Murthy Vs. State of Karnataka  INSC 1660 (23 December 1996)
Singh, B.L. Hansaria, S.B. Majmudar Hansaria J.
writ petition has its origin in a letter dated 12.4.1984 by a prisoner of
Central Jail, Bangalore (one Rama Murthy) to the Hon'ble Chief Justice of this
Court making grievance about some jail matters. The letter was ordered to be
treated as a writ petition and court proceedings followed which are being wound
up by delivering this judgment.
epistolatory power had been invoked earlier also in a similar matter when Sunil
Batra had written a letter to a Hon'ble Judge of this Court from Tihar Jail, Delhi. The judgments in his cases and
that of Charles Sobraj are such which can be said to be beacon lights insofar
as management of jails and rights of prisoners are concerned. This Court in
these judgments [(1) Charles Sobraj v. Superintendent Central Jail, Tihar, AIR
1978 SC 1514 (# 1979 (1) SCR 512): (2) Sunil Batra (1) v. Delhi Administration
and Ors., AIR 1978 SC 1675 (#1979 (1) SCR 392); and (3) Sunil Batra (II) v.
Delhi Administration, AIR 1980 SC 1579 (#1980 (2) SCR 557)], on being
approached either through formal writ petitions or by addressing letters, which
was treated as a writ petitions, had laid bare the constitutional dimension and
rights available to a person behind stone wails and iron bars.
These are not the only decisions on the question of rights of prisoners and
approach to be adopted while dealing with them as there are many other renderings
of this Court which deal with some other aspects of prison justice. A brief
resume of earlier decisions would be helpful to tread the path further. The
resume reveals this :-
State of Maharashtra v. Prabhakar, AIR 1966 SC 424 (#1966 (1) SCR 702) aid of
Article 21 was made available perhaps for the first time to a prisoner while
dealing with the question of his right of reading and writing books while in
Suresh Chandra vs. State of Gujarat, 1976
(1) SCC 654; and Krishan Lal v. State of Bihar 1976 (1) SCC 655 saw this court stating about penological innovation in
the shape of parole to check recividism because of which liberal use of the
same was recommended.
challenge was made to the segregation of prisoners in Bhuvan Mohan Pattnaik v.
State of Andhra Pradesh, AIR 1974 SC 2092 (#1975-2 SCR 24) and a three Judge
bench stated that resort to oppressive measures to cub political beliefs (the
prisoner was a Naxalite because of which he was put in a `guarantine' and
subjected to inhuman treatment) could not be permitted. The Court, however,
opined that a prisoner could not complain of installation of high-volt live
wire mechanism on the jail walls to prevent escape from prisons, as no prisoner
had fundamental right to escape from lawful custody.
Charles Sobraj it was stated that this Court would intervene even in prison
administration when constitutional rights or statutory prescriptions are
transgressed to the injury of a poisoner. In that case the complaint was
against incarceratary torture.
Sunil Batra (I) dealt with the question whether prisoners are entitled to all
constitutional rights, apart from fundamental rights. In that case this Court
was called upon to decide as to when solitary confinement could be imposed on a
prisoner. in Kishor Singh v. State of Rajasthan, AIR 1981 SC 2625 (#1981 (1) SCC 503) also the Court dealt with the
parameters of solitary confinement.
Shankar v. Delhi Administration, AIR 1980 SC 1535 (#1980 (3) SCR 855); and Kadra
Pahadiya v. State of Bihar, AIR 1981 SC 959 (#1981-3 SCC 671)
prohibited putting of undertrial prisoners in leg-irons.
Sunil Batra (II) the Court was called upon the deal with prison vices and the
judgment protected the prisoners from these vices with the shield of Article
21, Krishna Iyer. J. Stated that "prisons are built with the stones of
challenge was made to a prison rule which permitted only one interview in a
month with the members of the family or legal advisor in Francis Coralie v.
Union Territory of Delhi AIR 1981 SC 746(+1981 (8) SCR 516) and the rule was
held violative, inter alia, of Article 21.
series of cases, to wit, Veena Sethi v. State of Bihar, AIR 1983 SC 339 (=1982
(2) SCR 583); (ii) Sant Bir v. State of Bihar, AIR 1982 SC 1470 (= 1982 (3) SCC
(31); and (ii) Sheela Barse v. Union Territory, 1993 (4) SCC 204, this Court was
called upon the decide as to when an insane person can be detained in a prison.
In Sheela Barse it was held that jailing of non-criminal mentally Pradesh, AIR
1977 SC 1926 (=1978 (1) SCR 153), because in that case reformative aspect was emphasised
by stating that the State has to rehabilitate rather than avenge. Krishna Iyer,
J., speaking for a two-Judge bench, pointed out that the "sub-culture that
leads to anti-social behaviour has to be countered not by undue cruelty but by
On top of all, there is the undoubted right of speedy trial of undertrial
prisoners, as held in a catena of cases of this Court, reference to which is not
may only be made of the further leaves added to this right. These consist of
ordering for release on bail where trial is protracted. The first decision in
this regard is by a two-Judge bench in Supreme Court Legal Aid Committee
representing Undertrial Prisoners v. Union of India, 1994 (6) SCC 731, wherein
the bench was concerned with the dentention of large number of persons in jail
in connection with various offences under Narcotic Drugs and Psychotropic
Substances Act. 1985. The Court, after noting the stringent provisions relating
to bail as incorporated in that Act, directed for release of those undertrial
prisoners who were languishing in jail for a period exceeding half of the
punishment provided in the Act. This decision was cited with approval by
another two-Judge bench in Shaheen Welfare Association v. Union of ill persons is unconstitutional and directions
were given to stop confinement of such persons.
would be of some interest to point that in Sheela Barse, an order was passed to
acquaint the Chief Secretaries of every State with the decision and he was
directed to furnish some information to the Standing Counsel of his State. On
being found that State of Assam had not complied with the order, this Court
appointed Sr. Advocate Shri Gopal Subramanium as its Commissioner by its order
dated 13.5.1994 to have discussion with the Chief Secretary of that State and
to ensure immediate obedience of the orders passed in that case. Shri Subramanium's
voluminous report dated 15.9.1994 running into 532 pages tells a story too wet
for tears. All concerned were found ignorant of the decision in Sheela Barse
which was rendered in August, 1993; and what is more, a disturbing nexus
between the judiciary, the police and the administration came to light. This
was said to have led to a most shocking state of affairs negating the very
basis of the existence of human life.
hope that by now all the States of the Country must have acted as per the
directions in Sheela Barse.
The judicial work done by this Court on the subject at hand would not be
complete without mentioning what was held in Mohammad Giasuddin v. State of
Andhra India, 1996 (2) SSC 616 in which harsh provisions of TADA were horne in
mind and the bench felt that a pragmatic and just approach was required to be
adopted to release TADA detenues on bail because of delay in conclusions of
trails. The Bench classified these undertrials in four categories and passed
different orders relating to their release on bail.
comprehensive view was adopted in two later decisions - these being (1) RD Upadhyay
v. State of Andhra
Pradesh. 1996 (3) SCC
422; and (ii) "Common Cause" v. Union of India, 1996 (4) SCC 33. The
first of these cases dealt with undertrial prisoners lodged in Tihar jail and
directions were given to release them on bail depending upon the type of
offences alleged against them on the completion of period mentioned in the
judgment. The second case is more general inasmuch as it dealt with undertrial
prisoners lodged in various jails of the country. The bench directed for their
release on conditions laid down in the order. It was stated that directions
shall be valid in all the States in Union Territories and would apply not only to pending
cases but also to future cases. The directions were, however, not made
applicable to certain classes of cases mentioned in the order.
journey which commenced in 1966 has thus, during the last 30 years, planted
many milestones. But it seems there are vet promises to keep and miles to go
before one can sleep. And how can one sleep with wailinos of prisoners getting
louder and louder which requires a sentinal on the qui-vive, as this Court is
so far as fundamental rights are concerned, to take not of agony and to lay
down what is required to be done to make prisons match the expectations of
it be seen how to protect various rights of the prisoners and how the object of
rehabilitation of a prisoner does not remain will-of-the wisp. We have to be
pragmatic also. Constitutional rights of the prisoners shall have to be
interpreted in such a way that larger public interest does not suffer while
trying to be soft and considerate towards the prisoners. For this, it has to be
seen that more injury than is necessary is not caused to a prisoner. At the
same time efforts have to be made to reform him so that when he comes out of
prison he is a better citizen and not a hardened criminal.
Before proceeding to lay down the do's and dont's it would be useful to note
what is the general position of prisons in the country presently. To bring home
this, it would be enough to note what has been mentioned in the 1994- 95 Annual
Report of National Human Rights Commission in this regard at page 13 in para
4.17. The same is as below:- "The situation in the prisons visited was
varied and complex.
such as Tihar Jail in Delhi were over-crowded; yet others, like
that open jail in Hyderabad were under-utilized. Often, within
a single State, conditions varied from one jail to another in this respect,
pointing to the need for a more rational State-wide use of facilities. The
Commission saw a few jails which were notably clean and where the diet was
reasonable such as the Central Jail in Vellore. Unfortunately, it saw many others which are squalid, such as the newly
constructed Central Jail in Patna. In yet
others, the diet was inferior, and the management was denounced by the inmates
as brutal and corrupt. In some, care was being taken to separate juveniles from
others, petty offenders from hardened criminals.
others, no such care was being taken and the atmosphere appeared to nurture
violence and criminality. In a few, major efforts were being made to reform
conditions, to generate employment in a worthwhile and remunerative way, to
encourage education and restore dignity. In others, callousness prevailed,
prisoners were seen in shackles, mentally disturbed inmates - regardless of
whether they were criminal or otherwise- were incarcerated with others, with no
real effort being made to rise above the very minimum required for the meanest
prisoners worked, their remuneration was often a pittance, offering scant hope
of savings being generated for future rehabilitation in society. By and large,
the positive experiences were the exceptions rather than the rule, dependant
more upon the energy and commitmeent of individual officials rather than upon
the capacity of the system to function appropriately on its own." Facts
7. As alluded,
this petition has its origin in a letter from one Rama Murthy, a prisoner in
Central Jail, Bangalore, addressed to the Hon'ble Chief
Justice of this Court. In the letter the main grievance was about denial of
rightful wages to the prisoners despite doing hardwork by them in different
sections of the prison. Mention was also made about "non- eatable
food" and "mental and physical torture". On the matter being
taken up judicially, a need was felt, in view of the denial of the allegations
in the objection filed on behalf of the respondent, that the District Judge,
Bangalore, should visit the Central Jail and should find out the pattern of
payment of wages and also the general conditions of the prisoners such as
residence, sanitation, food, medicine etc. This order was passed on 26.11.1992
and the District Judge, after seeking time for submitting report from this
Court, did so on 28.4.1993. His report runs into more than 300 pages (alongwith
voluminous annexures), which shows the earnestness and pains which the District
Judge evinced and took in submitting the report.
would be enough for our purpose to note the various conclusions arrived at by
the District Judge, which have been incorporated in para 23 of the report
reading as below:
Therefore, on the basis of a through and proper enquiry by me in the Central
prison, Bangalore as directed by the Hon'ble Supreme Court, I have reached the
general condition of the prisoners is satisfactory. Their treatment by the Jail
Authorities is also satisfactory.
quality, quantity and timely supply of food to the prisoners are satisfactory.
pattern of payment of wages is as per Annexure -F and it is being followed
properly. The wages are correctly recorded and paid to the prisoners as per
residence (the accommodation) to the prisoners in the jail are adequate and
satisfactory. But the maintenance of buildings by the P.W.D. authorities is
hopelessly bad for want of funds from the Government according to them.
sanitation is not satisfactory due to accute scarcity of water. The jail premises
is normally maintained clean and tidy with great efforts. But it is improving
since about a month after opening 3 or 4 borewells.
medical facilities in the Jail Hospital and supply of medicines to the
prisoners are satisfactory. Due to overt population in the jail the two Doctors
and their staff at present in the jail Hospital are unable to cope up with the
demands but still there is no slackness or negligence in their work. for want
of Lady Doctor and women staff in the hospital the Medical attendance to women
prisoners is not proper or satisfactory.
Visit of prisoners to their homes or their places is not prompt or regular as
per rules due to want of Police Escorts. This has caused lot of dissatisfaction
and depression among the prisoners.
production of prisoners in Courts on the dates of hearing in their cases is not
regular or prompt due to want of Police Escorts and vehicles. This has affected
the expeditious disposal of custody cases in Courts. The prisoners are very
much agitated over this.
production of prisoners in the Hospitals outside the jail for examination or
treatment by the experts is not prompt or regular due to want of Police
Mental patients in the jail and the prisoners with serious diseases requiring
treatment outside the jail are compelled to remain in jail for want of
accommodation in such hospitals.
The place and procedure followed for interviews between the prisoners their
kith and kin, friends and visitors is not satisfactory.
Canteen facilities should improve. The sale of articles in the Canteen at the
price above market prices to make profit is causing great hardship to the
view of the above conclusions, the District Judge made certain recommendations
which are contained in para 24 of the report reading as below:
In view of the above conclusions the following recommendation are made for
consideration and implementation:
P.W.D. Authorities in charge of the maintenance of the buildings and the
premises of the jail are to be directed to maintain the buildings properly as
per the requirement in the jail by getting necessary funds from the Government
on priority basis. Necessary instructions may be issued to the Government in
this regard to provide funds and to accord permission.
Sanitation in the jail premises requires lot of improvement. P.W.D. Authorities
are to be directed to repair the existing pipe lines and the sewerage lines in
addition to providing Electric pumps to the bore-wells in the jail premises.
staff in the jail hospital has to be increased by providing at least 2 more
Doctors preferably who have specialised in the particular field where the
prisoners may require their services in special cases. One Lade Medical
Officer, a Lady Nurse and two lady attendants for the purpose of attending the
women prisoners. The location of their office may be provided in the separate
block meant for women prisoners. If regular posting of Doctors cannot be made
for the purposes stated above, the services of the Doctors from other
Government Hospitals in Bangalore may be secured as a routine periodically or
in case of emergencies by providing them some conveyance. It is suggested that
doctors incharged of the Hospital may visit each barrack at least once in a
week and meet the inmates to know their health problems and to treat them in
jail Hospital. In case of emergency as agreed by them, they may visit the
prisoners whenever their services are required.
Jail Authorities may be directed to arrange for the regular visit of the
prisoners to their homes or their places periodically as per the rules without
insisting any deposit or security or police report unless it is inevitable and
in case of emergency like death, serious illness and other important festivals,
functions arrangements should be made for their visit relaxing all the required
formalities. By way of follow up action, the Jail Authorities may be instructed
to submit the report of the returns to the prl. City Civil & Sessions
Judge, Bangalore once in a month in this regard in addition to special reports
as and then it is necessary or as per the directions of the prl. City Civil and
Session Judge, Bangalore. For this purpose the Home Department
has to be requested to spare sufficient number of police Escorts and the
vehicles as and when it is required by the Jail Authorities.
possible as suggested by the Superintendent of Jail, some fixed number of
escorts may be permanently posted to work in the jail to assist the Jail
Authorities in cases of visits due to emergencies.
Superintendent of the jail may be instructed to produce the UTPs before the
Courts in which their cases are pending on the dates of hearing fixed by the
Courts regularly and promptly. For this purpose, the Home Department of the
Government may be requested to spare sufficient number of police Escorts and
the vehicles as and when it is required by the Jail Authorities. The
Superintendent of the Jail has to be instructed to submit a report in this
regard at least once in a month to the prl. City Civil & Sessions Judge, Bangalore compliance of such instructions.
Superintendent of the jail should take all the steps to produce the prisoners
to the Hospitals outside the jail for the purpose of examination and treatment
whenever necessary as per the opinion of the Jail Doctors and for this purpose
also, the same procedure may be followed regarding police Escort as stated
the hospitals under the control of the Government who are expected to treat the
prisoners either in the normal cases or in special cases may be strictly
instructed to treat the prisoners either as in-patients or otherwise as per the
recommendation of the jail Doctors and the Superintendent of the Jail without
referring them back to the jail for treatment, particularly in case of mental
patients, the NIMHANS authorities may be requested to treat them as in-patients
till they become normal without referring them back to the jail.
is absolutely necessary to provide proper accommodation with sufficient space
of the interviews between the prisoners with their kith and kin, friends and
procedure which is being followed at present also required to be modified as
suggested in the discussions stated above in para- 20. If possible separate
portions may be made in the accommodation for the purpose of interviews. The
Superintendent of the jail may be instructed to submit the report in this
regard at least once in 3 months to the prl. City Civil & Sessions Judge,
Bangalore who may review the same issue instructions as and when it is
Canteen facilities in the jail require improvements. Some more articles for day
to day use of the inmates may be sold in the Canteen.
Superintendent of the Jail may in consultation of the prisoners submit a report
in this regard to the prl. City Civil & Sessions Judge, Bangalore
mentioning the articles which may be sold in the Canteen. The Jail Authorities
should be strictly instructed not to sell any of the articles to the prisoners
at a rate more than the market price or for profit. For this purpose, they may
adopt any procedure whereby the articles can be held on the Principle `no loss
no profit' basis.
may be necessary to instruct follow up action by all the concerned Authorities
in regard to the implementation of the items stated above."
wish to place on record our appreciation for the admirable work done by the
Being concerned with a problem which is not confined to the happenings in
Central Jail, Bangalore, but which are faced more of less by all the persons
confined in 1155 prisons of different kinds in India, we have thought it fit
not to confine our attention and concern to what was found in the Central Jail
by the District Judge. According to us, it would be more apposite to keep in
view all the prisoners, whose population at the end of 1993 was 1,93,240, of
whom 1,37,838 were unconvicted remandees or undertrials.
may be pointed that the National Human Rights Commission is also of the view
that the prison system as such is in need of reform, nation-wide. (See para
4.18 of these aforesaid Report).
The literature on prison justice and prison reform shows that there are nine
major problems which afflict the system and which need immediate attention.
These are :
in trial ;
and ill- treatment;
neglect of health and hygiene;
food and inadequate clothing ;
o jail visits; and
of open air prisons.
propose to take each of the problems separately and express our view as to what
could reasonably be done and should be done to take care of the same.
That our jails are overcrowded is a known fact. To illustrate, in Tihar Jail as
against the housing capacity of 2,500 persons in 1994-95, there were 8,500
prisoners, as mentioned in Chapter 16 of `1 Dare', a biographical work on Ms. Kiran
Bedi. Of course, the percentage of over-crowding varies from prison to prison.
Though the aforesaid fact is known, what is not known is the controversy as to
whether overcrowding itself violates any constitutional right. This question
arises because overcrowding contributes to a greater risk of disease, higher
noise levels, surveillance difficulties, which increases the danger level. This
apart, life is more difficult for inmates and work more onerous for staff when
prisoners are in over capacity.
Though we have no decision of ours yet on the subject, the American Supreme
Court in two major decisions had addressed itself on overcrowding problem.
First of these is Wolff v. Mc Donnel, 418 US 539 (1974), involving pretrial
detainees. The Court held that the principle of `one man, one cell', cannot be
read in the Due Process Clause of the Fifth Amendment. It was further held that
the practice of placing two detainees in a cell meant for one person was not
unconstitutional. Of course, this view was taken because of the facts of that
case where it was found that the detainees in the federal Metropolitan
Correctional Centre were not required to spend much time in their cells - only
7 or 8 hours per day. Further more, they were not exposed to the overcrowding
for very long as average stay was 60 days. The second decision was in Rhodes v.
Chapman, 452 US 337(1981).
Court there was concerned with a convicted prisoner and examined the question
whether overcrowding constituted cruel and unusual punishment. It did not read
any violation of the Eighth Amendment as there was no evidence that double- celling
had inflicted "unnecessary or wanton pain or was grossly disproportionate
to the severity of the crimes warranting imprisonment" (See, `American
Prison System' by Richard Hawkins ad Geoffery, p.420 of 1989 edition). The
Court went on to conclude that "the Constitution does not mandate
comfortable prison".* * Chapter 8 (Prisons : Cruel and Unusual Punishment
Controversy) of `Hard Judicial Decisions" by Phillip J.
contains a criticism of these judgments.
Mention has been made of the aforesaid two decisions despite there being no
exact parallel to the Due Process Clause of the Fifth Amendment of American
Constitution or of guarantee against cruel and unusual punishments mentioned in
their Eighth Amendment, in our Constitution, but Article 21 of our paramount
parchment also does prohibit cruel punishments, which would be apparent from
the decision of a three-Judge Bench on Deena vs. Union of India, AIR 1983 SC
1155 (= 1984 (1) SCR 1), in which execution of death sentence by hanging was
challenged on the ground of being cruel and barbarous.
Even if overcrowding be not constitutionally impermissible, there is no doubt
that the same does affect the health of prisoners for the reason noted above.
The same also very adversely affects hygienic condition. It is, therefore, to
be taken care of.
The recent decision of this Court requiring release on bail of certain
categories of undertrial prisoners, who constitute the bulk of prison
population, has to result in lessening the over capacity. It would he useful to
refer here to the Seventy-Eighth Report of the Law commission of Indian on
`Congestion of Undertrial Prisoners in Jails'. The Commission has in Chapter 9
of the Report made some recommendations acceptance of which would relieve
congestion in jails. These suggestions include liberalisation of conditions of
release on bail. It may be pointed out that it has already been held by this Court
in Babu Singh vs. State of U.P., AIR 1978 SC 527 (# 1978 (2) SR 777); and Gurbaksh
Singh Sibbia vs. State of Punjab, AIR 1980 SC 1632 (#1980 (3) SCR 383) that
imposing of unjust or harsh conditions, while granting bail, are violative of
require the concerned authorities to take appropriate decision on the
recommendations of the Law Commission within six months from today.
Overcrowding may also be taken care of by taking recourse to alternatives to
incarceration. These being: (1) fine; (2) civil commitment; and (3) probation.
There is an enlightened discussion on these judicial choices in Chapter IV of
"Justices, Punishment, Treatment" by Leonard Orland.
that chapter (of 1983 edition) the learned author has referred to many cases on
this subject and has pointed out the difference between "civil" and
"penal" institutions from the perspective of the inmate. As to
release on probation, it may be stated that it really results in suspension of
required to execute bond under the provisions of the Probation of Offenders
Act, 1958, requiring maintenance of good conduct during the probationary
period, the failure to do which finds the concerned person in prison again.
That Act has provision of varying conditions of probation and has also set down
the procedure to be followed in case of the offenders failing to observe
Overcrowding is reduced by releases on parole as well, which is a conditional
release of an individual from prison after he has served part of the sentence
imposed upon him.
aspects of parole have been dealt in Chapter 11 of Professor Orland's aforesaid
book. In Suresh Chandra and krishan Lal (supra) liberal use of parole was
recommended by this Court.
Reference may also be made in this connection to Chapter 20 of the Report of
All India Committee on Jail Reforms (headed by Justice A.N. Mulla) (1980-83) Vol.I.
That chapter deals with the system of remission, leave and premature release.
The Committee has mentioned about various types of remission and has made some
recommendations to streamline the remission system. As to premature release,
which is the effect of parole, the Committee has stated that this is an
accepted mode of incentive to a prisoner, as it saves him from the extra period
of incarceration; it also helps in reformation and rehabilitation. The
Committee has made certain suggestions n this regard too. We direct the
concerned authorities to take appropriate decision on the suggestions within a
period of six months from today. It may be pointed out that there is really a
grievance about allowing the recommendations to remain in cold storage. (See
article of T. Ananthachari "Human Rights Behind Prison Walls"
published at pp. 35-47 of the 1995 report by Commonwealth Human Rights Initiative
(a NGO) titled `Behind Prison Walls - Police, Prisons and Human Rights'). While
taking appropriate decision, the authorities may apprise themselves of what has
been in Chapter 6 (headed `Parole') of the British White Paper on `Crime,
Justice and Protecting the Public' (1990).
There is yet another baneful effect of overcrowding.
same is that it does not permit segregation among convicts - Those punished for
serious offences and for minor. The result may be that hardened criminals
spread their influence over others. Then, juvenile offenders kept in jails
(because of inadequacy of alternative places where they are required to be
confined) get mixed up with others and they are likely to get spoiled further.
So, problem of overcrowding is required to be tackled in right earnest for a
is apparent that delay in trial finds an undertrial prisoner (UTP) in jail for
a longer period while awaiting the decision of the case. In the present
proceeding, we are really not concerned regarding the causes of delay and how
to remedy this problem. Much has been said in this regard elsewhere and we do
not propose to burden this judgment with this aspect. We would rather confine
ourselves as to how to take care of the hardship which is caused to a UTP
because of the delay in disposal of this case. The recent judgments of this
Court (noted above) requiring release of UTP on bail where the trial gets
protracted would hopefully take care to a great extent the hardship caused in
this regard. We desire to see full implementation of the directions given in
the aforesaid cases.
Another aspect to which we propose to advert is the grievance very often made
about non-production of UTPs in courts on remand dates. The District Judge in
his report has also found this as a fact. The reason generally advanced for
such non-production is want of police escorts. It has to be remembered that
production before the court on remand dates is a statutory obligation and the
same has a meaning also inasmuch as that the production gives an opportunity to
the prisoner to bring to the notice of the Court, who had ordered for his
custody, if he has faced any ill-treatment or difficulty during the period of
remand. It is for this reason that actual production of the prisoner is
required to be insured by the trial court before ordering for further remand,
as pointed out in a number of decisions by this Court.
are also conscious of the fact that police force in the country is rather
over-worked. It has manifold duties to perform. In such a situation it is a
matter for consideration whether the duty of producing UTP on remand dates
should not be entrusted to the prison staff. To enable the prison staff to do
so, it would, however, need escorts vehicles.
would require the concerned authorities to take appropriate decision in this
regard within a period of six months from today.
There are horror stories in this regard. The cellular jail on Port Blair
resounds with the cries of the prisoners who were subject to various forms of
torture. This is now being brought home in the Light and Sound programme being organised
in that jail, which after Independence has been declared as a national
monument. Other jails would also tell similar stories.
Apart from torture, various other physical ill- treatment like putting of
fetters, iron bars are generally taken recourse to in jails. Some of these are
under the colour of provisions in Jail Manuals. The permissible limits of these
methods has been spelt out well in many earlier decisions of this Court to
which reference has been already made. We do not propose to repeat.
What we would rather state is that if what is being done to prisoners in the
above regard is to enforce prison discipline mentioned in various Jail Manuals,
there exists a strong need for a new All India Jail Manual to serve as a model
for the country, which Manual would take note of what has been said about
various punishments by this Court in its aforesaid decisions. Not only this,
the century old Indian Prison Act, 1894, needs a through look and is required
to be replaced by a new enactment which would take care of the thinking of the
Independent India and of our constitutional morose and mandate. The National Human
Rights commission has also felt that need for such exercise, mention about
which has been made in para 4.18 and 4.21 of the aforesaid Report.
reading of the Chapter IX on `Prison Discipline' in RN Datir's book on `Prison
as a Social System', shows that in some Jail Manuals even flogging/whipping has
been retained as a punishment, which would not be permissible in view of the
right enshrined in Article 21 of the Constitution. We have mentioned about this
only to highlight the need for a new model All India Jail Manual.
would be apposite in this context to refer to the recent decision of the United
States Supreme Court in Hudson v. Mc Millian, 403 US 1, in which that Court was
required to decide whether the use of excessive physical force against a
prisoner may constitute cruel and unusual punishment even when the inmate does
not suffer serious injury. This question was answered in affirmative by
majority of 7 : 2.
already mentioned. Article 21 of our Constitution also does not permit cruel
May we say that the ideal prison and the advance prison system which the enlighted
segment of the society visualise would not permit torture and ill-treatment of
prisoners. Of course, if for violating prison discipline some punishment is
required to be given, that would be a different matter.
of health and hygiene
The Mulla Committee has dealt with this aspect in Chapter 6 and 7 of its
Report, a perusal of which shows the pathetic position in which most of the
jails are placed insofar as hygienic conditions are concerned. Most of them
also lack proper facilities for treatment of prisoners. The recommendations of
the Committee in this regard are to be found in Chapter 29. We have nothing
useful to add except pointing out that society has an obligation towards
prisoners' health for two reasons. First, the prisoners do not enjoy the access
to medical expertise that free citizens have. Their incarceration places
limitations on such access;
physician of choice, no second opinions, and few if any specialists. Secondly,
because of the conditions of their incarceration, inmates are exposed to more
health hazards than free citizens. Prisoners therefore, suffer from a double
`American Prison System' (supra) there is a discussion at pages 411-13 as to
whether a prisoner can seek any relief from the Court because of neglect of
medical treatment on the ground of violation of their constitutional right.
Policy makers may bear this also in mind while deciding about the
recommendations of the Mulla Committee Report, which they would so do within
six months from today.
food and inadequate clothing
There is not much to doubt that the rules contained in concerned Jail Manual
dealing with food and clothing etc. to be given to prisoners are not fully
complied with always.
that can usefully he said on this aspect is the persons who are entitled to
inspect jails should do so after giving shortest notice so that the reality
becomes known on inspection. The system of complaint box introduced in Tihar
Jail during some period needs to be adopted in other jails also. The complaint
received must be fairly inquired and appropriate actions against the delinquent
must be taken. On top of all, prisoners must receive full assurance that
whoever would lodge a complaint would not suffer any evil consequence for
lodging the same.
this aspect nothing more is required to be said than what was pointed out in
Sunil Batra (II). It may only be stated that some vices may be taken care of if
what is being stated later on the subject of jail visits is given concrete
shape. We have said so because many of the vices are related to sexual urge,
which remains unsatisfied because of snapping of marital life of the prisoner.
If something could be done to keep the thread of family life unbroken some
vices many take care of themselves, as sexual frustration may become tolerable.
The aforesaid seems to us a more rational way to deal with prison vices rather
than awarding hard punishment to them. We may not be, however, understood to
say that the jail authorities need not take action against the prisoners
indulging in vices; but in the situation in which they are placed, a
sympathetic approach is also required.
While in jail, communication with outside world gets snapped with a result that
the inmate does not know what is happening even to his near and dear ones. This
causes additional trauma. A liberalised view relating to communication with
kith and kin specially is desirable. It is hoped that the model All India Jail
Manual, about the need of which we have already adverted, would make necessary
provision in this regard. It may be pointed out that though there may be some
rationale for restricting visits, to which aspect we shell presently address,
but insofar as communication by post is concerned, there does not seem be any
plausible reason to deny easy facility to an inmate.
of jail visits
Prison visits fall into three categories: (1) relatives and friends; (2)
professionals; and (3) lay persons. In the first category comes the spouse.
Visit by him/her has special significance because a research undertaken on
Indian prisoners sometime back showed that majority of them were in the age
group of 18 to 34, which shows that most of them were young and were perhaps
having a married life before their imprisonment. For such persons, denial of
conjugal life during the entire period of incarceration creates emotional problems
also. Visits by a spouse is, therefore, of great importance.
is, of course, correct that at times visit may become a difficult task for the
visitors. This would be so where prisoners are geographically isolated. This
apart, in many jails facilities available to the visitors are degrading. At
many places even privacy is not maintained. If the offenders and visitors are
screened, the same emphasises their separation rather than retaining common
bonds and interests. There is then urgent need to streamline these visits.
Dr. Mir Mehraj-ud-din in his book `Crime and Criminal Justice System in India' has dealt with different aspects
of prison visits in Chapter VI headed `Resocialization : Search for Goals'. The
learned author has said that frequent jail visits by family members go a long
way in acceptance of the prisoner by his family and small friendly group after
his release from jail finally, as the visits continue the personal relationship
during the term of imprisonment, which brings about a psychological communion
between him and other members of the family.
to visits by professionals, i.e. the lawyer, the same has to be guaranteed to
the required extent. If the prisoner be a pre-trial detainee, in view of the
right conferred by Article 22(1) of the Constitution.
of open air prisons
Open air prisons play an important role in the scheme of reformation of a
prisoner which has to be one of the desideratum of prison management. They
represent one of the most successful applications of the principle of
individualization of penalties with a view to social readjustment as stated by
B. Chandra in the Preface to his book titled "Open Air Prisons". It
has been said so because release of offenders on probation, home leave to
prisoners, introduction of wage system, release on parole, educational, moral
and vocational training of prisoners are some of the features of the open air
prison (camp) system. Chandra has stated in the concluding portion of Chapter 3
at page 150 (of 1984 edition) that in terms of finances, open institution is
far less costly than a closed establishment and the scheme has further
advantage that the Government is able to employ in work, for the benefit of the
public at large, the jail population which would have otherwise remained
unproductive. According to the author, the monetary returns are positive, and
once put into operation, the camps pay for itself.
Reference may also be made to what has been stated in Chapter 5 about the
change in the human and social outlook, which activities and programmes of
these camps bring about.
whole thrust is to see that after release the prisoners may not relapse into
crimes, for which purpose they are given incentives to live normal life, as
they are trained in the fields of agriculture, horticulture etc. Games, sports
and other recreational facilities, which form part of the routine life at the
open air camps, inculcate in the prisoners a sense of discipline and social
prayers made regularly provide spiritual straight.
While on the subject of prayer, mention may be made about the experiment
carried out even in the closed Tihar Jail sometime in 1993-94, when Vipassana
meditation was introduced in a big way, which according to Tarsem Kumar, one of
the Jail Superintendents of the Jail, brought about a radical change in the
living and thinking of the prisoners, as narrated in his book titled
"Freedom Behind Bars".
Open air prison, however, create their own problem which are basically of
management. We are, however, sure that these problems are not such which cannot
be sorted out.
the greater good of the society, which consists in seeing that the inmates of a
jail come out, not as a hardened criminal but as a reformed person, no
managerial problem is insurmountable. So, let more and more open air prisons be
opened. To start with, this may be done at all the District Headquarters of the
have travelled a long path. before we end our journey, it would be useful to
recapitulate the directions we have given on the way t various authorities.
take appropriate decision on the recommendations of the Law Commission of India
made in its 78th Report on the subject of `Congestion of undertrial prisoners
in jail' as contained in Chapter 9. (Para
apply mind to the suggestions of the Mulla Committee as contained in Chapter 20
of Volume I of its Report relating to streamlining the remission system and
premature release (parole), and then to do the needful. (Para 23).
consider the question of entrusting the duty of producing UTPs on remand dates
to the prison staff. (Para P7).
deliberate about enacting of new Prison Act to replace century old Indian
Prison At, 1894. (Para 31). We understand that the
National Human Rights Commission has prepared on outline of an All-India
statute, which may replace the old act; and some discussions at a national
level conference also took place in 1995. we are of the view that all the
States must try to amend their own enactments, if any, in harmony with the all India thinking in this regard.
examine the question of framing of a model new All India Jail Manual as indicated in para
reflect on the recommendations of Mulla Committee made in Chapter 29 on the
subject of giving proper medical facilities and maintaining appropriate
hygienic conditions and to take needed steps. (Paras 35 and 36).
ponder about the need of complaint box in all the jails. (Para 37).
think about introduction of liberalisation of communication facilities. (Para 40).
take needful steps for streamlining of jail visits as indicated in para 42.
To ruminate on the question of introduction of open air prisons at least in the
District Headquarters of the country. (Para
The end of the journey is in sight. We conclude by saving that the cognizance
of the letter written by Rama Murthy and the efforts made thereafter to find
out what was realty happening in the Central Jail of Bangalore, resulting in
submission of a voluminous report by District Judge, would not prove to be an
exercise in futility, if what we have stated above is taken in all seriousness
and our prisons become reform houses as well, in which case the social and
economic costs of incarceration would become more worth while. There seems to
be no cause for disillusionment, despite what has been stated in this regard by
Roy D. King and Rod Morgan in `The Future of Prison System'. According to us,
talk about treatment and training in prisons is not rhetoric; it can prove to
be real, given the zeal and determination. And we cannot afford to fail in this
sphere as a sound prison system is a crying need of our time in the backdrop of
great increase in the numbers of prisoners and that too of various types and
from different strata of society.
Let us, therefore, resolve to improve our prison system by introducing new
techniques of management and by educating the prison staff with our
constitutional obligations towards prisoners. Rest would follow, as day follows
the night. Let the dawning ray (of hope) see the end of gloom cast on the faces
of majority of prisoners and let a new awakening percolate every prison wall.
Let it be remembered that "where there is will, there is way". Will
there is, way would be found.
had desired to dispose of the writ petition accordingly. But as we could not
hear all the States, because of constraint of time and as they have to be heard
before giving directions as detailed above, let notices be issued on the
Secretary to the Government of India, Ministry of Home and the Chief
Secretaries of all the States and Union Territories, as to why they should not
be asked to act for above. Let causes be shown within three months and let the
case be planed for further hearing thereafter soon.