PUCL’s PIL seeks steps to improve prison facilities in Maharashtra, resume video conferencing

Basic technology in prisons should have been developed years ago, says founder of Prison Aid + Action Research Smita Chakraburtty, in response to the Bombay High Court's interim direction in the PIL

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ON June 20, a division bench of the Bombay High Court, comprising Chief Justice Dipankar Datta and Justice S.S. Shinde, in the case of People's Union for Civil Liberties & Anr. versus the State of Maharashtra & Ors., heard a public interest litigation [PIL] to resume telephone and video conferencing in all prisons in the state of Maharashtra, in order to facilitate the inmates to communicate with their families, friends, and lawyers. The voice or video calls were first allowed in 2020, during the first phase of the outbreak of the COVID-19 pandemic, when prison mulakats (physical meetings) were stopped in Maharashtra.

The court directed the state's Attorney General, Ashutosh Kumbakhoni, to visit prisons and submit an independent report. Drawing on the issue of overcrowded prisons and the need for the facilities to be updated, Justice Shinde remarked, "Those prisons have a capacity of 600 and there were over 3, 500 prisoners". Chief Justice ('CJ') Dipankar Datta observed, "You cannot have correctional homes with so many people in it…" The CJ also highlighted the need for technical specialists to look after the video conferencing facilities.

The PIL sought three main reliefs. Firstly, it prayed for the implementation of provisions for telephones or electronic modes of communication under clause 8.38 of the Model Prison Manual of 2016 in all prisons across Maharashtra that states that the Superintendent of Prisons may allow telephone or electronic modes of communication on payment. Secondly, it seeks to set aside directions that discontinue such forms of communication since they stand in violation of Articles 14, 19, and 21 of the Constitution. Thirdly, it sought directions to declare that the facilities of telephone and electronic communication fall under the scope of interviews as provided under the the Maharashtra Visitors of Prisons Rules, 1962.

Quoting the Supreme Court judgment in the case of Sunil Batra versus Delhi Administration (1980), the petitioners submitted that the withdrawal of call and video facilities resulted in an infringement of the inmates' constitutional rights. According to the petition, telephone facilities for inmates are envisaged under Section 59(28) of the Prisons Act, 1894, as well as under the notification dated February 12, 2019, as issued by the office of the Additional Director General of Police. It states that under a memo dated May 24, 2020, as issued by the Additional Director General of Police and Inspector General of Prisons and Correctional Services, Pune, Maharashtra, video conferencing facilities were provided for inmates.

The petition highlights that on April 20, 2021, the Bombay High Court issued directions to consider increasing the frequency of the calls for the inmates. In compliance with the directions, the prison authorities introduced video calling facilities for inmates in correctional homes as well as temporary facilities. Such telephone calls and video facilities were allowed to the inmates and were running smoothly.

The petitioners point out that the use of coin-box telephone facilities, that is, special telephone booths which can be operated with one Rupee coin, at the prisons has been extremely low. As a consequence, the prison authorities procured a considerable number of mobile phones. However, given the reduced number of infections, the respondents discontinued the facilities in November 2021. The petitioners contend that the third phase of the outbreak of the COVID-19 pandemic is intensifying, and that the physical meeting imposes unnecessary hardships on relatives and legal representatives of the inmates.

The petitioners submitted that the withdrawal of telephone or other electronic modes of communication is violative of inmates' constitutional right under Article 21 of the Constitution, particularly in view of the existing technology used during the pandemic. The petition also points out the arbitrary nature of the notification dated February 12, 2019, that excludes prisoners convicted for terrorism activities, sedition, Naxalism, gang wars, and organised crimes from using the coin-box telephone facility.

In view of several inmates and their relatives facing problems on account of the discontinuation of mobile phone services and the risk of the spread of COVID among inmates, the present PIL petition prayed for resuming telephone and video facilities for the inmates.

In reply to the petition, the Additional Director General of Police and Inspector General of Prison & Correctional Services, Maharashtra State, Pune, Sunil Ramanand, submitted on behalf of the respondents that the Model Prison Manual, 2016 is not adopted by the state of Maharashtra and hence, cannot be implemented for the management of prisons in Maharashtra. Further, it submitted that such management and superintendence in the state of Maharashtra is governed by the Maharashtra Prison Manual 1979, which does not provide for video-calling facilities for the prisoners.

The reply states that the video calling facilities were provided "…purely on compassionate and humanitarian grounds, as a result of extraordinary and unique situation, then at hand". It further states that the coin box facility has already been available at various prisons and its facility has been availed by prisoners across Maharashtra. Ramanand further contended that with the physical mulakats being resumed, family members and lawyers have started to meet the inmates physically.

In his reply, Ramanand referred to various security and practical difficulties in the continuation of the video calling facilities. The reply highlights the shortage of staff for monitoring audio-video calls. In respect of security aspects, the reply raised the concern of misuse of the audio and video facilities by the inmates to pressure the complainant or the witnesses, or to continue to monitor or control illegal activities. It also raises concerns about the lack of infrastructure for providing video-calling facilities and the resulting financial burden on the state.

The reply observed that since "Prisons" fall under the State List, according to the Seventh Schedule of the Constitution, it is the discretion of the first respondent, that is, the state of Maharashtra (Home Department), to decide whether or not to adopt the Model Prison Manual.

Finally, Ramanand's reply referred to the positive steps taken by the respondents for the implementation of the new e-Prison to facilitate electronic means of communication in prisons in Maharashtra. It also noted the steps taken by the respondents to upgrade the current facilities available for efficient management of the prisons.

Smita Chakraburtty, founder of Prison Aid + Action Research and honorary prison commissioner appointed by the Rajasthan Government, working to implement an open prison system in India, said, "Basic technology in prisons should have been developed years ago. During the pandemic, technology should have been optimised – not limiting the use of video conferencing for regular court production, but also introducing it for visitation." Chakraburtty explained that there are several procedural checks and balances in place that require the family members to engage in video conferencing with the inmates through authorised government agencies. According to Chakraburtty, such already existing infrastructure should be extended.

On the apprehension of the respondents on misuse of the facilities by the inmates, Chakraburtty remarks that such fears of the prison authorities are unfounded, and said, "This shows their lack of understanding of how basic technology works. How can a call be misused if it is done through an official source?". She said that with already available cost-effective technology and the state of Maharashtra having well-connected networks, it is important that the prison authorities get training in technology and use it for the benefit of the inmates. On the respondents' reply pointing out the lack of infrastructure to implement video conferencing, she claims it to be a "lack of application of mind to develop prison infrastructure"

According to Chakraburtty, technology can be used to address longstanding problems of overburdened institutions like prisons. For instance, according to her, technology can be employed to do away with producing prisoners in court for remand and bail hearings when there is a shortage of prison guards and a lack of vehicles. Besides, she also referred to the objective of eliminating paperwork that requires long periods of time.

Chakraburtty described the direction of the court requiring the Attorney General to visit prisons as a 'good step', and said, "such a visit should not be a one-off exercise, and should be done regularly and randomly". She stressed that such visits, including surprise inspections, should be regularised.