Ramesh Kaushik Vs. B. L. Vig, Super Intendent
& ANR  INSC 99 (30 April 1980)
REDDY, O. CHINNAPPA (J) SEN, A.P. (J)
CITATION: 1981 AIR 1767 1980 SCR (3) 929 1980
SCC Supl. 183
Jail Jurisprudence-Prison torture and
Constitutional Jurisdiction of the Court-Treatment for 'B' class and 'C' class
in Tihar Jail whether offends Article 14 of the Constitution-Constitution of
India Articles 21, 19 and 14.
Kaushik, a lifer lodged in Tihar Jail moved a
quasi habeas corpus petition bitterly complaining with facts and figures, of
the terror and horror, physical, and psychic, let loose on him and other jail
mates by a crypto criminal combination of senior officials and superior
prisoners, thereby making the prison life within that walled world such a
trauma and torment the law never meant under the sentence suffered at the hands
of the Court. Briefly, the petitioner alleged that his life in jail is
subjected to intimidation by overbearing 'toughs' inside, that he is forced to
be party to misappropriation of jail funds by and bribery of officers, that
homosexual and sexual indolence with the connivance of officials are going on,
that smuggling in and out is frequent and drug racket common, that alcoholic
and violent misconduct by gangs like those involved in Bank Robbery and other
notorious cases are a menace to quieter prisoners and the whole goal of
reformation of sentences is defeated by this supercrime syndrome. On this the
Court appointed Sri Subodh Markedneya as amicus curiae to inquire into the
allegations and submit a report. The respondent Delhi Administration
transversed the grounds in the petition.
Allowing the petitions, the Court
HELD: 1. Prison torture is not beyond the
reach of the Supreme Court in its constitutional jurisdiction. [931 F] Were
there a modicum of truth in the disclosures made of vice and violence, overt
and covert, in the goings on in Tihar such an institutional outrage would make
our constitutional culture blush and our judicial punishment 'guilty'
procedure. And on the materials placed before the Court there is ground enough
to exercise our exceptional but undoubted jurisdiction to ensure some minimum
of social hygiene and banishment of licentious excesses lest the sentence of court
be frustrated in its dual ends of deterrence and rehabilitation by prison
pathology. [932 B-C]
2. When police and prison torture is
escalating in our human rights era, courts owe a duty to society not to ignore
such a dangerous reality. Under our Constitution, deprivation of personal
liberty as penal policy is purposive and the Penal Code itself is valid because
the imprisonment of the criminal is reasonable, not arbitrary, and is
sanctioned as a measure of social defence and individual rehabilitation. A
court sentence does not deprive the prisoner of his fundamental rights. To
reform and deter the criminal and to work out that process geared to social
defence, the convict is cast into prison-not to make him more hardened, more
brutal, more cunning and dangerous to society. This 930 raison d'etre of
penological institutions in our Gandhian country, with humanism as basic to the
constitutional scheme, cannot be written off without peril. A Prison term in
Tihar Jail is not a post graduate training in tough crime. No sentencing judge,
high and low should hang his helpless head in frustration and humiliation
because institutional alternations and personnel perversions have sullied and
stultified the justice of his sentence. [932 F- H, 933 A, B, C] Sunil Batra v.
State (Delhi Administration),  2 SCR 557; referred to.
3. The human rights of common prisoners are
at a discount and, in our Socialist Republic moneyed 'B' class convicts operate
to oppress the humbler inmates. There cannot be inequality in prison too on the
score of social and financial status. Bank robbers in 'B' class because they
are rich by robbery and nameless little men in 'C' class because they are only
common Indians! Article 14 is suffocated if this classification is permitted,
and yet that, according to rule itself, is prevalent. Therefore, the Supreme
Court must act, will act, to restore the rule of the law and respect of the
residual fundamental rights of any harassed petitioner. [933 D-F].
4. The writ jurisdiction of the Supreme Court
must be equal to the needs of human rights and human wrongs. In Sunil Batra (1)
v. Delhi Administration,  1 S.C.R.
393, this Court held that fundamental rights
did not forsake prisoners and that the penological purpose of sentence was
importantly, reformatory even though deterrent too. In the second Sunil Batra's
case after a long discussion covering.
American Rulings U.N. specifications of the
Standard Minimum Rules for prisons and the implications of Articles 21, 19 and
14 read in the light of Maneka Gandhi's case,  1 S.C.C. 248, this Court
accented on the habilitative value contained in Rule 58 of the International
Standard Minimum Rules. Jural justice thus set make the Court an activist
instrument of jail Justice. [934 A-B, 935 A-B, 938 G]
5. In the instant case, even after making a
liberal allowance for adulteration and distortion, the miasmatic process and
restore basic humanism inside this penal institution where sentences,
punitively sent by court, are subjected to unbearable tensions and torments on
their physical and moral fibre, thanks to the prison milieu being what it is.
[938 G-H, 939 A] 'B' class status for prisoners is going by averments in the
petition, a pampering process much abused by officials and, in a 'class'
culture, obnoxious to the Constitution.
Equality before the law cannot co-exist with
affluent blackguards being looked after with luxury and solicitude and lawly
indigents being treated as pariahs inside the prison. There is reference in the
petition to the three dangerous criminals involved in a big Bank Van Robbery
Case being lodged in Ward 14 as 'B' Class VIPs, who have, on top of other
advantages, certain facilities. It is fairly clear that many vices, including
drug rackets, occasional violence, smuggling and trafficking in many other
impermissible things, have hospitable home in this penitentiary. The
Administration has conscientious responsibility for the decency and dignity,
for correctional obligations and social hygiene inside prison houses and the
time is long overdue for a thorough overhaul of the prison management in Tihar.
[940 C-E, 941 E-F].
6. The crisis in our prisons, the collapse of
values in these campuses, the inner tension 'red in tooth and class' the
corruption that makes for sensual indul- 931 gences, the barbarities that
harden the convicts and never heal them-all these processes can be reviewed and
humanization resorted if, only if, our philosophy towards crime and punishment
change. If vengeance is the spirit of punishment violence will be the prison
way of life. [944 C- D] [The Court, keeping in view the principle of natural
justice and the limitation of Court time directed a judicial enquiry by the
District and Sessions Judge of Delhi who is a member of the Board of Visitors
stressing the points to be covered in particular.]
[ORIGINAL JURISDICTION: Writ Petition Nos.
393 & 549 of 1980.
(Under Article 32 of the Constitution) S.
Markendaya (Amicus Curiae) for the Petitioner.
M. N. Abdul Khader and Miss A. Subhashini for
The Judgment of the Court was delivered by.
KRISHNA IYER J. Is a prison term in Tihar
Jail a post- graduate course in crime? Such is the poignant issue that emerges
from the facts of this case.
'The fundamental human right is not to a
legal system that is infallible but to one that is fair'-these great words of
Lord Diplock in Maharaj v. Attorney General of Trinidad and Tobago (No.2)
trigger our jurisdiction to ensure a fair legal deal to the prisoner whose
petition to this Court makes frightening exposures about the insiders of
Delhi's Central Jail.
Kaushik, a 'lifer' (to use jail jargon), now
lodged in the Tihar, Central Jail, has moved this quasi-habeas corpus petition
wherein he bitterly complains with facts and figures, of the terror and horror,
physical and psychic, let loose on him and other jail-mates by a
crypto-criminal combination of senior officials and superior prisoners, thereby
making the prison life within that walled world such a trauma and torment the
law never meant under the sentence suffered at the hands of the court. Prison
torture is not beyond the reach of this Court in its constitutional
jurisdiction and so we appointed Shri Subodh Markandeya as amicus curiae and
directed the Superintendent of the Jail to make available for him facilities to
meet the prisoner Kaushik and to present, after a brief fact-finding enquiry,
the facts necessary for taking further action, if any. Shri Markandeya has,
with a gush of gusto, executed his work of assisting this Court and made a
report, and we record our appreciation therefor. What makes law a force is a
lawyer with a cause.
932 The Delhi Administration has responded
through counsel and traversed the grounds in the petition but Shri Abdul
Khader, appearing for the State, has fairly agreed that the Superintendent of
the Central jail, far from fighting shy of a probe into the prison management
and the shocking aspersions cast on it would welcome a judicial investigation
where he could prove his innocence of the foul charges levelled.
Were there a modicum of truth in the
disclosures made of vice and violence, overt and covert, in the goings-on in
Tihar such an institutional outrage would make our constitutional culture blush
and our judicial punishment 'guilty' procedure. And on the materials placed before
us there is ground enough to exercise our exceptional but undoubted
jurisdiction to ensure some minimum of social hygiene and banishment of
licentious excesses lest the sentence of court be frustrated in its dual ends
of deterrence and rehabilitation by prison pathology.
Briefly, the petitioner alleges that his life
in jail is subjected to intimidation by overbearing 'toughs' inside, that he is
forced to be party to misappropriation of jail funds by and bribery of
officers, that homosexual and sexual indulgence with the connivance of
officials are going on, that smuggling in and out is frequent and drug racket
common, that alcoholic and violent misconduct by gangs like those involved in
Bank Robbery and other notorious cases are a menace to quieter prisoners and
the whole goal of reformation of sentences is defeated by this supercrime
syndrome. Maybe, like Oscar Wilde, the petitioner, in flinging allegations,
considers that "moderation is a fatal thing. Nothing succeeds like
excess". Making a large margin for unveracious dilution, still if a
fragment of truth survives something is rotten in the state of Denmark'. This
Courts' writ must remove from Tihar face such indelible stain and incurable
When police and prison torture is escalating
in our human rights era, courts owe a duty to society not to ignore such a
dangerous reality. "At this time the lack of law and order is especially
of prime concern. Our courts must bear their share of blame and shame for this
Under our Constitution, deprivation of
personal liberty as penal policy is purposive and the Penal Code itself is
valid because the imprisonment of the criminal is reasonable, not arbitrary,
and is sanctioned as a measure of social defence and individual rehabilitation.
A court sentence does not deprive the prisoner of his fundamental rights as a
Constitution Bench., in Sunil Batra's case recently expounded.
933 To reform and deter the criminal and to
work out that process geared to social defence, the convict is cast into
prison-not to make him more hardened, more brutal, more cunning and dangerous
to society. This raison d'etre of penological institutions in our Gandhian
country, with humanism as basic to the constitutional scheme, cannot be written
off without peril. And so it is that, after reading the fearful circumstances
revealed in this case we focussed sharply, right at the outset, the grave
issue;, Is a prison term in Tihar Jail a post-graduate training in tough crime?
Is an invisible 'carser' mafia in defacto management of this penal institution?
Should every sentencing judge, high and low, hang his helpless head in
frustration and humiliation because institutional aberrations and personnel
perversions have sullied and stultified the justice of his sentence? We have
been told by counsel for the State that several hundreds of VIPs have
(ceremonially) visited and, of course, complimented the jail management. These
conducted tours cannot, in themselves, contradict the contention that this
campus of correction has degenerated into a human zoo. We keep an open mind and
examine the facts but must confess that the Tihar Jail has come up for unhappy
judicial notice too often in the past. We must also stress that the human
rights of common prisoners are at a discount and, in our Socialist Republic,
moneyed 'B' class convicts operate to oppress the humbler inmates. Can there be
inequality in prison too on the score of social and financial status? Bank
robbers in 'B' class because they are rich by robbery and nameless little man
in 'C' class because they are only common Indians! Article 14 is suffocated if
this classification is permitted, and yet that according to rule itself, is
prevalent as this Court has even in earlier cases pointed out. This Court must
act, will act, to restore the rule of law and respect the residual fundamental
rights of any harassed petitioner.
We are aware that general charges and
sweeping complaints may tarnish innocent officers. We do not intend to find
fault with any until proof is forthcoming. We are conscious that correctional
orientation and cautious humanization have changed the attitudes of many jail
officials. To blame them is beyond our purpose or power but to protect the
caged humans from torture, gross or subtle, beyond what the law permits is our
function, indeed, our duty. From this perspective we may rapidly survey the
circumstances and mould the reliefs.
Prison Jurisprudence, developed through
case-law and derived from constitutional law, already exists. As a
jurisdictional matter and background-setter we may briefly refer to some of
these aspects 934 before we discuss the controversial questions. In the Sunil
Batra Case the Constitution Bench brushed aside the 'hands off prisons'
doctrine, upheld the fundamental rights of prisoners, though circumscribed
severely by the reality of lawful custody. Desai, J., speaking for three of his
colleagues and broadly concurring with the fourth clarified two positions (a)
that fundamental rights did not forsake prisoners, and (b) that the penological
purpose of sentence was, importantly, reformatory, even though deterrent too.
In a later case, Sunil Batra v. Delhi Administration (supra) another bench
The court has a continuing responsibility to
ensure that the constitutional purpose of the deprivation is not defeated by
the prison administration. In a few cases, this validation of judicial
invigilation of prisoners' condition has been voiced by this Court and finally
reinforced by the Constitution Bench in Batra (supra).
The Court need not adopt a "hands
off" attitude ....in regard to the problem of prison administration.
It is all the more so because a convict is in
prison under the order and direction of the Court.
Under the caption "Retention of
Authority over Prisoner by Sentencing Judge" (Krantz notes).
As noted by Judge Lay in a Judicial Mandate,
Trial Magazine (Nov.-Dec. 1971) at p. 15 It should be the responsibility of the
court in imposing the sentence to set forth as it would in any equitable
decree, the end to be achieved and the specifics necessary to achieve that
purpose. If then, we are to have accountability in the execution of the
sentence, courts must make clear what is intended in the imposition of the
sentence. Every sentence should be couched in terms similar to a mandatory
In this manner, the penology system is to be
held to account if the government does not faithfully execute the order.
In other words, the sentencing court should
be required to retain jurisdiction to ensure that the prison system responds to
the purposes of the sentence.
If it does not, the sentencing court could
arguably have the authority to demand compliance with 935 the sentence or even
order the prisoner released for non-compliance.
Whether inside prison or outside, a person
shall not be deprived of his guaranteed freedom save by methods, 'right, just
A long discussion covering American rulings,
U.N. specifications of the Standard Minimum Rules for Prisons and the
implications of Arts. 21, 19 and 14 read in the light of Maneka Gandhi's case
led this Court in Sunil Batra (supra) to accent on the habilitative value
contained in Rule 58. of the International Standard Minimum Rules:
The purpose and justification of sentence of
imprisonment or a similar measure deprivative of liberty is ultimately to
protect society against crime.
This end can only be achieved if the period
of imprisonment is used to ensure, so far as possible, that upon his return to
society the offender is not only willing but able to lead a law-abiding and
self- supporting life.
The action-oriented conclusion in that
judgment, which bind the State, need re-emphasis since die-hard, practices
persist. We repeat some of them here :
Lawyers nominated by the District Magistrate,
Sessions Judge, High Court and the Supreme Court will be given all facilities
for interviews, visits and confidential communication with prisoners subject to
discipline and security considerations. This has roots in the visitorial and
supervisory judicial role. The lawyers so designated shall be bound to make
periodical visits and records and report to the concerned court results which
have relevance to legal grievances.
Within the next three months, Grievance
Deposit Boxes shall be maintained by or under the orders of the District
Magistrate and the Sessions Judge which will be opened as frequently as is
deemed fit and suitable action taken on complaints made. Access to such boxes
shall be afforded to all prisoners.
District Magistrates and Sessions Judges
shall, personally or through surrogates, visit prisons in their jurisdiction
and afford effective opportunities for ventilating legal grievances, shall make
expeditious enquiries there into and take suitable remedial action. In
appropriate cases reports shall be made 936 to the High Court for the latter to
initiate, it found necessary, habeas action.
XX XX XX No solitary or punitive cell, no
hard labour or dietary change as painful additive, no other punishment or
denial of privileges and amenities, no transfer to other prisons with penal
consequences, shall be imposed without judicial appraisal of the Sessions Judge
and where such intimation, on account of emergency, is difficult, such
information shall be given within two days of the action.
XX XX XX The State shall take early steps to
prepare in Hindi a Prisoner's Handbook and circulate copies to bring legal
awareness home to the inmates. Periodical jail bulletins stating how
improvements and habilitative programmes are brought into the prison may create
a fellow-ship which will ease tensions. A prisoners' wall paper, which will
freely ventilate grievances will also reduce stress. All these are implementary
of s.61 of the Prisons Act.
XX XX XX The prisoners' rights shall be
protected by the court by its writ jurisdiction plus contempt power. To make
this jurisdiction viable, free legal services to the prisoner programmes shall
be promoted by professional organisations recognised by the Court such as for
e.g. Free Legal Aid (Supreme Court) Society. The District Bar shall, we
recommend, keep a cell for prisoner relief.
How far have these directives been
implemented, especially to the extent they affect the present petitioner? We
will examine it presently, but before that, some materials about this jail and
its way of life is needed to appreciate where the truth lies, as between
assertions and denials.
In the 2nd Sunil Batra case- the
Superintendent of the Tihar Jail testified:
A number of prisoners in the Tihar Jail are
habitual offenders, professional criminals who have been inmates of the Jail from
time to time....It has been noticed that these types of prisoners have been
able to develop a certain rapport with some 937 of the lower staff in the jail
namely Head Warders, Warders etc. and obtain certain facilities illegally
including smuggling of number of items e.g. drugs etc.
for their use. It may also submitted that to
check smuggling of narcotic drugs against prisoners who indulge in such
activities 30 cases of narcotic offences were got registered against the
prisoners with the Janakpuri Police Station during this year...It may also be
mentioned that due to paucity of accommodation, the said jail is occupied by
double the number of prisoners than it is otherwise authorised.
In that very case, the Court had occasion to
observe, on the materials present there:
"Since many officers busy themselves
with production of prisoners in court, the case of the Superintendent is that
the other prisoners "try to do mischief, make thefts of other prisoners
who go to work, smuggle things and even resort to assaults." The crowning
piece is that the jail officials themselves are allegedly in league with the
criminals in the cells. That is, there is a large network of criminals,
officials and non-officials in the house of corrections Drug racket, alcoholism,
smuggling, violence, theft, unconstitutional punishment by way of solitary
cellular life and transfer to other jails are not uncommon." In that case,
Dr. Chitale, who appeared for the prisoner, brought to our notice a literary
work written by Shri Kuldip Nayar "In Jail" where the author has
"......one could get as much money as
one wanted from outside against a price. There was a money order and mail
service that perhaps was more dependable than what the postal department could
For instance, when a prisoner in my ward
wanted two hundred rupees, he sent a note through a warder to his people in old
Delhi and in less than twenty-four hours he had the money. He paid sixty-six
rupees as collecting charges-thirty-three per cent was the prescribed
"money-order charges.".......Dharma Teja, the shipping magnate who
served his sentence in Tihar, for instance, had thousands of rupees delivered
to him, we were told. And if one could pay the jail functionaries one could
have all the comforts one sought. Teja had all the comforts-he had an air
cooler in his cell, a radio-cum-record player set and even the facility of
using the 938 phone......Haridas Mundhra, a business man who was convicted of
fraud, was another rich man who spent some time in Tihar. Not only did he have
all the facilities, but he could also go out of the jail whenever he liked, at
times he would be out for several days and travel even up to Calcutta. All
this, of course, cost a lot of money. An even richer prisoner was Ram Kishan
he spent most of his jail term in hospital.
He was known for his generosity to jail authorities, and one doctor received a
car as a gift.
But more than businessmen it was the
smugglers jailed in Tihar who were lavish spenders. Their food came from Moti
Mahal and their whisky from Connaught Place. They had not only wine but also
women. "Babu ji, not tarts but real society girls," one warder said.
The women would be brought in when "the sahiblog" went home for
lunch, and their empty offices became "recreation rooms".
Corruption in jail was so well organised and
so systematic that everything went like clockwork once the price had been paid.
Jail employees at almost all levels were involved, and everyone's share was
There was never a dispute; there has to be
the proverbial honour among thieves." This backdrop to the Tihar lifestyle
is disturbing enough. (Have other States their Tihars?) The writ jurisdiction
of this Court must be equal to the needs of human rights and human wrongs.
Relying upon legal literature in the American jurisdiction especially the
crystalised statement in American jurisprudence, this Court has laid down :
The writ is not and never has been a static,
narrow formalistic remedy. Its scope has grown to achieve its purpose-the
production of individuals against erosion of the right to be free from wrongful
restraints on their liberty.
Jural perspectives, thus set, make the Court
an activist instrument of Jail Justice. We proceed on this basis to a
consideration of the issues raised before us. But to clothe these issues with
flesh and blood and to make abstract poignancies into concrete problems, we may
excerpt at random some of the allegations made by the petitioner, perhaps, by
mixing fiction with fact. Even after making a liberal allowance for
adulteration and distortion, the miasmatic residue presses upon our judicial
conscience to use the court processes and restore basic humanism inside this
penal institution where sentences, punitively 939 sent by court, are subjects
to unbearable tensions and torments on their physical and moral fibre, thanks
to the prison milieu being what it is. The petitioner states that he had sent
to one of the Judges of this Court complaints about "atrociously
unwholesome". treatment in the jail, on September 21, 22 and 24, 1979. He
alleges that he had lodged a complaint against the Superintendent with the
vigilance Department of the Delhi State. His further version is better
projected by quoting a few paragraphs from his own petition:
That the Superintendent and Deputy
Superintendent, under a severe threat of dire consequences and infliction of
punitive torture, pressured the petitioner into signing an affidavit, denying
having lodged any such complaints in the Supreme Court, the Delhi
Administration and the Vigilance Department.
That, judging from the incidents of
corruption, torture and drug-distribution, there can be no two opinions about
the Superintendent and Deputy Superintendent, brought from the adjoining
province of Haryana, performing only in a manner of predators.
Torture and drug-distribution are merely the
means to corruption to achieve their ultimate end.
That there is a foreign convict confined in
the Tihar Jail, along with a woman, who he claims to be his wife. They are both
wanted by the Interpol. This man's criminal biography has been published in two
books, written by foreign authors, wherein the criminal exploits of this
criminal are admitted facts. He performs in the Tihar Jail as though he is the
virtual administrator thereof. He retains a portable tape recorder, strapped of
his calf, wherein he has filled incriminating evidence against the
Superintendent and the Deputy Superintendent. By virtue of this black- mailing
hold upon them he enjoys the following privileges:
(a) Free movements all over the jail compound
from his own place of confinement in Ward 2.
(b) At least a dozen visits are made by him
daily to the B class Ward 14. Here he holds periodic conferences to plan his
furtive strategy in company with three intimate associates-all co-accused in
the six-lacs Bank Van Robbery Case.
(c) The petitioner has himself seen the tape
recorder kept hidden by him and his B class criminal associates.
940 (d) This foreigner is especially
encouraged and protected by the Superintendent and Deputy Superintendent. He
can be seen visiting these officers and holding private conferences in the
private retiring rooms at the back of their offices almost daily.
(e) So much so, that the Deputy
Superintendent even allows this foreign-convict to consummate sexual
intercourse in his private back-room from time to time- the Deputy
Superintendent performing as though he were this foreign-convict's pimp.
(f) Naturally, for conceding such and many
more extra facilities, both the Superintendent and Deputy Superintendent charge
heavy amounts from his foreign convict, who has now struck rich after the
publication of his two books.
'B' Class status for prisoners is, going by
averments in the petition, a pampering process much abused by officials and, in
a 'class' culture, obnoxious to the Constitution. Equality before the law
cannot co-exist with affluent black-guards being looked after with luxury and
solicitude and lawly indigents being treated as pariahs inside the prison.
There is reference in the petition to the three dangerous criminals involved in
a big Bank Van Robbery Case being lodged in Ward 14 as 'B' Class VIPs, who
have, on top of other advantages, certain facilities like being.
"Specially allowed the privilege of
having two young and handsome habitual drug-addicts locked in his cell at
night, to serve him as passive agents for the appeasement of his homosexual
lust, (e) has been provided with a TV set in his cell exclusively for his and
his associates' entertainment, (f) smuggled-in alcohol is being regularly
consumed by the so-locked- together several prisoners in his cell, being rich,
it is these so-locked-together associates who finance the drug-and-alcohol
Another shocking allegation of corruption is
that even from sentences undergoing rigorous imprisonment money is collected by
high officials "for allotting hard labour (of soft types ?) in the course
of serving rigorous imprisonment and placing the convicts in the general
barracks or private cells." The petitioner further complains of having
been physically assaulted and the averments relating to it run thus:
941 That the agents appointed by the
Superintendent and Dy. Superintendent to sell narcotics in the Tihar Jail,
(written complaint to this effect lodged with the Superintendent, who passed
the matter on far enquiry to the Dy. Superintendent, who in turn took no
disciplinary action) physically assaulted the petitioner on December 25, 1979
and January 6 and February 7, 1980. However, no action has so far been taken
and the culprits, being the agents of the Superintendent and Dy. Superintendent
were skillfully shielded. In fact, the matter was deliberately suppressed
because of the involved personal financial interests of the officers.
Apart from these statements there are serious
charges of misappropriation, corruption, bribery and the like and the artful
stratagem adopted in that behalf. Shri Markandeya contended that there was
truth in the allegation that mandrex, charas and opium are freely available,
thereby trying to establish that the sub-culture in the Central Jail, far from
being reformatory is de-formatory of the morals of the prisoners. Indeed, many
more things are mentioned in support of the petition, including newspaper
reports, of the vices of the jail. But we are/not concerned in these
proceedings with a general enquiry into the jail affairs and, therefore,
confine ourselves to what has bearing on the ill-treatment of the petitioner.
It is basic fairness that we should not come
to any conclusion without remembering the fact that detailed counter-affidavits
have been filed on behalf of the Superintendent and the Dy. Superintendent with
supportive materials calculated to exonerate them. Even so it is fairly clear
that many vices, including drug rackets, occasional violence, smuggling and
trafficking in many other impermissible things, have a hospitable home in this
penitentiary. The Administration has conscientious responsibility for the
decency and dignity, for correctional obligations and social hygiene inside
prison houses and the time is long overdue for a thorough overhaul of the
prison management in Tihar. In an earlier judgment, late in 1979 (W.P. 1009 of
1979), the Supreme Court had, in the strongest terms, stressed the imperative
and urgent need for carrying out certain reforms and added the imprimatur of
the court's authority for certain directives contained in Sunil Batra's case.
Shri Markandeya complained that the injunctions of this Court have not been
carried out while a contrary version is given by the Superintendent. While we
express our consternation at the deterioration of the conditions in Tihar Jail
despite its being in the capital city of the country, we are disturbed that no
major measure of reform has yet taken place in the prison order or, 942 for
that matter, in the prison manual. Such indifference cannot deter the writ of
this court running into the prison and compelling compliance, however tough the
resistance, however high the officials.
Natural justice and the limitations of court
time persuade us to avoid a detailed investigation into the charges and the
defences, by us directly. We, therefore, adopt the alternative and more
feasible method of directing a judicial enquiry by the District & Sessions
Judge of Delhi who is a member of the Board of Visitors and whose
responsibilities in this behalf have been outlined by us in both the Sunil
The petition contains specific grievances of
physical assault and psychic torture, of tense atmosphere and delinquent
pressure for which some 'B' class prisoners and superior officers are
responsible. This matter has to be investigated. Furthermore, in the Sunil
Batra case (Supra), precisely to obviate the pernicious potential of prison
torture, remedial mechanics had been worked out, formulated and translated into
mandates. Whether these have been complied with, and if not, why not, require
to be enquired into. When this Court issues a writ recusant parties will have
to pay the penalty for noncompliance. This means, the violations and violators
will have to be identified after due investigation. Having regard to all these
instructions we make the following directions:
(1) The District and Sessions Judge, Delhi,
will, within three months from today, hold an open enquiry within the jail
premises, into the allegations contained in the petition of the prisoner
Kaushik and in the report submitted to this Court by Advocate, Shri Subodh
(2) He will further enquire, with specific
reference to the charges of personal assault and compulsion for collaboration
in canteen swindle and otherwise made by the prisoner against the
Superintendent and the Dy.
(3) He will go into the question of the
directives issued in the concluding portion of Sunil Batra's case (supra) with
a view to ascertain whether these directions have been substantially complied
with and to the extent there is shortfall or default whether there is any
reasonable explanation therefor.
(4) Being a Visitor of the jail, it is part
of his visitorial functions for the Sessions Judge to acquaint himself with the
condition of tension, vice and violence and prisoners' grievances. He will take
this opportunity to enquire into those aspects also with a view to suggest
943 The result of this investigation will be
crystalised in the shape of findings, followed by specific instructions with a
view to see that the petitioner and others like him are not burdened by
additional acerbities and harsher pressures than a legal sentence of rigorous
imprisonment geared to reformation and intended for deterrence necessarily
implied. The Sessions Judge will also give a specific time to the jail
authorities for carrying out his directives, and after the period for
compliance is over, will make a fresh visit to verify whether those mandates have
been fulfilled. In the event of non-fulfilment, a report will be made to this
Court before September 30, 1980 whereupon appropriate action to enforce
compliance will be taken by this Court in its jurisdiction.
We may make it perfectly clear that the Sessions
Judge will allow any person or official who wants to make any representations
to him in the course of his enquiry to meet him publicly or in camera, but
outsiders and strangers will not be allowed except Shri Subodh Markandeya or
Government's Counsel. Of course, it will be open to the Judge if he considers
that such a step will advance the interests of justice to allow any other
public organisation or legal aid society.
The sessions judge, whom we have charged with
the responsibility for enquiry, will make constructive suggestions to protect
prisoners' rights and to promote prisoners' habilitation and thus disprove
This two I know-and wise it were If each
could know the same- That every prison that men build is built with bricks of
shame, And bound with bars lest Christ should see How men their brothers main.
* * * * * The wilest deeds like poison weeds
Blowm well in prison air:
It is only what is good in Man' That wastes
and withers there.
(The Ballad of Reading Gaol) In this context,
the focus of the Sessions Judge should not be solely upon the warden and
warders of the jail, but also on the medical officers, whose connivance may,
perhaps, explain how drugs like mandraix are officially indented.
944 Our immediate concern is to protect the
petitioner and others of his ill-from physical assaults by fellow-prisoner or
warders, from moral stress by being forced to assist in falsification and
manipulation for canteen sales misappropriation, from discrimination in being
subjected to hard labour of a harsh type if he does not oblige the 'B' class
'bosses' or senior officer's, from pressure against transmitting grievances to
the Sessions Judge through the Grievance Box or directly to this Court by post.
But remedial perspectives and procedures, to be successful, must be holistic,
collective and not individualistic. So, the human canvas has to be spread
wider, the diagnosis has to be deeper and the recipe must senitize the environ.
The crisis in our prisons, the collapse of
values in these campuses, the inner tension 'red in tooth and claw', the
corruption that makes for sensual indulgences, the barbarities that harden the
convicts and never heal them-all these processes can be reviewed and
humanization resorted if only if, our philosophy towards crime and punishment
If vengeance is the spirit of punishment,
violence will be the prison way of life. That is why Karl Menninger in his
"The Crime of Punishment" exposes this folly:
.......Punishment is in part an attitude, a
It is the deliberate infliction of pain in
addition to or in lieu of penalty .....What is gained for anybody when a man
who has forged a check for sixty dollars is sentenced to the penitentiary for
thirty years.....The judge's rationalization was that the man had offended in
this way twice before (!) and had served shorter sentence without reforming:
.......This is not penalization. This is not
correction. This is not public protection. This is not reformation. It is
sadistic persecution of the helpless at public expense, justified by the
From this new angle, the hospital-setting
approach to prisons Gandhiji advocated, the therapeutic touch penologists argue
for and the raising of the level of consciousness, institutional and individual,
of officials and prisoners-all these woven into a composite strategy-may well
be the highway to higher awareness and socialisation of feeling inside
correctional homes. This technology takes us to method like transcendental
meditation, self-expression through work, facilities for studies and artistic
development. The warden's drill the warder's billy or the VIP's 'good chit'
cannot work magic.
Shri Markandeya's further report
substantiates the thesis we have set out that prison violence and escalating criminality
directly 945 flow from the anti-rehabilitative strategies and counter-
productive life-style prevalent in the Tihar. The VIP criminals in league with
other prison toughs are alleged to have organised the beating up of one
prisoner. The part of the prison officials may or may not be direct, but is
surely vicarious. Not until a transformation in the awareness of the top-brass,
not until new techniques of instilling dignity and mutual respect among the
prisoners, not until a hospital setting and curative techniques pervade the
staff and the inmates, can there be any human right conscious reformation in
the Tihar prison. All that we need say is that in the enquiry that we have
directed the Sessions Judge to hold this perspective will inform his interrogations
We have drawn the broad lines indicative of
the direction of correction and leave it at that. The fundamental fact of
prison reforms comes from our constitutional recognition that every prisoner is
a person and personhood holds the human potential which, if unfolded, makes a
robber a Valmiki and a sinner a saint.
S.R. Petition allowed.