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Health Rule of Law

Bom HC directs state to follow ICMR guidelines in temporary prisons; asks to adopt random testing

The bench headed by the Chief Justice dealt with many issues pertaining to health of prisoners in the light of COVID19 and issued certain directions to ensure that guidelines of COVID19 are followed in prisons as well

Sanchita Kadam 03 Jul 2020

prisioner

The Bombay High Court, on July 2, has pronounced its judgment on hearing a batch of petitions concerning the health of prisoners in correctional homes and temporary prisons. It has issued a slew of directions to prisons and in most issues raised by the petitioners accepted the state submissions that adequate steps are being taken since the state had accepted many of the recommendations put forth by these petitioners.

The judgment comes in a batch of petitions, a prominent one being filed by People’s Union for Civil Liberties (PUCL) and pleaded by Senior Advocate Mihir Desai.

At the outset, the court stated,

“In fairness to all the Counsel appearing, it must be mentioned that none of the parties treated these Petitions as adversarial in nature. The suggestions made on behalf of the Petitioners were duly considered by the Respondents whereafter the document which refers to the measures to be undertaken by the State Government is placed on record by the learned Advocate General. Even some of the suggestions made by the learned Senior Counsel appearing on behalf of the PIL Petitioners came to be accepted by the State during the course of this hearing.”

In its previous orders, the bench headed by Chief Justice Dipankar Dutta, had commented on the “sorry state of affairs” in prisons while dealing with COVID crisis. This comment was made after the report submitted by the Additional Director General of Prisons (ADG) stated that there was “insufficient space for quarantining those inmates of correctional homes, who test positive”.

In its judgment, the bench comprising Chief Justice Dipankar Dutta and Justice MS Karnik, noted how the apex court had observed  In Re : Contagion of Covid -19 Virus in Prisons Suo Motu Writ Petition (Civil) No.1 of 2020 that the “issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19)”. The various concerns raised in the petitions have been dealt with in previous orders in the case and were reiterated in this judgment.

Pending bail applications

About the issue of a large number of pending bail applications, the court had sought particular data from the lower courts and had held thus,

“we are of the opinion that the relevant courts are not supposed to act as mere post-ofces and allow applications without application of mind. We have no doubt in our mind that in the light of the guidelines issued by the High Powered Committee, the relevant courts, to the best of its ability and with the resources available at its disposal, have been striving to take appropriate steps to dispose of as many applications for bail as possible in accordance with law and in the light of the guidelines of the High Powered Committee. No direction as such is required to be made, since we hope and trust that no application for bail shall be kept pending unnecessarily."

Communication of inmates with family members

On the lack of procedure to inform families of prison inmates after they are tested positive, the public prosecutor had submitted that in such cases, the families will soon be duly informed and hence the court refrained from issuing any further directions trusting that the submission made by the state would be duly honoured.

Further, since meeting of prison inmates with their families could not be facilitated in the as it ran the risk of spreading infection, Mr. Desai had pushed for video calls and until they are commissioned, provision of regular phone calls. The court held thus,

“an additional facility of allowing the inmates to reach out to their family members/relatives by making phone calls could be allowed till such time Video Conferencing facilities are commissioned and even thereafter, if there is lack of connectivity. The number of phone calls per week per inmate, the duration of the phone calls and the days on which the same may be allowed are left entirely to the discretion of the Correctional Home authorities.”

Money for inmates’ expenses

The court had in one of its previous orders directed that as per circular dated April 8, 2020 a bank account should be operationalised and details of the same be provided so that family members can deposit money in the same which can then be used by the particular inmate.

New state guidelines

After the court asked the state to provide a proper plan for prisons and containment of COVID19 in prisons, a document was submitted in court detailing the guidelines issued to prisons in the state; some of which are mentioned below:

  • Collectors of 297 districts throughout the State of Maharashtra have declared 36 locations as temporary prisons. In other revenue Districts steps are being taken to declare appropriate places accordingly, as temporary prisons. These premises are being used for decongesting the prisons. Such places declared as Temporary prisons shall also be used as 'Quarantine Centre' and 'Covid Care Centre' by providing proper partitioning and required facilities.

  • These 'Quarantine Centres' and 'Covid Care Centres' forming part of these temporary jails shall maintain, amongst others, relevant record of every inmate, relating to his or her health condition relating to the infection of Corona virus

  • In all prisons of the State, every inmate shall be examined daily with a thermal scanner.

  • At each such 'Covid Care Centre' further action is to be taken, as per the advice of doctor, on Covid testing. Further, action is to be taken in terms of the ICMR and other guidelines issued from time to time, for treating such inmate and for consequent further course.

  • If inmate as above is tested positive then further contact tracing and their categorisation is required to be done.

  • Every 'High Risk' inmate shall be institutionally quarantined in the aforesaid temporary prisons declared by Collectors

  • To take care of inmates, above the 60 years of age, as they are more susceptible to the Covid infection, as far as possible, a separate arrangement shall be made, inside the prison itself

  • For all the inmates above 60 years, shall be medically examined by organising special screening to find comorbid conditions like diabetes, hypertension, cancer, heart ailment etc.

After perusal of these guidelines, Mr. Desai presented some further suggestions for the consideration of the state such as:

  • Where any inmate has been diagnosed as COVID positive, all the prisoners and staff from such correctional facilities (temporary prisons included) must be tested.

  • random testing should be periodically conducted in all the correctional facilities (temporary prisons included) to enable prison authorities to take preventive measures in time.

  • Every inmate should be allowed one call (video/phone) per week to contact their family members and/or lawyers for 10 minutes.

  • Family members and lawyers of prisoners should be immediately informed of any transfer of the inmate from one facility to another.

  • Given the lack of information in the public domain, the state should upload information, with regards to the prison and its inmates, once every week on the e-prisons website.

The state accepted many of these suggestions made by Mr Desai and other petitioners, such as testing of staff members, dedicated e-mail ID for lawyers for taking appointment with their inmate-clients, spreading awareness among inmates on the importance of preventive measures and hygiene, women inmates to be provided with sanitary napkins for free and proper hygiene, telephone facility in temporary prisons as well and so on.

When the state submitted that from the point of view of security in temporary prisons, it may be difficult to implement ICMR guidelines in toto there, the court held,

“We are of the opinion that as it is a matter of health and wellbeing of the inmates, the guidelines of the ICMR need to be followed even in respect of the temporary prisons without compromising in any manner the security concerns. Any deviation from the guidelines issued by the ICMR in respect of the temporary prisons can only be on account of security concern or under some exceptional circumstance.”

The court accepted the state’s submission that it may not be possible to conduct testing of every in mates but at the same time added that “whenever an inmate shows signs of any physical discomfort or complains of such discomfort like cough, cold, etc. such inmate should be immediately tested.”

One of the other petitioners had challenged the categorization of convicts who can be considered for release on parole, as done by the High Powered Committee formed under the directions of the Supreme Court. The court stated that “A reading of the orders of the Apex Court leaves no manner of doubt that it is for the HPC to determine the category of the prisoners, which the Committee may consider appropriate to release in the light of the observations made by the Apex Court….In our opinion, in view of the clear mandate of the Apex Court, it is for the HPC to determine the category of the prisoners who should be released. It would therefore not be permissible for this Court to entertain a Petition against the determination by the HPC unless a clear case of transgression of the prisoners’ rights is made out.”

The court further said, “In our opinion, determination of the categories by the HPC under these circumstances to release certain prisoners does not confer any right on the PIL Petitioners to contend that similar indulgence may be shown to them or similar such concessions be extended to them. The PIL Petitioners therefore cannot claim any legal right on the basis of categorisation made by the HPC.”

The operative part of the judgment is mentioned below in brief:

  1. All interim orders passed thus far be complied with full by the state government

  2. The new guidelines/measures submitted by the state by strictly implemented across all prisons in the state

  3. The suggestions of the petitioners accepted by the Advocate General to be complied with immediately

  4. Every possible endeavour shall be made by the Prison Authorities to scrupulously follow the guidelines issued from time to time by the ICMR, Central Government as well as State Government and its authorities regarding the safety measures

  5. The prison authorities are directed to refer any inmate for testing in case of any signs of physical discomfort

  6. The Respondents are directed to notify the details of the 37 temporary prisons on the website and apart from maintaining the record; family members/ close relatives of the inmate shall be immediately informed about his or her health condition relating to the infection of the Corona virus.

  7. the prison authorities are directed to forthwith implement the measures for random testing

  8. State shall endeavour to deploy sufficient/ additional staff at the correctional homes and temporary jails

  9. correctional homes/temporary prisons shall abide and comply with the guidelines issued by the Public Health Department of the State Government dated June 29, 2020.

  10. We accept the assurance of the learned Advocate General on behalf of the State that the SOP for the wellbeing, safety and precautionary measures will be revised from time to time at regular intervals after seeking opinion of the experts in the field of medicine and health care.

The PIL was thus disposed off.

The complete judgment can be read here.

 

Related:

“A very sorry state of affairs,” says Bombay HC on health status of prison inmates in the state

Bombay HC seeks data on pending bail applications from district courts

COVID-19 and the Indian Supreme Court

Bom HC directs state to follow ICMR guidelines in temporary prisons; asks to adopt random testing

The bench headed by the Chief Justice dealt with many issues pertaining to health of prisoners in the light of COVID19 and issued certain directions to ensure that guidelines of COVID19 are followed in prisons as well

prisioner

The Bombay High Court, on July 2, has pronounced its judgment on hearing a batch of petitions concerning the health of prisoners in correctional homes and temporary prisons. It has issued a slew of directions to prisons and in most issues raised by the petitioners accepted the state submissions that adequate steps are being taken since the state had accepted many of the recommendations put forth by these petitioners.

The judgment comes in a batch of petitions, a prominent one being filed by People’s Union for Civil Liberties (PUCL) and pleaded by Senior Advocate Mihir Desai.

At the outset, the court stated,

“In fairness to all the Counsel appearing, it must be mentioned that none of the parties treated these Petitions as adversarial in nature. The suggestions made on behalf of the Petitioners were duly considered by the Respondents whereafter the document which refers to the measures to be undertaken by the State Government is placed on record by the learned Advocate General. Even some of the suggestions made by the learned Senior Counsel appearing on behalf of the PIL Petitioners came to be accepted by the State during the course of this hearing.”

In its previous orders, the bench headed by Chief Justice Dipankar Dutta, had commented on the “sorry state of affairs” in prisons while dealing with COVID crisis. This comment was made after the report submitted by the Additional Director General of Prisons (ADG) stated that there was “insufficient space for quarantining those inmates of correctional homes, who test positive”.

In its judgment, the bench comprising Chief Justice Dipankar Dutta and Justice MS Karnik, noted how the apex court had observed  In Re : Contagion of Covid -19 Virus in Prisons Suo Motu Writ Petition (Civil) No.1 of 2020 that the “issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19)”. The various concerns raised in the petitions have been dealt with in previous orders in the case and were reiterated in this judgment.

Pending bail applications

About the issue of a large number of pending bail applications, the court had sought particular data from the lower courts and had held thus,

“we are of the opinion that the relevant courts are not supposed to act as mere post-ofces and allow applications without application of mind. We have no doubt in our mind that in the light of the guidelines issued by the High Powered Committee, the relevant courts, to the best of its ability and with the resources available at its disposal, have been striving to take appropriate steps to dispose of as many applications for bail as possible in accordance with law and in the light of the guidelines of the High Powered Committee. No direction as such is required to be made, since we hope and trust that no application for bail shall be kept pending unnecessarily."

Communication of inmates with family members

On the lack of procedure to inform families of prison inmates after they are tested positive, the public prosecutor had submitted that in such cases, the families will soon be duly informed and hence the court refrained from issuing any further directions trusting that the submission made by the state would be duly honoured.

Further, since meeting of prison inmates with their families could not be facilitated in the as it ran the risk of spreading infection, Mr. Desai had pushed for video calls and until they are commissioned, provision of regular phone calls. The court held thus,

“an additional facility of allowing the inmates to reach out to their family members/relatives by making phone calls could be allowed till such time Video Conferencing facilities are commissioned and even thereafter, if there is lack of connectivity. The number of phone calls per week per inmate, the duration of the phone calls and the days on which the same may be allowed are left entirely to the discretion of the Correctional Home authorities.”

Money for inmates’ expenses

The court had in one of its previous orders directed that as per circular dated April 8, 2020 a bank account should be operationalised and details of the same be provided so that family members can deposit money in the same which can then be used by the particular inmate.

New state guidelines

After the court asked the state to provide a proper plan for prisons and containment of COVID19 in prisons, a document was submitted in court detailing the guidelines issued to prisons in the state; some of which are mentioned below:

  • Collectors of 297 districts throughout the State of Maharashtra have declared 36 locations as temporary prisons. In other revenue Districts steps are being taken to declare appropriate places accordingly, as temporary prisons. These premises are being used for decongesting the prisons. Such places declared as Temporary prisons shall also be used as 'Quarantine Centre' and 'Covid Care Centre' by providing proper partitioning and required facilities.

  • These 'Quarantine Centres' and 'Covid Care Centres' forming part of these temporary jails shall maintain, amongst others, relevant record of every inmate, relating to his or her health condition relating to the infection of Corona virus

  • In all prisons of the State, every inmate shall be examined daily with a thermal scanner.

  • At each such 'Covid Care Centre' further action is to be taken, as per the advice of doctor, on Covid testing. Further, action is to be taken in terms of the ICMR and other guidelines issued from time to time, for treating such inmate and for consequent further course.

  • If inmate as above is tested positive then further contact tracing and their categorisation is required to be done.

  • Every 'High Risk' inmate shall be institutionally quarantined in the aforesaid temporary prisons declared by Collectors

  • To take care of inmates, above the 60 years of age, as they are more susceptible to the Covid infection, as far as possible, a separate arrangement shall be made, inside the prison itself

  • For all the inmates above 60 years, shall be medically examined by organising special screening to find comorbid conditions like diabetes, hypertension, cancer, heart ailment etc.

After perusal of these guidelines, Mr. Desai presented some further suggestions for the consideration of the state such as:

  • Where any inmate has been diagnosed as COVID positive, all the prisoners and staff from such correctional facilities (temporary prisons included) must be tested.

  • random testing should be periodically conducted in all the correctional facilities (temporary prisons included) to enable prison authorities to take preventive measures in time.

  • Every inmate should be allowed one call (video/phone) per week to contact their family members and/or lawyers for 10 minutes.

  • Family members and lawyers of prisoners should be immediately informed of any transfer of the inmate from one facility to another.

  • Given the lack of information in the public domain, the state should upload information, with regards to the prison and its inmates, once every week on the e-prisons website.

The state accepted many of these suggestions made by Mr Desai and other petitioners, such as testing of staff members, dedicated e-mail ID for lawyers for taking appointment with their inmate-clients, spreading awareness among inmates on the importance of preventive measures and hygiene, women inmates to be provided with sanitary napkins for free and proper hygiene, telephone facility in temporary prisons as well and so on.

When the state submitted that from the point of view of security in temporary prisons, it may be difficult to implement ICMR guidelines in toto there, the court held,

“We are of the opinion that as it is a matter of health and wellbeing of the inmates, the guidelines of the ICMR need to be followed even in respect of the temporary prisons without compromising in any manner the security concerns. Any deviation from the guidelines issued by the ICMR in respect of the temporary prisons can only be on account of security concern or under some exceptional circumstance.”

The court accepted the state’s submission that it may not be possible to conduct testing of every in mates but at the same time added that “whenever an inmate shows signs of any physical discomfort or complains of such discomfort like cough, cold, etc. such inmate should be immediately tested.”

One of the other petitioners had challenged the categorization of convicts who can be considered for release on parole, as done by the High Powered Committee formed under the directions of the Supreme Court. The court stated that “A reading of the orders of the Apex Court leaves no manner of doubt that it is for the HPC to determine the category of the prisoners, which the Committee may consider appropriate to release in the light of the observations made by the Apex Court….In our opinion, in view of the clear mandate of the Apex Court, it is for the HPC to determine the category of the prisoners who should be released. It would therefore not be permissible for this Court to entertain a Petition against the determination by the HPC unless a clear case of transgression of the prisoners’ rights is made out.”

The court further said, “In our opinion, determination of the categories by the HPC under these circumstances to release certain prisoners does not confer any right on the PIL Petitioners to contend that similar indulgence may be shown to them or similar such concessions be extended to them. The PIL Petitioners therefore cannot claim any legal right on the basis of categorisation made by the HPC.”

The operative part of the judgment is mentioned below in brief:

  1. All interim orders passed thus far be complied with full by the state government

  2. The new guidelines/measures submitted by the state by strictly implemented across all prisons in the state

  3. The suggestions of the petitioners accepted by the Advocate General to be complied with immediately

  4. Every possible endeavour shall be made by the Prison Authorities to scrupulously follow the guidelines issued from time to time by the ICMR, Central Government as well as State Government and its authorities regarding the safety measures

  5. The prison authorities are directed to refer any inmate for testing in case of any signs of physical discomfort

  6. The Respondents are directed to notify the details of the 37 temporary prisons on the website and apart from maintaining the record; family members/ close relatives of the inmate shall be immediately informed about his or her health condition relating to the infection of the Corona virus.

  7. the prison authorities are directed to forthwith implement the measures for random testing

  8. State shall endeavour to deploy sufficient/ additional staff at the correctional homes and temporary jails

  9. correctional homes/temporary prisons shall abide and comply with the guidelines issued by the Public Health Department of the State Government dated June 29, 2020.

  10. We accept the assurance of the learned Advocate General on behalf of the State that the SOP for the wellbeing, safety and precautionary measures will be revised from time to time at regular intervals after seeking opinion of the experts in the field of medicine and health care.

The PIL was thus disposed off.

The complete judgment can be read here.

 

Related:

“A very sorry state of affairs,” says Bombay HC on health status of prison inmates in the state

Bombay HC seeks data on pending bail applications from district courts

COVID-19 and the Indian Supreme Court

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