Delhi High Powered Committee recently denied the request of reclassification of persons to be released from the prison on interim bail/parole during the pandemic to include all women, children, and trans persons, looking at their social status and further stated that it had absolute discretion to classify persons who may be released from the prison after taking into consideration all the relevant factors and on the basis of objective satisfaction arrived by the committee.
A letter was sent by Dr. Uma Chakravarti (historian/Ret. Faculty DU), Dr. Navsharan Singh (independent Feminist Researcher), Dr. Mahuya Bandyopadhyay (Associate professor IIT Delhi), and Dr. Pratiksha Bakshi (Associate Professor JNU) to the committee and in reply, for that letter, the committee made some observations. The committee stated that it can’t have a prisoner centric approach and that it has already relaxed some of the condition with respect to women, vis a vis man.
The committee further said that on bare pursual of the observation directions given by the Hon'ble Supreme Court vide its order dated 23-03-2020 it is apparent that the High Powered Committee so constituted was given an absolute discretion to determine which class/category of the prisoner can be released on interim bail/parole depending not only upon the severity of the offense, but also the nature of the offense and other relevant factors. It is further apparent on the pursual of the subsequent order dated 13-04-2020 of Hon’ble Supreme Court whereby it was clarified that it has not directed the states/Union Territories to compulsorily release the prisoner from their respective prisons. Thus, no in whatever category/class he/she falls and for whatever nature of offense he/she is facing trial can seek or claim to be released from the prison, as a matter of right/ or inclusion of his/her/their category in the recommendation so made. They had urged the committee to review its decision and review all the inmates who are vulnerable by virtue of gender, class, caste, religion and race and disabilities, co-morbidities, illness and age, irrespective of nationality, sentence, or offense during the pandemic for the following reasons-
- Women and trans persons are in minority as compared to the total prison population. As per the Ministry of Women and Child Development, owing to the fact that women remain in a minority in comparison to the total prison population \, they do not receive adequate specialized service or infrastructure.
- Women and trans persons in prison are numerically small, comprising 2.7 percent of the total prison population. The release of the small no. Of women/or trans persons/ or use of non- custodial alternatives do not threaten law and order.
- As a class, women and trans persons do not have the means, position, and standing nad nor the social or physical (through the violence) or economic capacity to influence the witnesses or the capacity to flee.
- Since special women prisons are sparse, most women prisons are locked up in small, congested spaces in made prisons that are oblivious to the gender-specific needs.
- The prison medical complex is, male and transphobic, the specific needs of women and trans person bodies is not a priority in any medical system that the prison system may adopt. They are not adequate doctors and nurses for women if any.
- Pregnant women, mothers, and children do not be taken into custody during the pandemic, considering their vulnerability to contracting COVID-19 in the custodial institution.
- Discrimination on the bases of caste, religion, gender, community, race, descent should be avoided.
- Rather than see all foreigners as a class that does not observe preferential treatment on the grounds of their nationality, they should be seen as a vulnerable population and as custodial minorities in a foreign prison who observe the protection of law flowing from principles of substantive equality.
Notwithstanding these submissions, the committee observed that it has adopted various criteria in its earlier meetings while taking into consideration women as a separate class and accordingly and relaxed some of the conditions with respect to them vis-a-vis the male prisoners. The object was only to release some of the prisoners not all the prisoners on the reasonable classification arrived at based on orders passed by Hon’ble Supreme Court, intending to implement the same in letter and spirit. [READ RESPONSE]