updates on in SMWP(C) 1/2020 provided below in chronological order

Suo Motu cognizance of potential contagion in prisons - 16.03.2020

In mid-March, the Court took suo motu judicial cognizance of the threat posed by the pandemic in prisons in India. In its 16 March Order, the Court acknowledged that ‘social-distancing’ – a critical measure in the fight against the spread of the disease– was difficult to enforce in the overcrowded Indian prisons.


In light of this, the Court directed that any prisoner diagnosed with COVID-19 virus should be immediately quarantined and subjected to medical treatment. The Court also expressed its appreciation for the measures taken by the Kerala Prisons Department as well as the authorities of Tihar jail for already initiating measures like testing new inmates and isolating them for a few days before they join the rest of the prison population.


The Court has directed the concerned authorities of all states to submit in writing the measures taken to prevent the possible spread of the disease among prisoners/juveniles. The matter is now expected to come upon 23 March.


Additional measures to contain the spread of COVID in prisons - 23.03.2020

It may be recalled that the Court had, on 16 March, expressed its apprehension over what may happen if COVID-19 were to affect the already overcrowded prisons and remand homes. In this regard, it had directed the relevant State Government and prison authorities to file a report with details of measures taken to contain a potential outbreak. 


On 23 March, the Court took stock of the reports filed and issued certain additional directions. It noted that State Governments had already taken substantive measures. Such measures include the creation of isolation wards, quarantine of new prisoners including prisoners of foreign nationality for a specific period, a preliminary examination of prisoners for COVID-19, ensuring the availability of medical assistance, scanning of staff and other service providers at entry points, sanitisation and cleanliness exercise of prison campus and wards, the supply of masks, barring or limiting of personal visits to prisoners, suspension of cultural and other group activities, awareness and training with regard to stoppage of transmission of COVID-19 and court hearings through video conferencing, among others.


After noting the measures already taken, the Court went on to issue certain additional directions. Some of the important directions include:

  • The physical presence of all the undertrial prisoners before the Courts to be stopped forthwith and recourse to video conferencing to be taken for all purposes.
  • Transfer of prisoners from one prison to another for routine reasons not to be resorted to, except for decongestion to ensure social distancing and medical assistance to an ill prisoner.
  • Prison specific readiness and response plans to be developed in consultation with medical experts.
  • A monitoring team to be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously


In order to address the issue of over-crowding, the Court directed the setting up of a High Powered Committee. Such committee shall consist of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation they are known, and (ii) Director-General of Prison(s). This committee will have the discretion to decide which class of prisoners can be released on parole or an interim bail for a period of time it finds appropriate.


Although the class of prisoners who may be released was left to the Committee's discretion, it gave certain broad guidelines which shall be taken into account while taking such a decision. For instance, the nature of the offence, the number of years to which he or she has been sentenced, the severity of the offence with which he/she is charged with and is facing trial may be taken into account. Furthermore, the Undertrial Committee set up by the Court in In re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700 shall meet every week and take appropriate decision on the question of interim bail and parole, in consultation with the High Powered Committee. 


States which have not yet filed their reports have been directed to file them within three weeks when the matter is expected to be heard again.  


Prisoners released - 13.04.2020

Last month, on 23 March, the Court directed all States/Union Territories to form High Powered Committees to 'determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.' The Court has expressed concern that the novel coronavirus may easily spread in overcrowded prisons. 


Today, on 13 April, Attorney General K.K. Venugopal submitted that 'prisoners have been released on the recommendation of the High Powered Committees except in the States of Delhi and Goa.' Additionally, the State of Bihar has refused to release any prisoners, saying that its prisons are 'not overcrowded and no prisoner is suffering from coronavirus'. Taking note of this - the State of Bihar's submissions in particular - the Court emphasised that it was not directing States/Union Territories to compulsorily release prisoners.


Attorney General K.K. Venugopal raised concerns over whether releasing and transporting prisoners may itself result in the transmission of the virus. In response, the Court issued certain guidelines regarding their release and transportation:

  • No prisoner suffering from COVID-19 shall be released
  • Released prisoners who are subsequently found to have COVID-19 shall be placed under quarantine
  • Transportation of released prisoners will be done in full compliance of 'the Rules and Norms of social distancing'. 


Foreigners in Detention Centres

The Court also heard an intervention application regarding prisoners who have been declared as foreign under the provisions of the Foreigners Act, 1946. This is of particular relevance to the State of Assam, which published a National Register of Citizens (NRC) and declared roughly 19 lakh residents as illegal foreigners. The current intervention application submits that there are currently 802 foreigners (under the Foreigners Act) in prisons.


The applicants sought for the release of persons who had served long periods of time in detention centres. In particular, it sought for the modification and implementation of the Court's order on 10 May 2019 in Supreme Court Legal Services Committee v. Union of India. In that order, the Court had directed the State of Assam to release detainees who had served a long time in detention centres awaiting deportation. The order outlines certain strict conditions for release, such as having served at least three years, producing a 1 lakh rupee bond and weekly reporting to a selected police station.


The applicants asked the Court to relax some of these conditions in light of the COVID-19 situation. In particular, they requested the Court to allow the release of prisoners who have been in detention for only two years. Further, it requested the Court to reduce the value of the bond from 1 lakh to 5,000 rupees. The bond must have two sureties of the specified sum. The Court agreed to these relaxations