- Shruti Gupta and Akshat Shukla
The Parliament approved the Citizenship (Amendment) Act (hereinafter, ‘CAA’) on December 11, 2019, extending Indian citizenship to illegal migrants from Afghanistan, Bangladesh and Pakistan and belonging to any of Hindu, Sikh, Jain, Buddhist, or Christian communities. These migrants essentially entered India before 2014 following their religious persecution. Widespread riots broke out in various parts of the country including some regions of Delhi and most aggressive repercussions were witnessed. The concerns of the protestors were varied. Several people, including the students from various universities in Delhi, took to the streets condemning the legislation and challenging the tyranny of the government.
One such revolt was led by Safoora Zargar, a student and the General Secretary of the Congress-backed NSUI’s Jamia unit. Zargar was one among the founding members of the Jamia Coordination Committee, set up in December 2018 in protest of the Citizenship Amendment Act. She was arrested under the Unlawful Activities Prevention Act (UAPA) for her involvement in the Delhi riots, propagating anti-national sentiments by raising ‘Azadi’ slogans inside the Jamia campus.
She came into the limelight because she was in the second trimester of her pregnancy when she was arrested. A lot of human rights activists came to her rescue, considering the ill condition of the prisons in India and her health status.
This blog post seeks to discuss the facts of the Safoora Zargar case from a legal point of view, critically analyze the conditions of prisons in India and compare them with the utopian principles and in furtherance of the same, suggest ways of betterment so that the criminals accused of an offence as grave as ‘Sedition’ need not be granted bail because of diminutive medical facilities.
Safoora Zargar is an Indian student activist leader from Kishtwar, Jammu Kashmir. She was arrested under the provisions of the Unlawful Activities (Prevention) Act, 1967 for conspiring to spread hate speech and inciting violence in Delhi.
The judge observed that “As per the provisions of sections 339 of the IPC, causing wrongful restrain to even a single individual is a penal offence. Section 141 clause 3 provides that any assembly of five or more persons is designated as ‘unlawful’ if its common object is to commit any offence.” Thereafter, she was placed in judicial custody. Her lawyers pleaded that she must be granted bail on humanitarian grounds as she was in her 21st week of pregnancy when she was arrested and had some related medical issues. They also argued that it was not safe for her to stay in the Tihar jail especially in times of the COVID pandemic.
However, there were several claims from the police officials that the situation faced by Safoora was not unique. They submitted that as many as thirty-nine deliveries had taken place in Delhi prisons in the last 10 years. Furthermore, it is significant to note here that the Ministry of Women and Child Development had issued all guidelines relating to a healthy diet, proper sanitation facilities, etc. for the benefit of pregnant as well as lactating women prisoners. Despite the opposition by the Delhi police, Safoora was granted bail on humanitarian grounds. This bail indirectly has conveyed that the poor medical conditions of the jail will soon set free the sensitive prisoners convicted for grave offences.
The paradoxical turn that the events took has left us all with one question- Is the tranquility of the country being compromised because of the inhuman conditions of the jails? The achievable goals are far from the sad and grim reality. However, there have been a lot of attempts by judicial authorities to reform the prisoner conditions. The outcome of their efforts is a different investigation altogether.
THE PRISON CONDITIONS AND HEALTHCARE
The case of Safoora Zargar as discussed in the previous section has resurfaced the need for basic amenities and better facilities in the prisons. At the very outset, the bails for medical treatment on humanitarian grounds can be set aside if the healthcare facilities in the prisons render services at par with general hospitals. The need for hearing the pleas and sometimes even granting bails becomes mandatory for the judges because of the ground reality and the consideration of justice, equity and good conscience. Subsequently, questions are raised on the principles of deterrence because such bails can be suggestive of the relaxations available even after the law has been disrupted by the prisoners.
However, the law relating to pregnant women in prisons is settled and the prison reforms are very mildly connected to pregnancy-related circumstances. The same shall be stressed upon after addressing the need for better healthcare facilities in the prisons.
STATUS QUO OF PRISON CONDITIONS
The current condition of Prisons in India requires an overhaul in consistence with the Human Rights jurisprudence. Further, in order to analyze the ground reality, it is important to look at the recent statistics relating to the prison conditions in India. The latest report on prison statistics was released by National Crime Records Bureau (NCRB) in 2018. Chapter 10 of the report deals with the rehabilitation and welfare of the prisoners. Various welfare measures such as Education, Health Care and vocational training programs find a mention in the list and a state-wise analysis has also been provided. It is pertinent to note that reports from only a few states are mentioned under these measures. Contextualizing and limiting it to health care and sanitation, the report has a mention of only five states and one union territory which means that the other states either did not submit the health care report or did not have any significant improvement in procuring medical facilities for the prisoners. Additionally, out of the states which have submitted the healthcare report, only two discuss facilities available for pregnant women. Another worrying factor is the expenditure on medical facilities out of the sanctioned budget. The report states that only seventy-six crore rupees out of the six thousand eight crore rupees were spent on health care which forms only four percent of the total budget. This shows a grim facet of the prison conditions in India and thus, an appeal for bail by a pregnant lady cannot be said to be an invalid demand.
LAW ON MEDICAL FACILITIES IN PRISONS
There are two legislations that can be referred to in order to address the position of the law. These are,The Prison Act, 1984 (hereinafter, ‘the Act’) and Prison Manual 2016 (hereinafter, ‘the Manual’). The Act has provisions relating to the health of prisoners in Chapter VIII under Section 37, 38 and 39 whereas the Manual deals with the provisions relating to Medical Care, Women Prisoners and welfare of prisoners under Chapter VII, Chapter XXVI and Chapter XXII respectively.
The Act provides for the availability of a medical subordinate for sick prisoners under Section 37. It also requires the Medical Officer to take charge if the state of the prisoner requires attention. Section 38 requires the jailor to keep a record of the treatment given by the Officer or Subordinate. Section 39 requires every prison in India to have a hospital.
The Manual sets out the detailed procedure regarding the medical facilities and it also mentions the staff requirements, types of equipment, roles and responsibilities of all the staff members and the medical officers. This manual was released in 2016 and thus, the conformity with the same can take more time considering the nation-wide implementation. The Manual answers a lot of queries in relation to the Safoora Zargar case as it dedicates a whole Chapter for provisions relating to women prisoners. It clearly provides for the delivery of the pregnant prisoners outside the prison at district government hospitals and there is also a mention of special care and nutrition during pregnancy for the prisoners.
However, an exception to these provisions is the security risk. If the prisoner has committed offences which may cause a threat to the security of the nation, the delivery has to be done in the prison itself. Therefore, it is essential that the prisons must also be equipped well to handle such circumstances.
It is clearly inferred from the discourse that there is a requirement of better medical facilities in the prisons for dire circumstances where the prisoner needs to be treated inside the prison itself. Although the laws provide for all the types of equipment to be made available in all the prisons and also for the professional practitioners to be present in such situations but the ground reality is absolutely different. Considering that the prisons are overcrowded, it becomes difficult for the authorities as well to manage the prisons properly. Thus, the existence of a detailed manual does not address the problems of all the prisoners. Owing to the presence of such fallacies, there is a need to implement the existing guidelines with a view to revamp the medical facilities of the prisons in India and channelize the efforts as such to attain a permanent and viable solution.
The authors are law students at NLIU, Bhopal.