going so far as to claim that granting bail right now would “[amount to] breaching the order of complete lockdown” (15). In part, this unjust incarceration might be the outcome of a set of six bail conditions that went into permanent effect across the state’s judiciary in February of this year (16). The addendum rules (17) for allowing bail which were first proposed in 2010 to objection from some activists and lawyers make mandatory, among other things, the submission of a list including the residential and (if applicable) workplace addresses of the applicant’s three blood relatives. The court also demands any two documents from the following:

1. Bank Passbook

2. Passport

3. Credit Card with photograph

4. Ration card

5. Electricity bill

6. Landline telephone bill

7. Voter ID card issued by the Election Commission of India.

8. Property Tax Register

The person will also have to physically report once a week to the police station designated for their case and once a month to the court that has granted them bail. Bail is summarily prohibited for those who are arrested after failing to appear for trial dates (unless proven as having ‘special circumstances’).

It’s unclear to me whether these conditions have been relaxed. In 2010 Mumbai Mirror interviewed lawyers opposing their implementation (18). Many emphasized that these rules will cause significant hardships for workers who migrate from other states and impoverished people in Maharashtra who would not have easy access to documents or the documents themselves. The severity of these hardships would only be exacerbated during the lockdown. How is it possible for people who have yet to see wages from March to procure the amount decided by magistrates to pay as bail bond? Are migrants not being granted bail because they might choose to return home? Many more questions persist.

To be clear, release does not mean freedom. Those who manage to obtain bail will be released only for 45 days or until the Epidemics Act is revoked (19). Their incarceration will continue. They have to survive the pandemic’s dangers, the central government’s apathy, the discriminatory practices of state governments, and the violence of Maharashtra’s police force. It is those forced to have nothing who will continue to be entrapped in the cycle of incarceration.

I started writing this after a conversation with Sitamsini about the high number of under-trial prisoners in India.