One often hears ‘sentinel on the qui vive’ about the Supreme Court of India. It was used the first time by late Chief Justice Patanjali Sastri in the context of fundamental rights in State of Madras vs. V G Row. The phrase originated in France, where sentinels guarding the French castles would cry out ‘qui vive’ (the sentinel was asking “Long live who?") and wait for the response to determine the identity of the person coming through. In today’s parlance, it is used to mean, being alert or on the lookout. Interestingly, the Supreme Court used that exact phrase when it heard the interlocutory application on May 7, 2021, in a suo motu petition regarding the contagion of the Covid-19 virus in prisons, ten months after its last hearing of the case.

 One of the main recommendations of the Commonwealth Human Rights Initiative (CHRI) report ‘Responding to the Pandemic: Prisons and Overcrowding’ was the need for periodic monitoring by the Supreme Court of the decongestion efforts of states. The report documented the efforts by the high-powered committees (HPCs) of 24 states/union territories (UT) and the under trial review committees across 17 states and analyzed its impact on the decongestion efforts on prison populations.

 As reports of infections inside prison came forth during the second wave, the Supreme Court on 7 May 2021, directed the HPCs – that was set up following the orders of this bench on 23 March 2021 – to consider fresh release and to release prisoners who had been previously released and had returned to prison. The Court reiterated its earlier direction to limit arrests that were against the guidelines in the judgment of Arnesh Kumar v. the State of Bihar. It essentially meant that the police were not to arrest individuals unless they were suspected of having committed a cognizable offense, for which the imprisonment was less than seven years.

 Since then, the Supreme Court has had two more hearings in this matter. In its last hearing on 16 July 2021, the Court sought information from the HPCs about the criteria devised to release prisoners. The data compiled by CHRI on the states’ response during the second wave shows that 28 states/UTs had complied with the directions of the Court and updated the minutes of the HPC meetings on their websites (mostly on the website of the respective State Legal Services Authority).

 An analysis of the minutes of the HPC meetings revealed that in most states/UTs, the release of prisoners continued to be primarily based on the duration of the sentence or the nature of the offense. However, states/UTs like Bihar, Delhi and Maharashtra identified categories based on age and existence of co-morbidities.

 Prisoner release, criteria

 A report by DLA Piper along with the Association for the Prevention of Torture (APT) analyzed how the governments of 53 jurisdictions across the world approached the task of decongesting prisons. It noted that, at the end of 2019, over 124 countries had reported housing more prisoners than their maximum prison occupancy.

 The report stated that at least 475,000 prisoners were released across the 53 jurisdictions. The largest reported releases were in Iran, which released more than 104,000 convicted prisoners. This was followed by India with over 68000 releases (both convict and under trial prisoners). CHRI’s report showed that the concerted efforts by the government bodies in 22 states/UTs between April to June had brought down the overall prison occupancy rates from 103.1 percent (1 April 2020) to 93.3 percent (30 June 2020). However, a closer look at the prison-wise occupancy showed that 27 percent of the prisons continued to remain overcrowded.

 While studying the implementation of prisoner release measures, the DLA Piper report found that 40 percent of the countries used existing measures and 28 percent created new measures. The rest used a combination of both. The approval was to be given by i) government officials, ii) public servants, or iii) judicial officers. The creation of HPCs in India meant that it was classified under the category of approval by a public servant.

 The prisoners’ release eligibility across the world was based on three key criteria; 1) the nature of the offense committed by the prisoner; 2) the nature or status of the prisoner’s sentence, and 3) whether the prisoner had particular vulnerabilities.

 Under the first criterion, 83 percent of the jurisdictions expressly released only non-violent or minor offense prisoners. Twenty-five percent of the countries excluded those with charges or convictions for domestic violence. At least 15 percent of the countries including India excluded those who had committed drug-related offenses (including drug use) from release. In 85 percent of the countries, the release of convicted prisoners was linked to them having served a minimum period in prison or being days or months from their release date. In India, this vastly differed from state to state.

 Vulnerable prisoners

 About 62 percent of the countries considered the vulnerability of prisoners in their release criteria, with 38 percent releasing elderly prisoners, 55 percent releasing those with poor health and 25 percent releasing female prisoners, including pregnant, breastfeeding and women with children in prison. While this reduced the Covid-19 related risks to these vulnerable prisoners, it also helped governments to cut down on the costs associated with the incarceration of vulnerable prisoners.

 CHRI’s report revealed that only five HPCs (Mizoram, Punjab, West Bengal, Delhi and Jammu & Kashmir) considered elderly under trials for release. Similarly, only the HPCs of Mizoram, Punjab and Delhi considered under trials with poor health for release. Further, it was only Punjab HPC that specifically mentioned pregnant women as a category for release, while the Haryana HPC considered specific cases of pregnant women for release.

 Another key point that emanates from the DLA Piper report was that 66 percent of the releases were permanent. However, the majority of the releases in India were temporary. By the estimates given in the order dated 7 May 2021, almost 90 percent of prisoners released last year had returned to prisons between February and March this year.

 Therefore, as the Supreme Court analyzes the reports submitted by the HPCs before its next hearing, it might be worthwhile to study the global trends on prisoner releases in response to Covid-19. The court might thus consider additional categories for release and more permanent releases, and devise long-term strategies, in an attempt to turn this tragedy into an opportunity to effectively address the endemic issue of overcrowding in prisons.

 (The writer is a former staff member of the Prison Reforms Programme at the Commonwealth Human Rights Initiative (CHRI), New Delhi. The views expressed are personal.)