One of the first issues that the Supreme Court of India dealt with when the lockdown was declared was the issue of releasing prisoners to prevent the spread of the Covid-19. However, the issue of custody in jail remains a problem with the jails not equipped to deal with the testing of prisoners.
THE seed of Common Law in the world was sown by William- The Conqueror following the Norman Conquest in 1066. The King, when travelling throughout his realm, would comprise of his Curia Regis and would dispense justice sitting on his 'Bench', which later came to be called Kings Bench. Following the era of William, the Empire went through turbulent times until Henry-II took over. The new King in order to establish control over all of his Empire established a uniform legal system where Judges were sent on a circuit from London, while a few Judges remained at Westminster Palace and came to form the King's Bench.
Speaking about the issue of bail, Justice V.R. Krishna Iyer in Moti Ram v. State of Madhya Pradesh [1979 SCR (1) 335] beautifully explains- 'The concept of Bail has a long history and deep roots in English and American Law. In Medieval England, custom grew out of the need to free untried prisoners from disease ridden jails while they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or delivered to reputable third parties on their own choosing who accepted responsibility for assuring their appearance at trial. If the accused did not appear, the Bailor would stand trial in his place. Eventually it became a practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial'.
The architects of our Founding Document brought Liberty to the center stage by mandating that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The Hon'ble Supreme Court of India in Maneka Gandhi v. Union of India held that a person's liberty could be curtailed only when (1) there is a law (2) that law must have a procedure (3) the procedure must be just, fair and reasonable (4) procedure must answer the requirement of Article 14. Arrest is the deprivation of a person's personal liberty. The law relating to arrest has been set out in CrPC and other laws. In India, a woman cannot be arrested in execution of a civil decree, however, no such bar applies to a criminal case.
Let us come to facts. Covid-19 pandemic posed serious challenges all across the world and Government of India adopted lockdown measures, initially for one day on 22.3.202o and thereafter from 24.03.2020.
In the light of Covid-19 pandemic, Supreme Court of India by its order on March 23 in Suo Motu Writ Petition (C) NO. 1/2020 asked all the states to form a high power committee comprising of Chairman of State Legal Service Authority, Home Secretary to Government and Director General of Prisons to consider various steps to de-congest the prisons. Supreme Court further asked to consider releasing all prisoners facing sentences of up to 7 years in order to decongest the prisons. Supreme Court also mentioned the steps taken by various other States. State of Kerala along with Karnataka, Telengana and Haryana submitted that they have adopted screening of prisoners returning from Parole to prevent possible transmission.A Full Bench of High Court of Kerala on March 30, taking cue from the Supreme Court decision, granted bail to under trial/remand prisoners who face accusation of having committed offences punishable up to 7 years or less. It further held that the interim order granted shall continue till April 30 or till the end of lockdown period, whichever is earlier. The High Court later extended the interim order till May 18, when the High Court opened after mid-summer vacations.
Though the lockdown saw a significant drop in crime rate in Kerala, especially theft, rape, kidnapping and cheating cases; no such drop is seen in murder cases, as per the quarterly report by State Crime Record Bureau. A spike in Abkari offences due to the absence of Liquor shops was also seen.
The Constitution in Art.22 (2) says that the arrestee must be produced in front of a Magistrate within 24 hours of his arrest and his further detention in police custody is prohibited sans the order of a Magistrate. The Bail court can either enlarge the arrestee on Bail or remand the accused to jail or handover him to police for custodial interrogation. When the laws remaining so, all the persons remanded to jails by various Magistrates through judicial orders remained in police custody illegally for hours. The root cause of this issue was an executive circular.
The Director General of Prisons issued a Circular on May 16 to the heads of all Prisons and Correctional institutions in Kerala directing that Remand prisoners shall be admitted to jail only on the production of Covid-19 negative certificates. This circular is in violation of Section 30 (6) of The Kerala Prisons and Correctional Services (Management) Act, 2010 where the duty is cast upon the Medical Officer of the prison to examine whether the prisoner, after admission, suffers from any infectious disease and if found so, he shall be referred to a Government Hospital. The tests for Covid-19 in Kerala are run by 14 government labs and 6 private labs. Private labs are very costly and Government run testing centers can only test patients according to the protocol set by Government of Kerala from time to time. A patient cannot walk in, test for Covid-19 and walk back with the test result in minutes.
What the public witnessed in Kerala was scenes where those remanded by judicial magistrates to jails being rounded up in police vans and buses for up to 24 hours. The reason being, their Covid-19 test is not yet out and the Jail DGP's circular states that unless it is obtained, they can't be admitted in prisons. Criminal justice system was taken for a ride.
The practical solution that ought to have been implemented by prisons department should have been (A) earmark certain wards in jails as isolation centers or (B) making arrangements for conducting Covid-19 tests in the jails at the time of admission or (C) designating certain other institutions as special jails to lodge new admissions, i.e. remand prisoners.
Although the steps taken by the State of Kerala in screening of prisoners is appreciated by the Supreme Court, the ground reality is that our prisons are ill-equipped to meet an exigency. The failure of Government in dealing with the pandemic situation by providing necessary measures in jails has resulted in frustrating the mandate of criminal procedural code and judicial orders. Urgent remedial measures are necessary as otherwise, this will have the effect of an executive circular overriding a judicial order, which is not permissible.
(The author is a lawyer practicing before High Court of Kerala)
Note: This is an opinion piece, and the views expressed are the author's own.