The Allahabad High Court, on November 17 has raised a rather pertinent question about the criminal justice system that is the most affected due to Covid pandemic. While considering a bail application of an undertrial, charges against whom were framed as long back as March 2019, the court questioned the reason behind keeping the accused under judicial custody.

A status report was filed by Sessions Judge, Gonda, before the single judge bench of Justice Rajesh Singh Chauhan stating that charges were framed against the accused, Ram Niwas, on March 26, 2019 and there after trial proceedings were held up due Covid-19 situation but the date for examination of witness was now fixed for November 26, 2020.

The high court observed that the trial court was unable to proceed the trial on account of Covid-19.

“If the trial court is unable to proceed the trial then there may not be any logical reason to keep the accused under judicial custody inasmuch as it appears that COVID-19 situation is not going to be controlled in days to come. Therefore, in that situation, the question before the Court would be as to whether liberty of the accused-applicant may be curtailed when the trial courts are unable to proceed the trial.”

The court further asked the state to address on the next date of hearing what course the court should adopt because “for want of logical explanation for not conducting the trial, the fundamental right granted to every citizen under Article 21 of the Constitution of India may not be denied.”

The court also pointed out that the accused is languishing in judicial custody so that trial can be conducted and concluded at the earliest but the situation seems otherwise.

The court has thus asked the AGA to seek instructions from trial court as well as from the Law Department of the State as to whether in absence of trial, liberty of the accused-applicant may be curtailed, if so, what may be the logical reasons to that effect. The case will be next heard on December 7, 2020.

Due to the pandemic the criminal justice system has been brought almost to a halt and as the court rightly pointed out, this amounts to a violation of the right to life and dignity of the accused. Naturally, this applies to the numerous undertrials languishing in prisons across the country.

As per National Crime Records Bureau’s (NCRB) 2019 Prison Report, there were 69.05% undertrials in Indian prisons as of 2019; this was a 2.15% jump from the 2018 figures and it is highly probable that this number has increased for the year 2020. Notably, Uttar Pradesh itself reported the maximum number of undertrials (22.2%, 73,418 undertrials) in the country, as per the 2019 report.

Hence, the question being raised by the Allahabad High Court holds much relevance for the current times where the criminal justice system is running in a rather restricted manner thus violating human rights of the undertrials languishing in prisons.

The high court order may be read here.

Related:

Delhi jails most crowded; number of unnatural deaths on the rise: Prison report 2019
Prisoners too have human rights: Allahabad HC
Women in prisons: 2019
What lies behind the high walls of Indian prisons?

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The Supreme Court has directed the Allahabad High Court to consider the life convict’s bail application who has spent over 21 years in jail, on November 18. (Virendra vs State of Uttar Pradesh and anr- W.P Crl. No. 343 of 2020)  

Advocate on Record (AoR) Rohit Amit Sthalekar, Advocates ZU Khan, Sulaiman Mohd Khan, Taiba Khan and Ashish Choudhary appeared for the petitioner.

A Bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah said, “Ends of justice be served in giving the liberty to the petitioner to make a fresh application for suspension of sentence and grant of bail before the High Court in the pending criminal appeal. We observe that in event the bail application is filed, the same shall be considered forthwith by the High Court.”

Background

The petitioner approached the Supreme Court under Article 32 of the Constitution, praying for a direction from the Supreme Court to expeditiously dispose of his criminal appeal pending at the High Court since 2004.

The petitioner also submitted that he deserves sympathy, as he has been languishing in jail for more than 21 years (without remission). It has been sixteen years since his conviction in 2004 and neither has he been granted bail during the pendency of appeal nor has his appeal been heard by the High Court.

The top court noted the submission made but decided to not entertain the plea since his criminal appeal against his conviction order was already pending before the High Court. The Bench said, “The criminal appeal was filed by the petitioner in 2004 and the High Court on 19.07.2004 (July 19, 2004) directed the bail application be heard after receipt of the record. It appears that the bail remained pending from 2004 to 2013 and was disposed of for want of prosecution. Thereafter, several dates were fixed for hearing of the appeal but could not be heard till date.”

While asking the petitioner to approach the High Court again, the Supreme Court directed the lower court to decide on the bail application filed “preferably within a period of one month.”

Delay in Justice

It has been long enough since the Indian Judiciary is trying to cope with the backlog of cases and high pendency levels.  With Covid-19, the functioning has decelerated even more. A few months ago, in June, the Supreme Court had ordered six High Courts to file affidavits detailing their plan of action to reduce the pendency of criminal appeals that have been lying pending for a long period of time. (Khursheed Ahmed v State of Uttar Pradesh SLP Crl. D. No. 35524 of 2019).

The Bench of Justices L Nageswara Rao and S Ravindra Bhat noted that according to the National judicial data grid (NJDG), criminal appeals pending before the High Courts for over 30 years stood at a staggering 14,484.

The whopping number does pose a serious challenge to the judicial system and the Bench had importantly observed that the right to speedy trial would also include right to speedy disposal of appeals of those convicted. “If such appeals are not taken up for hearing within a reasonable time, the right of appeal itself would be illusory, inasmuch as incarcerated convicts (who are denied bail) would have undergone a major part- if not whole of the period of their sentence”, the court remarked.

The Supreme Court order dated November 18, 2020 may be read here: 

Related:

Role of courts in delayed justice: Article 21 violation
Haphazard Appointment Of Judges Worsening High Court Judicial Delays

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The Bombay High Court, on June 12, passed an order seeking pending bail applications with District courts in the state, in a petition filed by People’s Union for Civil Liberties (PUCL). The petition had been filed in May raising concerns over the health of prison inmates still lodged in prisons, in the light of the outbreak of Covid-19. The petition had sought certain directions from the court, such as, provision of sanitizers, masks to inmates and staff; to ensure inspection of prisons by health officers, provide monthly sustenance to inmates for buying food and daily essentials, providing frequent opportunities to inmates to communicate with family in absence of face-to-face visits, provision of proper healthcare mechanism in prisons, assigning health care workers to prisons; giving updates on health of inmates to their family and their lawyers.

The order

The bench headed by Chief Justice Dipankar Dutta also comprising Justice SS Shinde, on June 12, asked the ADG, Prisons to submit information on protocol being followed in correctional homes for testing of inmates who are asymptomatic and in direct and high risk contact of inmates. The court also asked the respondents to extend the permission of interacting with family members, to prison inmates, “We direct the ADG, Prisons to consider the desirability of extending the benefits of the circular dated February 12, 2019 to the inmates of the correctional homes, in the light of the fact that number of inmates may have been released on temporary bail in pursuance of the extant judicial/administrative orders and guidelines on the subject and that load of inmates in the correctional homes may not be that burdensome as in normal times. However, if the benefits are denied, the reason shall be indicated in the report to be filed in terms of this order.”

Lastly, the bench asked all District and Sessions Courts to submit to the court exact number of pending applications for temporary bail filed by the inmates of correctional homes from all over Maharashtra to avail the benefit of the recommendations of the High Powered Committee together with the dates of presentation of such applications, by June 15. The case will be heard again on June 16.

The complete order may be read here.

The Petition

Further, the petition had also sought a report from the respondents detailing measures taken by them for prevention and control of COVID-19 in prisons and other places of detention; precautions and sanitisation procedures in prisons; protocol being followed for screening of the prisoners and staff; testing of inmates; procedures followed if any person associated with prison has tested positive; quarantine facilities; supply of medicine and availability of health care in prisons; and capacity and the present occupancy of all the prisons, numbers of inmates tested in each prisons and their respective results.

The petition also sought information on the number of persons belonging to vulnerable categories, such as prisoners above 50 years of age; children in conflict with the law in remand homes/shelter homes; prisoners with co-morbidities such as asthma, diabetes; prisoners with disabilities; pregnant women and so on.

The petition sought these directions on the grounds that the wellbeing of prisoners is the responsibility of the state government as they are under their custody and the family members of such prisoners are in dark about their well being since no information is being released. About the health crisis in prisons, the petitions said, “health care service within the prisons has been reported to be inadequate even under ordinary circumstances. Under the current pandemic it becomes even more pertinent to provide better health care services to prison inmates. Cramped accommodation areas, poor hygiene, ventilation and nutrition as well as insufficient health-care services in prison will equally undermine infection control measures and thus significantly increase the risk for infection, amplification and spread of COVID-19.”

The Petition can be read here.

Earlier order of May 26

The bench headed by Chief Justice Dipankar Dutta, had in its order dated May 26, addressed some grievances raised by the petitioner with regards to recommendations of High Powered Committee constituted by the state, outbreak of Covid-19 in Arthur Road Jail, communication of correctional home inmates with their family and issue of money required for sustenance of inmates. With regards to the recommendations of the Committee which stated that Correctional Homes should be decongested, the petitioners pointed out how 14,000 bail applications were still pending before various courts. To this court responded, “we are of the opinion that the relevant courts are not supposed to act as mere post-offices 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 seen 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 Committee”.

To the rest of the concerns raised, the court entrusted the state with the responsibility of taking necessary actions and following through the same, without issuing specific directions. The court had, however, asked correctional homes to arrange for phone calls between inmates and their families until video conferencing facilities for communication can be commissioned.

The complete order may be read here.

Affidavit in response by respondents

On May 25, the Additional Director General of Police & Inspector General of Prisons & Correctional Services had submitted an affidavit in response in which it was stated that The authorized capacity of the Prisons in the State of Maharashtra is 20,4032 and as on May 23, it was at 29,762. “Although there is over crowding the respondent has taken necessary precaution to decongest the prison also followed the medical protocol in view of Covid-19,” said the response. The affidavit further said that the overcrowded prisons such as Authur Road, Thane, Yeravda, Nagpur, Nashik, Aurangabad, Kalyan and Byculla Prison had been locked down and that inmates were allowed to communicate with family through phone and video call. It further stated that the vulnerable category prisoners were kept separately and medical facilities were also being made available.

Rejoinder of PUCL

PUCL then filed a rejoinder in reply stating that the respondents had only provided partial information and information related to procedure followed if inmate is tested positive, availability and supply of medicines and other health care services and number of inmates in each prison, numbers of inmates tested in each prisons and their respective result was not provided at all. In the rejoinder, the petitioners put forth some new information before the court. The petitioners stated that deaths of inmates of Taloja and Yerwada due to COVID19 was not disclosed in public and sought a “consolidated weekly brief by the prison authority with information on the number of tests conducted, number of prisoners tested positive, number of deaths in prison and reason, no. of new entrants in the prison, medical staff condition, etc.”

The petitioners also highlighted the pending bail applications and the need to decongest prisons by releasing at least 18,000 prisoners on parole/bail, “it is important that all the prisoners eligible as per the HPC guidelines and other vulnerable prisoners on account of their age, health etc., be immediately released by way of temporary bail and/or parole. In addition, these applications can be listed as urgent matters for which dedicated courts could be set up to dispose of these applications at the earliest,” said the petitioner in the rejoinder. The rejoinder further reiterated the need for communication of well being of inmates to their families and not just of those who have been infected by the virus and also stressed upon the need for proper health care facilities in terms of supply of medicines and so on.

The matter is set to be heard again on June 16, when the bench will consider the report submitted by district and sessions courts on pending bail applications.

Related:

Maha govt  to release half of its prisoners, as more than 180 COVID cases emerge in Arthur road
Maharashtra gov’t to release 3,500 prisoners from Thane district
Can’t keep accused in custody just to send message to society: Delhi HC
COVID-19 and the Indian Supreme Court

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"I am resolute, the rally for Rohith tomorrow on February 23 must be successful", Kanhaiya Kumar told his brother, Manikant Singh and uncle Rajendra Singh who met him with veteran CPI leader, Amarjit Kaur and the legal team consisting of advocate Bankim and others. The group met him in the forenoon today, February 22, at the Tihar jail where Kanhaiya Kumar has been after the unseeemly scenes at the Tees Hazari Court on February 15 and 17, 2016. He was arrested on February 12, 2016.

Tomorrow, that is February 23, 2016, senior counsel Kapil Sibal will head the legal team that is applying for bail for Kanhaiya Kumar in the Delhi High Court.
 
Kanhaiya Kumar was in good spirits, encouraging and strong concerned that the rally for “Justice for Rohith” should be successful.

Justice for Rohith
It has been more than a month that we have been fighting against this casteist criminal administration and the larger power structures. When we asked, why was the new committee constituted by R.P. Sharma scrapped? On what basis did Sub-committee, Executive Council took the atrocious decision of Social Boycott? Why did the University administration sensationalize it by linking it to Yakub Memon instead of locating it in the context of movie screening of Muzaffarnagar Baaqi Hai? Why were the counter affidavits filed by Cyberabad Commissioner of Police on 3rd October and Inspector General of Police on 31st October in the High Court overlooked and ignored? Why was Vipin Srivastav who headed the Sub-Committee of Executive Council that took the decision of Social Boycott and is main accused in the institutional murder of yet another Dalit student Senthil Kumar, appointed as the interim Vice-Chancellor? Why did BJP ministers interfere in an academic institution? We got no answers to the questions raised.

Appa Rao Podile has not been sacked from the post of Vice-Chancellor yet. The murderers have not been arrested yet. After playing a major role in the entire process of inquiry sending five letters to Appa Rao Podile including Bandaru Dattatreya’s “appeal”, MHRD is trying at its best to wash off its hands off the crime that the entire saffron brigade, in a well calculated manner, executed. The two-member committee constituted by MHRD held the Vice-Chancellor responsible for the murder giving clean chit to all the BJP ministers and constituted a one judge judicial probe to investigate into the issue. The latest convenient move by MHRD is that in the backdrop of Rohith’s death, they have decided to convene a meeting with all Central University Vice-Chancellors to reach Delhi on 18th February to discuss ways to end discrimination against marginalized sections. Three days back, the Hyderabad High Court put a stay order on the arrest of BJP MLC Ramachandra Rao and ABVP President Susheel Kumar. To cancel out the SC/ST Atrocities Act charges, they are hell bent on proving that Rohith is not a Dalit. Even after his death, they have killed him several times by forcefully cremating him without his mothers’ consent, his mother being constantly harassed and name calling Rohith as terrorist, anti-national and what not.

What gives us hope, strength and inspiration today is the unity of the people forged against the saffron brigade. Students, Workers, Professors, Film makers, Cultural activists and people from all walks of life have come together. The entire country is witnessing protests against the injustice meted out not just to the Dalit five research scholars in our University but discrimination, subjugation and humiliation faced by Dalits across the country. After Rohith’s death, the anger and outrage in all of us has shown a way to take our struggle and Rohith’s aspirations forward for a casteless society.

In a time when freedom of expression is being attacked all around us, and progressive voices are being silenced or murdered, there are some who continue to use their voices to bring light into a world seemingly engulfed in darkness. We appeal to the entire nation to join us in Delhi on 23rd February for #JusticeforRohithAttachments are

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