The Human Cost of Clinical Trials in India

By Oshin Malpani on 26 of May 2020

The ever-growing demand for new drugs to ward off continuously evolving strains of diseases like AIDS and hepatitis makes clinical trials indispensable for ensuring present as well the future public well-being and more so in the current fight against the COVID-19 pandemic. However, out of thousands of newly discovered drug molecules, only a few hold the potential to be turned into viable drugs. Every molecule goes through a variety of tests, one of them being test of its toxicity and effectiveness on humans; for this, clinical trials are performed on human ‘subjects’ or participants. Multinational pharmaceutical and research companies across the world take up such biomedical trials to develop new drugs.

Due to such increased demand, the pharmaceutical industry is pushing for conducting more and more clinical trials. This requires a large and diverse set of volunteers. However, aware participants, stricter regulations and costly research makes it harder for them to enrol volunteers in large numbers in developed countries as compared to their developing or underdeveloped counterparts. Therefore, researchers from the wealthy, developed countries off-shore stages of their research to developing countries like India. According to the Drugs Controller General of India (DCGI), 72% of all the registered clinical trials being conducted in India are carried out by the pharmaceutical industry. Due to its significantly low costs, developed medical infrastructure, trained, English-speaking man power and a diverse, treatment-naive (untreated) population with most of the genetic varieties of the human race, makes India an attractive research hotspot.

Ethics and Clinical Trials – The Human Cost involved 

“…human beings have inalienable rights that supersede all other considerations that may be raised in the name either of science or of the general public welfare” (Topping, 1952).

There is an inextricable relation between health and human rights as, the manner in which a state accords rights to its citizens manifests in its health policies, programs, practices and their inclusionary or exclusionary nature, directly impacting public health. Further, violations of basic human rights have health impacts too, binding the protection of human rights and health in a dynamic relationship. Further, building upon Martha Nussbaum’s work on ethics, rights and capabilities, while human rights and capabilities are connected as violation of human rights inevitably leads to hampering of capabilities, their relationship should not be allowed to be proportional in availability; meaning that a group/section with weaker capabilities should not be seen as deserving only weaker, second class human rights than capable, privileged groups, enjoying first-class human rights.

Legally, the ethical treatment principles of “respect, beneficence and justice” for human subjects in biological trials, enumerated in the Nuremberg Code (concerning prevention of unethical “experimentations on human beings” like the ones conducted during the Nazi reign), the Belmont Report (concerning ethics in biological research) and guidelines issued by CIOMS (Council for International Organizations of Medical Sciences). These values recognize the fragility as well as the supremacy of human rights in clinical trials. They emphasise the requirement of a meditated, voluntary consent (without any coercion or pressure) complimented with the researcher’s personal liability to ensure the same – both in the developed and the developing countries. Thus, heath violations during clinical trials become human rights violations.

Sadly, history is rife with unethical and illegal practices being carried out in seemingly legal trials in under-developed and developing countries leading to loss of health and life ( example- Hepatitis E vaccine trial in Nepal, Nevirapine PMTCT trials in Uganda, Letrozole Streptokinase and Cilostazol trials in India, Fortified ORS trials in Peru and Trovafloxacin trials in Nigeria).

In India, majority of the research participants are constituted by the poor, weak, illiterate or marginalized literates; the vulnerable who cannot afford costly treatments of chronic diseases and are there for free medical treatment, nutritious food/dietary supplements and monetary incentives provided for participating in the trails. Due to the widespread illiteracy and unawareness among this group, it remains quite questionable if they understand the terms and conditions and the risks & the benefits associated with the trials due to their limited knowledge about the concept of clinical trials and lack of prior experience. Obtaining meaningful and informed consent to make sure that the participants understand everything about the trial then becomes complicated and tedious in such scenarios. The same is confirmed by multiple instances of deaths caused by unethical research being carried upon groups incapable of giving free consent – children, mentally challenged people and illiterates like tribals and low-castes Dalits. The unprivileged composition of trial participants lack access to adequate healthcare and medicines to counter trial-related complications, which affects their inalienable, fundamental health rights and health equity (ameliorating discrimination and its effects with regards to health), outrightly violating not only the basic constitutional values but also the values contained in the Constitution of the World Health OrganizationArticle 25 of the United Nations’ 1948 Universal Declaration of Human Rights and Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights.

Further, the involvement of off-shoring and foreign companies, lack of public evidence, high costs of litigation, and cultural-logistical issues in these trials make it difficult for participants to hold them liable in event of loss of health due to negligent trials. Further, the researching countries often differ vastly from the language and culture from the host country. This requires that the trials be localized as per the host country entailing translation of the consent forms, the term and conditions containing the dos and don’ts and the risks involved with the trial in the language privy to them.

The consequences of unlocalized trials or inaccurate translations can be very serious.

Firstly, it costs the comprehension on the part of the participant due to which, they fail to understand the risks and the side effects of the trial and don’t act as prescribed before and after medical intervention. It is further intensified by the poor readability of consent forms and a hard writing style, filled with technical terms, difficult grammar and the tendency of the researchers to hammer out every detail legally and factually so that later on, no loopholes can be found in such consent forms to hold them in a vulnerable position. In India, informed consent also suffers when doctors ask their patients to sign up for such trials as the pharmaceutical companies offer them incentives and perks for encouraging their patients to do so, leading to a serious conflict of interests, detrimental to the well-being of the patients.

This can lead to a disparity in the administration of the drug during the trial. Further, the likelihood of follow-ups and treatment of the side effects or underlying conditions reduces significantly as the participant fails to connect such side effects with these trials. It can even lead to serious health impairments and participant fatality in the worst of cases. All this affects the participant physically, emotionally as well as financially. In some cases, even if the participant goes for the treatment of these side effects, he/she ends up spending more money to recover their deteriorating health than he/she had originally received from participating in the trial. 

Secondly, it may lead to wrongful interpretations and conclusions on the part of the researcher, impairing the validity of the trial. Many such foreign companies often carry out these trials improperly and in a sub-par manner due to limitation of money and resources and our weak laws allow them to do so. The policies regarding the matter are very lenient as there is a lack of specific legislations and laws relating to biomedical ethics. This helps the companies escape the difficulty they face in the west of recruiting volunteers from a limited population base, high costs and strict bureaucratic regulations and legal accountability.

Another problem is that Indian government is aggressively promoting such trials to be conducted in India for getting inflows of foreign investments without first properly setting up policy frameworks and mechanisms to inspect such trial sites; audit clinical trial data and regulate them in the public interest, whenever required.

The trials conducted on human beings are held to be fair by the whole world in name of ‘beneficial research,’ but there is an inherent cost that India bears. It is the human cost; the one which the poor, weak and the vulnerable population of India bears. It is reasonable to say that while these trials cannot be stopped altogether, they can at least be regulated. The rampant, unregulated conduct of trials can be regulated effectively through a decent, ethical and moral framework of laws and regulations. The terms of the trials must be simplified and be clearly explained to the participants and special care should be taken in cases of the old, poor and illiterate; comprehension and informed consents should be a continuous process rather than a single event.

Continue reading

Resisting the ‘Master’: How Memory can Advance Accountability for Sri Lanka’s Disappeared

By Stephanie Nicolle

In January 2020, newly elected President Gotabaya Rajapaksa claimed that Sri Lanka’s disappeared were ‘dead’.   Thereafter, the instructions communicated by the country’s highest office were brief.  ‘Death certificates’ would be issued to the families after conducting ‘necessary investigations’. The unrelenting finality of this messaging signalled to the families that the state had chosen to move on, and so should they.

Sri Lanka’s disappeared are among the highest in the world, resulting mainly from a nearly 30-year war and two Southern insurrections. Every year, on May 18, Sri Lankans remember the lives lost due to the war and those forcibly taken away. However, the current state’s commitment to deliver genuine accountability draws scepticism from the families of the disappeared.  On the one hand, the ‘investigations’ will be conducted under a president who served as the defence secretary during the final war years and immediately after. During that time, Rajapaksa and the then administration stood accused of committing war crimes. These allegations have cast doubts over the independence of the proposed investigations. On the other, the president’s messaging reinforces a familiar state narrative that has often denied, downplayed or deflected enforced disappearance.

This article presents a case for the role that memory can play in challenging the sense of finality conveyed by the state.  First, it reviews the memory advanced by the state that has dominated Sri Lanka’s post-war years, which can be explained through the concept of a ‘master narrative’. Thereafter, it analyses an instance where individual memories were able to resist the master narrative to a certain extent. Finally, it argues for a more ‘public’ form of remembering to effectively resist the state’s narrative and amplify calls for accountability.


Unravelling Sri Lanka’s ‘Master’

Prof. Brian F. Havel offers a useful way of understanding the political form and function of a master narrative.  To Havel, a nation’s master narrative comprises official memory.  It is an effort by the state to prescribe its selective, top-down version of events. Especially in post-conflict societies, the master narrative is perpetuated to reconcile citizens with the state.  Its ideological function often manifests through state-authored memorialisation projects, which help entrench it.

Sri Lanka’s post-war state advanced a specific master narrative.  This narrative framed the war as a ‘humanitarian’ effort and valorised state officials as ‘war heroes’. Such language disallowed the space for any recollection beyond the parameters of this narrative, including enforced disappearances.  State-authored memorialisation projects, promoting military triumph, indicate this erasure of alternative memories.

Individual memories that contested Sri Lanka’s master narrative were often dealt with through various strategies: (1) refutation, (2) reframing such memories as ‘exaggerated’ or a ‘betrayal of the war heroes’, and (3) reconciling such memories with the master narrative.


Resisting the ‘Master’

Given the dominance of the master narrative, we may then ask, ‘Can the master narrative be effectively resisted?’

Certain instances in Sri Lanka’s post-war years suggest the possibility of limited yet effective resistance. One such instance is the ‘Memory Wall’ erected by the Office on Missing Persons (OMP) in 2019, where families of the disappeared were invited to commemorate their loved ones. Commemorating the disappeared at the OMP—a government body—was, arguably, a significant moment for resistance campaigns led by the families.

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‘Memory Wall at the Office of Missing Persons (OMP) in Sri Lanka’. Image by Saliya Pieris


At the outset, the Memory Wall, albeit a temporary structure, stood as a site of resistance. It was a testament to the years of individual memories and struggles to resist the state’s pervasive master narrative.  Concurrently, it indicated a slight change in the post-war state’s response to enforced disappearance—from years of denying and discrediting to an extent of respect and recognition.

The Memory Wall, which held personal photos and penned messages, also opened an avenue for broader conversations on memorialisation.  It gave families the freedom to decide the memories they were comfortable with displaying.  The memories were, therefore, theirs to keep or share. This way, the Memory Wall stood as a marked contrast to other post-war memorials that served to legitimise the state-authored master narrative.

However, the social impact generated by the Memory Wall was short-lived.  Its significance was, to a great extent, limited to an intimate, private realm comprising the families.  This limitation likely curbed its potential to create momentum around resistance campaigns.


Broadening the Resistance

To effectively resist the master narrative, individual memories need to transcend the private realm and penetrate the social realm of remembrance.  They need to become part of public memory. One approach resistance campaigns can use to draw public support is memorialisation.

Memorialisations draw various responses.  For some Sri Lankan families of the disappeared, they convey ‘an end’ to the hope of meeting their loved ones. However, transitional justice practitioners continue to highlight the value of memorialisations.

Memorialisations tend to have significant restorative potential.  For the victims of past abuses, they provide a kind of reparation by publicly calling out perpetrators and recognising victims’ memories.  For the community, they urge reflection and foster empathy.  To this end, they remind us of the importance of collectively ensuring non-recurrence.

Memorialisations also attract myriad voices that are beneficial for resistance campaigns. One benefit relates to overcoming barriers to resistance. To date, state-led intimidation and surveillance attempts to silence traumatic truths from becoming public.  A larger collective can help build solidarity and create a safe space for individuals to speak.  The second benefit relates to overcoming a drawback of individual memory.

Often, the significance of individual memory, which comprises lived experience, ceases to exist when the holder of this significance is no more. In Sri Lanka, at least 70 relatives of the disappeared have passed away without receiving answers. By appealing to public consciousness, resistance campaigns allow for individual memories and campaigns to become ‘public’ and live on, despite the death of an individual.

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‘A family member holds a photo of a disappeared loved one’. Image by Human Rights Watch

Part of memorialising Sri Lanka’s past atrocities relating to enforced disappearance is confronting the legitimacy struggles over memory.  That is, the right to determine whose memories are publicly acknowledged and how.  To facilitate an inclusive form of public memory, memorialisations must balance the need to respect individual memories with the need to create collective resistance.  Here, Sri Lanka may learn from countries like Argentina and Chile, which have and continue to engage in these conversations.  Both Argentina’s Parque De La Memoria and Chile’s Museum of Memory and Human Rights grappled with highlighting victim-centred accounts, the extent of state involvement, and creating a public push for accountability.

Sri Lanka’s chapter on enforced disappearance risks being closed by a state advancing a sanitised narrative of the past.  By broadening the resistance, Sri Lanka finds itself as having an avenue to keep the space for accountability open.  In the pursuit of justice, this avenue is worth considering to firmly resist the ‘master’.


StephanieNicolle - headshotStephanie Nicolle works as a researcher in Sri Lanka. Her research interests mainly include ethno-religious conflict, memory studies, media ghettoisation and postcolonial discourse. She graduated from the University of Colombo with a BA (Hons.) in English and minors in International Relations and Sociology.










Spotlight on Sami Al Haj

By Pauline Canham

Each month, the HRC Blog will feature a significant figure, or team from the Human Rights community to go under the Spotlight, answering questions put by students from Essex University.  This month, we feature Sami Al Haj.


Image courtesy of Al Jazeera Media Network

About Sami

Sami Al Haj is the Director of the Centre for Public Liberties & Human Rights at the Al Jazeera Media Network (AJMN) in Doha, Qatar.  He was born in Sudan and started working for Al Jazeera as a cameraman in 2001.  Shortly after the events of 9/11, he was sent to cover the US invasion of Afghanistan in October 2001, an assignment that would change his life forever.  After two months, while crossing from Kandahar across the border into Pakistan, Sami was arrested and detained by Pakistani Intelligence on 15th December 2001 and subsequently handed over to the Americans.  Nothing could have prepared Sami for the horrors that were to come and the course that his life would take as a result.  After some time at the infamous Bagram detention facility, where he experienced harsh and humiliating treatment, he was transferred to a facility in Kandahar and then on to Guantanamo Bay, where he remained as Prisoner 345 for 6 years, without charge.



While there, according to Sami’s lawyer and founder of Reprieve, Clive Stafford Smith, “Sami endured horrendous cruelty – sexual abuse and religious persecution”. He was beaten, deprived of sleep and force-fed after going on hunger strike.

On 1st May 2008, Sami was released without charge.  He said that he was glad to be free but sad that his ‘brothers’ remained in the hands of “people that claim to be champions of peace and protectors of rights and freedoms.  But a true just peace doesn’t come from military force or threats to use…bombs or economic sanctions.  Justice comes from lifting oppression and guaranteeing rights and freedoms and respecting the will of the people…”

Shortly after his release, and his long awaited reunion with his wife and son, Sami returned to Al Jazeera, where he created a new team dedicated to the field of human rights and civil liberties.



Students’ Questions Answered

Sami_al_haj_smSami was gracious enough to allow the students at Essex an opportunity to send him and his team some questions about his experiences and ongoing work in the field of human rights:


Q: It is almost 20 years since 9/11 – What are the biggest changes faced by journalists and humanitarian aid workers operating on the ground in war zones, and have the policies of the war on terror had a ‘chilling effect’ on journalists’ ability to hold truth to power?

A: Regrettably,  journalists are now facing a far worse reality with regard to field coverage. Authorities, militias, and armed groups all endeavour to suppress the voice of truth.   Counter- terrorism policies went to the extent to limit the range of ethical journalism and criminalize journalists.  Press freedom has been compromised all over the world.


Q: To what extent do you believe that the CIA Enhance Interrogation Program at Abu Ghraib and other so called ‘black sites’ emboldened repressive regimes in their own torture practices?

A: Tyrants and dictators felt at ease seeing the free world legitimizing water-boarding and torture, we can see that in the Middle East and elsewhere.


Q: After your experiences at Guantanamo, do you believe in the universality of human rights both as a concept and in practice?

A: Indeed. My personal experience has provided me with a more humane universal vision and understanding.   I believe human rights should be granted to all individuals regardless of their race, religion or nationality.   Human Rights mechanisms and intentions are good.   However, unfortunately, in practice, things are quite different.


Q: Were you told why you were being detained in Guantanamo?   And what gave you the strength to endure your detention?

A: My guards told me that I was being brought to Guantanamo and I would never leave alive.   No information was given except that YOU ARE GUILTY, YOU ARE A TERRORIST!!   I endured due to my strong belief in Allah, the Most Gracious, the Most Merciful.  Throughout my tormenting experience, I believed that I would go out and support my family.


Q: To what extent do we see a repetition of the policies of exceptionalism that we saw immediately after 9/11 playing out now in Syria, and how can we ensure a fair judicial process to those accused of involvement with ISIL?

A: Unfortunately, all Middle Eastern regimes  do not believe in an independent judiciary system, and the British and Americans do not want the defendants to stand trial in London nor in Washington DC.


Q: How can journalists, humanitarian workers and human rights practitioners maintain their safety in hostile environments?

A: They should adhere to safety guidelines, and subject themselves to strict professional training.   At our Centre at Al Jazeera, for example, we have a Safety Section, and we provide journalists in the Middle East and elsewhere with workshops on the necessity of safety.



Q: Can you tell us more about your team and objectives at Al Jazeera?

A: The Public Liberties and Human Rights Centre first started as a specialised desk within the Al Jazeera Arabic newsroom in 2008 and expanded to become a Centre in 2015.  The Centre now has a team of 14, all based at Al Jazeera’s headquarters in Doha, spread between the Arabic and English newsrooms and online, writing articles and doing research.  Our aim is to ensure human rights content across all AJMN platforms, to raise awareness and competence of international humanitarian law with journalists in the field,  and inform the public about human rights issues and legislation.  In addition, we endeavour to build and develop strategic partnerships with international, regional and local organisations to identify human rights violations and contribute to the promotion of freedom of expression and the press.


Q: How does Human Rights fit with Al Jazeera’s core business?

A: Human Rights issues are no longer fleeting news, but at the core of what the Al Jazeera Media Network does.  Al Jazeera’s interest in human rights has clearly emerged as a key element during analysis and discussion both in general and more particularly in the area of press freedom and the detention of journalists.


Q: What achievements you are most proud of in the work that you have done over the last 12 years?

A: I believe, over the last 12 years, we have done very well with regard to spreading the culture of human rights in the Middle East and North Africa.  We are now an effective partner of UNESCO, specifically with respect to Press Freedom and we work closely with the International Press Institution.   Our editorial section has contributed over 5,000 pieces and 6 full length documentaries and our partnership section has held more than 60 workshops with international experts from the UN and other global institutions benefitting over 1000 journalists from Al Jazeera and other media organisations.  We are also very proud of our Global Solidarity Initiatives, working in partnership with other media organisations in the areas of press freedom, anti-hate speech, protection of journalists and humanitarian workers, safeguarding displaced persons, rights of prisoners and detainees, and consolidation of transitional justice and the rule of law.


Q: What do you see as the biggest challenges and the top 3 priorities for human rights advocates around the world?

A: The biggest challenge right now is the rise of the far right all over the globe.  The top 3 priorities are Right to Religion, Right to Health and Press Freedom.


Q: What one piece of advice would you give to a human rights student just starting out on their career?

A: Never compromise.


My thanks to Sami and his team for engaging so generously with the questions from our students.  The HRC Blog Editorial team will be publishing further Spotlights in the coming weeks and months and welcome suggestions from students, staff and alumni for subjects they’d like to see featured.



The Plight of Language Rights Violations in Tibet

By Aryan Garg, published on 12 May 2020 

(In 2010, China officially announced its “Bilingual Education Policy” for subsistence and promotion of local languages in the schools of the minority areas of the country. On account of the said policy, institutions in the Tibet Autonomous Region (TAR) were given the choice to use Tibetan as a medium of instruction. However, according to the latest report by the Human Rights Watch, the condition seems otherwise.)

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Pic Credits – Unsplash


The situation of language autonomy in Tibet has been depressing since the advent of PRC’s Education Policy in the region. The official stance of the government is the promotion of Chinese and Tibetan together, but in the veil of “National Coordination,” the former is promoted at the cost of the latter. Non-Tibetan-Speaking teachers are filling the schools of Tibet. Tibetans are being taught in the same class along with the migrant Non-Tibetans under the “MixedClasses” Policy. An increased number of Boarding Schools are started under the “Concentrated Schooling” Policy to maximise diversity and culture mingling, but this, in turn, separates the children from their families and culture. Moreover, the curriculum for the Tibetan-Speaking students is not well developed, which in turn forces them to shift to the other language, i.e. Chinese. Learning Chinese also becomes an obligation as it is the standard language used in any government or other official work. Furthermore, recruitments in Tibet requires good command over the Chinese Language. Tibetans who do not know Chinese cannot find work.


There have been a large number of protests, in the forms of petitions, demonstrations, slogans and letters in Tibet following the Bilingual Education Policy. This started a decade back when about a thousand Tibetan students protested in Qinghai province of China against the Language Policy. A protest again followed in 2012 when officials in Qinghai province tried to introduce Chinese curriculum and textbooks in Tibetan Schools. Between 2015 and 2016, several petitions were filed concerning the lack of Tibetan-language teaching in schools in Qinghai and an increase in Chinese-language teachers in primary, secondary and high schools. Furthermore, there have been instances wherein people were detained when they spoke for their Language Rights and Individual Identity.


The shift in the curriculum of the schools of Tibet not only concerns International Law but also Domestic Law. It is pertinent to mention that the Constitution of the People’s Republic of China protects the educational rights of the linguistic minorities in the country. This is coupled with the Regional National Autonomy Law which gives freedom to minority schools for using their mother tongue as a medium of instruction. Moreover, Article 30 of the of the UnitedNations Convention on the Rights of the Child states that “In those States in which ethnic, religious, or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language.” It is to be noted that China is a signatory to the treaty and has ratified it. Similarly, Article 2 of the Universal Declaration of Human Rights recognises language identity as a human right.

Notably, China has been accused of violating the Language Rights of the Tibetans in the past. This included theCommittee on the Rights of the Child, which, in 1996 asked the Chinese Government to allow the people of the minority areas to gain knowledge in their local language, and additionally learn Chinese. Similarly, the United Nations’ Committee on Economic, Social and Cultural Rights (CECSR) also raised questions concerning the Linguistic and Educational Rights of the Tibetans and the Uighurs.


One needs to understand that keeping minority language alive requires more than just the native language component in the curriculum. One should also pay heed to the content of the curriculum. It is often seen that the content in the minority language schools often contains a hidden assimilationist material which promotes the majority language and tends to perplex children of their own identity. It should be the responsibility of the schools to identify and weed out such content to protect their identity. Furthermore, it should be the duty of the educators to show greater appreciation and respect for the culture of the students. Perceptions that Chinese is better than the local language should not be transmitted. Also, the students must be exposed to real-life activities that would help them to connect with their culture and to appreciate the culture of others.

Apart from this, Good Governance always remains an option for protecting the overall Rights of the minority community. Deliberation in the form of identification of the problems, dialogue and participation can lead to the development in the form of a greater understanding amongst the communities. This includes strict adherence to the guidelines for Language Rights of Linguistic Minorities issued by the Office of the High Commissioner, United Nations Human Rights (UNHR). Opportunities should be enhanced for the people of the minority areas so that they can find employment and can live their lives peacefully.


The promotion of Minority Language is the basis of promotion of Minority Identity which requires policies to maintain, reproduce and further develop their culture. The issue do not only concern the development of the minorities culture but the generation of confidence among minorities about the protection of their identity. The current acts of the Chinese Government are not only hindering the Rights of the Tibetans but are also deviates them from their culture, ethnicity and identity. The results of the same are visible in Tibet. Continue reading

COVID-19: India’s Overcrowded Prisons Once Again Under the Spotlight

by Ruchir Joshi and Esha Joshi

On 16th March 2020, the Indian Supreme Court (“SC”) took suo moto cognizance of a “high risk of transmission of Covid-19 to prison inmates”, and issued notices to the States and Union Territories, directing them to submit written replies, containing particulars of the steps being taken, so as to prevent the spread of the novel coronavirus. The court observed that overcrowding of prisons, results in the violation of social distancing norms, and thus, poses a great threat during the ongoing pandemic. In the furtherance of which, on 23rd March, it was proposed that parole or interim bail may be granted to prisoners convicted of, or charged with offences involving a prison term of seven years or less.

Overcrowding: Not really a new challenge

It is not the first time, that the court has taken the matter of overcrowding into cognizance, in 1966, the SC in Rama Murthy vs State of Karnataka, identified up to nine issues that needed to be addressed in regards to the prison system. Of these, overcrowding was at the forefront. This problem is not new and has been affecting Indian prisons for long. As early as the late 1950’s, it was observed by the All India Jail Manual Committee that “overcrowding in prisons has assumed the proportions of a major problem for the correctional administration.”

Since then there has been a steady increase in the overcrowding of jails. The size of the prison population throughout India is growing, placing an enormous financial burden on governments. It has been found that the prison population in India has taken a considerable jump from 2000 to the present day.

In the year 2000, the total number of prisoners which included the sentenced and the pre-trial detainees were 272,079, this increased to 466,084 in the year 2018, which has made India the fifth largest prison population in the world. Moreover, Indian prisons are severely stretched, with the current number of prisoners going 17.6% beyond the sanctioned strength.

Even though the courts have expressed their concerns repeatedly, no concrete steps have been taken yet. The National Human Rights Commission in its Annual Report stated that the primary reason for overcrowding, is the increased number of under-trial prisoners and the extended periods of time for which they are confined. The National Crime Record Bureau’s data shows that 69.42% of the total prisoners consist of undertrials. As, noted by the SC in Hussainara Khatoon’s case, this prevalence of undertrials can be attributed to the sluggish pace of trials, which is a crying shame on the judicial system.

Overcrowding: Violation of Human Rights

The ramifications of overcrowding are multifarious as it creates problems in the management of prisons and this results in deleterious effects on the health of prisoners. In 2018, again the SC emphasised the need for immediate action and asked all the High Courts to take up the matter suo moto as the issue involves a violation of Human Rights. By taking a strong exception to overcrowding, the SC said: “prisoners also have human rights and they cannot be kept in jail like animals.”

Overcrowding in prisons poses a serious health hazard because of the inhumane living conditions, poor nutrition and lack of sanitation. Overcrowding has led to India’s non-compliance with UN Standard Minimum Rules for the Treatment of Prisoners. The Rule 20, lays down the minimum quality requirements of food, which is blatantly violated by India, as the resources available are not in proportion to the overcrowded prisoners. Apart from the food quality being worse, most of the prisons in India have acute shortage of latrines and urinals due to overcrowding, in contravention of Rule 12, thus posing a serious threat to the health of the prisoners.

As, suggested by many reports there is a big gap which exists between the written policy and the actual practices in India. The report by UK Home Office on Prison Conditions in India states that most of the Indian jails fail to meet the minimum United Nations standards for such facilities. Even, the US Report on Human Rights practices, suggests that the Prison Conditions in India were frequently life threatening due to the above-mentioned problems. Thus, such overcrowded prisons results in the prisoners being riddled with various diseases and vulnerable immune systems.

Covid-19: Vulnerable Prison System in India

In the light of Covid-19, this has made prisoners more susceptible to contraction and thus made containment of the virus harder. The greater susceptibility of prisoners to this virus, due to the pathetic living conditions they are subjected to, poses a serious threat to their life. This is further aggravated by a poor prison health system in which there is lack of officers and supervision. It has been found that in prisons there are only 1,914 medical staff against the sanctioned strength of 3,220. Seeing the overcrowding rate, automatically the need for medical staff is higher, but the ground situation is different.

Hence, overcrowding, by causing unreasonable burden on the already inadequate resources,  not only violates the prisoner’s right to live in a clean and healthy environment but also the basic fundamental right to live with dignity guaranteed under Article 21 of the Indian Constitution. Moreover, in these pandemic situations, by putting prisoner’s life at risk, it further hampers their right to life.

The measures regarding the release and parole of prisoners announced by the SC, in light of the pandemic can only be considered as temporary. These measures have to be viewed sceptically for various reasons. Firstly, in the cover of administrative inefficiency, responsibility is being shifted onto law-abiding citizens and an unnecessary burden is being imposed on them. Secondly, there being no certainty as to how long it will take to contain this virus, the measures taken by the government seem short sighted. Lastly, prisons in their current state will always remain vulnerable to such a situation. It is therefore contended that, it is the need of the hour to modify the prison system and to provide a concrete solution to this problem.

Ruchir Joshi & Esha Joshi  B.A.LL.B.(Hons.) students at National Law University, Nagpur.