Does India uphold Prisoners’ Right to Health?

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Shortly after national lockdown was declared on March 24, in light of Covid-19 being declared a pandemic, the Supreme Court had issued certain directions keeping in mind the risk faced by inmates of prisons all across the country. High Powered Committees were directed to be instituted at state level which could decide on categories of prisoners who can be released on emergency parole, convicted of less serious offences, prisoners prone to contracting the disease due to co-morbidities of old age and so on. Such committees were constituted and prisoners were in fact released to ease the burden of over-crowded prisons where it would be impossible to implement social distancing norms.

The right to health of prisoners was clearly given primacy by the judiciary in times of a pandemic which is a laudable move. But what happens to this Right to Health of prison inmates when there is no pandemic?

The recent case of political prisoner Varavara Rao, aged 79, who is an under trial in a case for allegedly instigating caste-based violence in Bhima Koregaon, Pune, has brought this discourse to the fore. Usually, rights of prisoners neither become a part of daily discourse or news channel debates, nor do they find a place in dinner table conversations. Let us explore how the prisons in Maharashtra treat prisoners who fall ill during their prison stay.

The case for Varavara Rao

On July 13, Rao was urgently shifted to JJ Hospital from Taloja Jail as his condition began worsening. According to his family Rao had been incoherent and too weak to even sustain a phone call the last time they spoke. This had alarmed them to the extent that they urgently called a video press conference on Sunday and appealed once again that he be rushed to a proper hospital and given urgent medical care he needed.

The family states that they were not even informed that Rao had been shifted to JJ hospital and only came to know from a senior leader who had been appealing to Maharashtra government to intervene before Rao’s health took a turn for the worse. The family is apprehensive that Rao may once again be given basic treatment and then sent back to jail soon. They recall that he had been admitted at the same hospital on May 28 evening but was hurriedly discharged on June 1 and sent back to jail with a ‘comment’ that “his health is steady and all vitals normal”, despite that not being true.

Keeping in view Rao’s fragile health and advanced age that puts him, and others still in jail, at great risk which is increased due to the Covid-19 pandemic.

His bail plea is up for hearing on July 17 before the Bombay High Court.

Case in point: Maharashtra

The Maharashtra prison Manual Chapter 4 deals with provisions related to “Prison hospital” and is called the ‘the Maharashtra Prisons (Prison Hospital) Rules, 1970’. There are ample provisions in these rules to ensure that prisons are liveable and conducive to a healthy human living. The truth however, is that prison conditions in the country remain deplorable to a large extent.

A Medical Officer who is supposed to be stationed at the prison has numerous duties, such as checking quality of drinking water, checking whether cells are fit for occupation by prisoners, visit prison cells daily to check on inmates, supervise work of Junior medical officers and so on.

There is also provision related to the diet of prisoners whereby under Section 1 Rule 3(24) the Medical Officer is required to sign orders for extra diet and other articles required for sick prisoners whether in or out of the hospital and recommend a change in diet if needed for a sick prisoner. The Medical Officer is also supposed to keep in check the sanitary conditions of prisons which tend to have an effect on the health of prisoners in general.

Further, under Section 1 Rule 3(34) a Medical officer has the power to decide whether a prisoner may be released on medical grounds if the prisoner’s condition justifies immediate release on medical grounds. Under Section 1 Rule 3(11) the Medical officer is bound to transfer urgent cases requiring immediate surgical or other treatment which cannot be given in the prison hospital to a Civil Hospital.

The non-statutory rules which come under Section 2 make provisions for even weak, convalescent and old prisoners. The Rule 5 of Section 2 states that prisoners who have attained old age and are weak should be kept separate from other prisoners, should be allowed a different diet and other suitable arrangements are to be made for them. When a prisoner is admitted to a prison hospital, his expenses are incurred by the state and if he is shifted to Civil Hospital, the same applies.

Thus, these rules for ensuring that the health of prisoners is maintained look good on paper but do not find absolute strict implementation on the ground.

Model Prison Manual, 2016

This Manual released by the Ministry of Home Affairs enumerates rights of prisoners which includes health under ‘right to basic minimum needs’ which states that prisoners have “Right to fulfillment of basic minimum needs such as adequate diet, health, medical care and treatment, access to clean and adequate drinking water, access to clean and hygienic conditions of living accommodation, sanitation and personal hygiene, adequate clothing, bedding and other equipment.” Under the heading of “housing”, the manual states that “All accommodation provided for use of prisoners, particularly for sleeping, will meet basic requirements of healthy living.”

Under section 4.07.4, it puts the onus of medical care and health of prisoners on the medical personnel within prisons. It states that the medical personnel must “ensure the maintenance of minimum standards of hygienic conditions in the prison premises”. Medical care includes preventive care, curative care as well as general care with respect to admission in prison hospital. In Chapter VII titled “Medical Care”, the manual gives detailed guidelines on management of prison hospitals and what speciality of doctors should be available in such hospitals.

Under various sub-headings, the manual deals with the duties of the Chief Medical Officer which includes daily visits to prisons, attending to special needs of aged prisoners, treatment of drug addicts, control of diets and so on.

Prisoners’ Right to health in courts of law

The Gujarat High Court in Rasikbhai Ramsun Rana vs. State of Gujarat (1997 Cr LR (Guj) 442) the petitioners convicted in the Central Prison, Vadodara suffering from serious ailments were deprived of proper and immediate medical treatment for want of jail escorts required to carry them to hospital and negligent officers were personally held liable by the court as well as I.G. Prison and Addl. Chief Secretary. In 2005, in a suo moto writ petition the Gujarat High Court issued directions to the state government to ensure that all Central and District jails should be equipped with ICCU, pathology lab, expert doctors, sufficient staff including nurses and latest instruments for medical treatment. The Delhi High Court, in Sanjay V. State, (CRL.A.600 of 2000) s directed the prison authorities of Tihar Jail to offer meditational therapy and counselling to convicts.

The Supreme Court in its landmark judgment of Parmanand Katara Vs Union of India (1989 AIR 2039) ruled that the state has an obligation to preserve life whether he is an innocent person or a criminal liable to punishment under the law, thus laying a robust precedent for prisoners’ rights in India, especially the very fundamental right to health included under Article 21 of the Indian Constitution.

In 2016, the Supreme Court passed another one of its landmark judgements on legal and constitutional rights of prisoners in India especially the under-trial prisoners in Re-Inhuman Conditions in 1382 Prisons (AIR 2016 SC 993). The petition was filed to address the status of prison reforms in India and to issue directions and the court directions led to the formulation of New Model Prison Manual, 2016 by the Ministry of Home Affairs.

International standards on prisoners’ Right to Health

Many international documents upheld and released by international organizations that deal with human rights have, by and large, equated lack of adequate medical treatment to torture. The UN Human Rights Committee has stated specifically that the right to health of prisoners could be engaged under the right to humane treatment in the Covenant on Civil and Political Rights. The United Nations Human Rights Commission adopted the basic Principles for Treatment of Prisoners in 1990 in which it is stated that “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation”.

The European Committee for the Prevention of Torture has taken to the view that ‘‘An inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman and degrading treatment’’. The Inter-American Court of Human Rights has in many cases held deficient or inadequate and unresponsive medical attention as cruel, inhuman or degrading treatment.

The World Health Organization has released an information Sheet titled “Mental health and Prisons” which recommends for policy matters that National mental health policies and/or plans should encompass the mental health needs of the prison population; and specific to prisons, it recommends that prisoners should have the same access to psychotropic medication and psychosocial support for the treatment of mental disorders as people in the general community.

The First United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted that ‘Standard Minimum Rules for the Treatment of Prisoners’ in 1955 which stated, among other things, that “at every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry”. It also states that a qualified mental health officer should be available to every prisoner and that the medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures.

It further makes it binding on the medical officer to inspect quality of food, hygiene conditions, sanitation and such other factors that may affect the health of the prisoners.

The UN Human Rights Committee has stated that under the Covenant on Civil and Political Rights stated that in order to be compliant with obligations under the right to life, health care must be available to diagnose and treat prisoners when they are ill or otherwise in need of attention, as anything less than this does not constitute a ‘‘properly functioning medical service’’ within the terms of Article 6(1) of the covenant.

Prisons in India: A status check

A research paper published in the 2017, Winter Issue of the Indian Law Institute law Review Vol.II, presented some prison data related to prison reforms. It observed reforms in Tihar Jail, Delhi and the Prison Department of the State of Andhra Pradesh. It stated that Tihar jail has to its credit several innovative reformative schemes such as Prisoner’s participation in various sports, provision of education for prisoners, legal aid, yoga, lok adalats and so on.

The official website of the Andhra Pradesh Prison Department states that many facilities like Television, Radio, Newspapers and indoor games are provided in all the prisons of the State. Further, Septic toilets and bathrooms are provided in the ratio of 1:06 and 1:10 respectively in all prisons. Apart from these facilities, degrees and certificate courses are provided through correspondence from universities at government cost. Also, there are no restrictions on writing and receiving letters by prisoners.

Dr. Kafeel Khan who is lodged in Mathur prison since January 2020 for a speech where he allegedly criticised the government during the anti-Citizenship Amendment Act (CAA) protests wrote a letter in which he described the deplorable state he was living in. Relaying the dangerous prison conditions, Dr. Khan wrote, “With just one attached toilet, 125-150 inmates, the smell of their sweat and urine mixed with unbearable heat due to electricity cuts makes life hell over here: A living hell indeed. I try to read but cannot focus due to suffocation. It sometimes feels that I might fall due to dizziness caused by that suffocation. So, I keep on drinking water.”

“In a jail made for 534 inmates, there are 1,600 people kept with one barrack holding at least 100-125 of us. There are just 4-6 toilets,” Dr. Kafeel Khan wrote in his letter.

Current State

Prison statistics in India are released by the National Crime Records Bureau (NCRB). The latest report is of the year 2018 and it usually presents data on parameters such as occupancy rate, classification as per age, gender, educational qualifications, domicile, nationality, number of deaths, illnesses of prisoners and so on.

As on December 31, 2018, there were 61,621 inmates (13.2%) belonging to the age group above 50 years. In 2018, a total of 1,639 prisoners died of natural death and 149 prisoners died unnatural deaths. The report states that among the 149 un-natural deaths of inmates, 129 inmates have committed suicide, 5 inmates died in accidents, 10 inmates were murdered by inmates and 1 inmate died due to assault by outside elements during 2018. For a total of 57 inmates’ deaths, the cause of the death is yet to be known.

The number of undertrial prisoners has always been high in Indian prisons. NCRB data states that as of 2018 Indian prisons housed 69.4% undertrials out of the total number of prisoners. This marked a 10% increase in the number of under-trials compared to 2016 data.

This data discloses very little about the general health of prisoners. It is very difficult to determine whether these deaths occurred despite the best efforts of the medical personnel in these prisons and no such data can really be collated. While the Model Prison Manual as well as the Maharashtra Prison Manual which was taken as a case study, seem to follow most of the international standards on medical care for prisoners, whether the same is strictly followed and implemented in prisons across the country remains unknown. The impregnable and impenetrable nature of prison management makes it difficult to collect any real time data, apart from some isolated testimonies of prisoners eventually released from these prisons, but no such recent study has been conducted. Maybe, that is the need of the hour, to peep into these tall structures where there is little or no accountability on prison staff for safeguarding the human rights of these prisoners, so that the real picture can come to the fore and implementation of these ideal and model prison manuals can be pushed.