Patkar said she has moved the top court for directions to the Centre, states and union territories and high powered committees (HPCs) to formulate a uniform mechanism so as to decongest the prisons pan-India, with respect to the release of the prisoners aged above the age of 70.
Patkar, in her plea filed through advocate Vipin Nair, said, ''Nelson Mandela had remarked that no one truly knows a nation until one has been inside its jails. This great leader, who was incarcerated for almost 27 years, held the firm belief that a nation should not be judged by how it treats its highest citizens, but its lowest ones.'' Her plea referred to the Prison Statistic published by the National Crimes Record Bureau, which said 19.1 per cent of the total convicts in prisons in India are aged 50 years and above.
''Similarly, 10.7 per cent of the under trial prisoners are aged 50 years and above. The total number of prisoners belonging to the age group of above 50 years and above stand at 63,336 (13.2 per cent of the total prisoners),'' the plea said. It said that similarly, the total number of prisoners who are above the age of 70 years as of May 16, according to the National Prisons Information portal is 5,163 except for the data from Maharashtra, Manipur and Lakshadweep as their statistics are not available. Giving a brief background to the case, the plea said that the top court on March 23, 2020, had directed the states and union territories to constitute an HPC, so as to determine the class of prisoners who can be released on emergency parole or interim bail.
The plea said that on April 13, 2020, the court clarified that it had not directed the states/union territories to compulsorily release the prisoners from their respective prisons and the purpose of the earlier direction was to ensure that the states/union territories could assess the situation in their prisons having regard to the outbreak of present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released. ''On the basis of such a direction, the States/ UTs constituted HPCs and most of the HPC have classified prisoners for being released on bail or parole on the basis of the gravity of the crime and the likelihood of the prisoners to misuse the concession granted to them,'' it said.
The plea said that as most of the categorization of prisoners is based on social conditions and are based on factors of administrative convenience, the HPCs have not taken into account the categorization of prisoners on the basis of their susceptibility to the infection and their need to be released on an urgent basis. ''The most susceptible ones here are the aged/ elderly prisoners, who have a higher chance of getting infected (specifically septuagenarian prisoners, that is above 70 years). However, on a positive note, some HPCs of the states have taken a step towards releasing such old age prisoners,'' it said. Giving details of the approach adopted by different states on the issue of release of elderly prisoners, the plea said that data of Gujarat and Rajasthan are the worst. With regard to Rajasthan, it said that according to data available on the National Prison Information portal regarding the number of aged prisoners in the central prisons, the total inmates are 9679, between 50-60 years (612), between 60-70 years (309) and above 70 years of age are 84 inmates.
Similarly, it said that in Gujarat there are 14,764 inmates. Of them, there are 1009 inmates between 50-60 years, 348 between 60-70 years and 90 inmates above 70 years of age. The plea said that prisons in Gujarat and Rajasthan are not according to the prescribed norms and are also densely packed as compared to their official sanctioned capacity. ''As such, there is every possibility that the miniscule section of the elderly prisoners in the prisons across the state shall fall prey to the infection. Although the High-Powered Committee of the states of Rajasthan and Gujarat have directed the release of prisoners pursuant to the directions of this Court, there is a need to consider the release of elderly prisoners on the basis of their vulnerability to the infection,'' the plea said. It said barring a few exceptions, some states have not taken necessary steps regarding the release of aged prisoners despite the deadly effects of the virus. ''It can be thus seen from the different approaches of the HPCs that there is no uniformity in this regard by the HPCs of different state and also there seem to be no uniform criteria adopted by the states to decongest the prisons where aged/elderly prisons are undergoing their sentence of imprisonment,'' it said.
The plea said that the release of elderly prisoners, irrespective of the nature of the offences, is necessary and at the same time feasible for practical reasons and should not in any manner pose any law and order difficulties. The plea in the alternative sought direction to the Centre, states and union territories to ensure that those elderly prisoners who are not willing to avail the temporary release are shifted to the most uncongested prisons and if possible, open prisons with adequate medical facilities.