Explained: Plea for decongestion of prisons

Reading time: 8-10 minutes.

On 5th of June, 2020, the Supreme Court rejected the plea filed for the purpose of decongestion of prisons. The plea was filed by the activist, Jagdeep S. Chokker, former director in-charge of IIM Ahmedabad, represented by Advocate activist Prashant Bhushan. The Supreme Court, headed by the Chief Justice of India S. A. Bobde, rejected the plea by directig that the petitioner has the liberty to approach the jurisdictional High Court in the respective matter.

The Supreme Court Bench comprising of CJI, Justice Surya Kant and Justice Nageshawar Rao took suo moto cognizance on the matter of overcrowding of prisons during the covid-19 pandemic on the on 23rd of March, 2020. The court directed the states and the union territories to set up committees in order to determine the number of prisoners present in the prisons, and to suggest different measures to be taken in this crisis of covid-19.

The present plea in concern, sought to provide for general directions to all states and union territories to speed up the process of decongestion of prisons. It also insisted upon asking for report from all the states and union territories about how many prisoners are presently there in prisons, specifically indicating the number of under trial prisoners, the number of undertrials for minor offences, and the number of prisoners above the age of 60.


Advocate Prashant Bhushan, appearing on behalf of Jagdeep Chokker, argued that the process for decongestion of prisons had not started yet and the prisons are still overcrowded. He requested the court to pass general instruction for all the states and union territories for the release of prisoners which the court was not willing to do. The court stated the reason that passing a general instruction was not possible as the situation in all the states during the time of this pandemic was not the same.

To this, Advocate Prashant Bhushan argued that the court can ask the states and the union territories to make a report of all the prisoners in their respective areas of jurisdiction, specifically indicating the age, charges, and the duration of detention of the prisoners. He urged that the court, upon receiving such reports, may pass general orders to all the states to release the prisoners who are under trial and who are charged with minor offences.

The court, while denying this request of the petitioner, said that at this point of time, passing a general order is not feasible. The court was of the view that the condition in all the states is not the same, therefore a general instruction for all cannot be passed. The respective high courts of all the states should first decide on this matter. Upon hearing the decisions of the high court and analysing the overall situation, general instructions for all the states may be passed. The court allowed the petitioner to withdraw the petition and approach the jurisdictional high court for this matter.

Legal angle to the situation-

Most of the prisons in India are overcrowded. Taking into account the present scenario of the pandemic, the health conditions of the prisoners have become a bigger concern. The rules of social distancing as regulated by the government cannot be practised in prisons when they are already overcrowded. Therefore, different prisoners can be released considering the duration of their detention, the type of offence they are charged under, or other relevant factors. Our legal system also provides with some provision regarding the same.

Section 436-A of Code of Criminal Procedure,1973 states that a person who has, during the period of investigation, inquiry or trial, undergone detention for a period extending up to one fourth of the maximum period of imprisonment specified for that offence, shall be released by the court on personal bond with or without sureties. Also, section 265-A of the same act provides for the provision of plea bargaining, primarily introduced to reduce the pendency of cases in trial court and overcrowding of prisons.

Along with this, Sections 37, 39-A, 39-B and 39-C of the Prisons Act provide for proper check on the prisoners about their health on their entry into the prison so as to provide better and proper treatment to the prisoner, and prevent the spread of any contagious disease to other prisoners.

Not the least, but Article 10 of the Universal Declaration of Human Rights provides for the provision of right to life, which is equally applicable to all.

The Supreme Court took suo moto cognizance of the matter of congestion of prisons keeping in mind the health and safety of the prisoners. States have been directed to look into the matter and form committees to keep a check and identify the prisoners who can be released. But the present appeal by Advocate Prashant Bhushan for a uniform direction to all the states for releasing the prisoners may not stand in the present crisis. There is a daily surge in the number of cases of the persons infected by the novel corona virus.

Each and every state have regulated different rules and regulations considering the situation in their respective areas. Though some states have the situation in control, but in some states, the situation is getting worse day by day. Passing a general instruction for the whole country may not be a good step, and involves great risk. Number of cases of covid-19 are different in different states. Therefore, the Apex Court has rightly decided to first consider the opinions of the High Court and then pass a general instruction. The High Courts may have a better idea of the situation in their states, and may suggest what may be best to keep the situation under control.


Although the time is tough, but it is to be handled calmly to get better results. The prisoners in the prisons are of great concern, as the disease is such which spreads speedily among the persons in contact, and then when the prisons are already congested, the risk has increased to much higher levels. The prisoners need to be released, and should be released, not only because it is their right to be released, but more importantly, their health is in concern. Decongestion is the need of the hour, and should be done as soon as possible, but in systematic manner which may be beneficial for one and all.

Author: Namrata Singh from V.I.P.S, I.P. University.

Editor: Silky Mittal, Junior Editor, Lexlife India.

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