D. Bhuvan Mohan Patnaik & Ors Vs.
State of Andhra Pradesh & Ors  INSC 171 (9 September 1974)
KHANNA, HANS RAJ GOSWAMI, P.K.
CITATION: 1974 AIR 2092 1975 SCR (2) 24 1975
SCC (3) 185
CITATOR INFO :
E&R 1978 SC1675 (57,197,212,226) F 1980
SC1579 (42) RF 1981 SC 746 (4) R 1983 SC 361 ((2)16,17) RF 1983 SC 465
(5,16,17) RF 1985 SC 231 (2,3)
Constitution of India, Articles 32, 21 and
1894-Whether prisoner has fundamental
right-Validity of live wire mechanism atop jail wall-Posting Police out-side
The petitioners are under-going sentences in
the Central Jail at Vizagapatnam. The petitioners have filed the present writ
petitions for the reliefs that the armed Police Guards posted around the Jail
should be removed and that live wire electrical mechanism fixed on top of jail
wall should be dismantled. It was contended by the petitioners that (1) under
section 3(1) of the Prisons Act, 1894 prison includes all lands and buildings
appurtenant thereto. The policemen occupied huts appurtenant to jail and,
therefore, occupied a part of the prison, which is calculated to cause
substantial interference with the fundamental rights of the petitioners. (2)
Naxalite prisoners were segregated and inhuman treatment was meted out to them
as if they were inmates of a fascist concentration camp. (3) The live wire
mechanism fixed atop the jail walls is unconstitutional because a prisoner
attempting to escape is by the use of the device virtually subjected to a death
penalty. Under the Penal Code a prisoner who escapes or attempts to escape is
liable to a maximum sentence of 2 years and a fine. The live wire gadget lacks
the authority of law and is in flagrant violation of the personal liberty
guaranteed by Article 21 of the Constitution.
It was contended by the respondent that (1)
the usual watch and ward staff of the Jail having been found to be inadequate,
services of the Andhra Pradesh Special Police force had to be requisitioned to
guard the jail from outside. (2) The prisoners were not subjected to inhuman
treatment and were on the other hand afforded all the facilities necessary for
a decent and reasonably comfortable existence. (3) The live wire installed atop
the wall is 14 ft. from ground level, height of the wall itself being 13 ft. It
rests on enameled non-conductors. The wire has no direct contact with the wall
and there is no possibility of the electrical current leaking through the wall.
The prison walls themselves are situated at a distance of about 20 ft.
from the cells where the petitioners are
lodged. An electrician inspects the system regularly. The mechanism is not a
secret trap as all prisoners are warned of its existence.
Dismissing the petition.
HELD : (i) Convicts are not by mere reason of
the conviction, denuded of all the fundamental rights which they otherwise
possess. A prisoner is deprived of fundamental rights like the right to move
freely throughout the territory of India or the right to practice a profession.
But other freedoms like the right to acquire,
hold or dispose of property are available to the prisoner. He is also entitled
to the right guaranteed by Art. 21 that he shall not be deprived of his life or
the personal liberty except according to the procedure established bylaw
Therefore. under our Constitution the right of personal liberty and some of the
other fundamental freedoms are not to be totally denied to a convict during the
period of incarceration. [26D-F; 27B] (II) The petitioners are not denied any
of their fundamental rights by posting of Police Guards immediately outside the
jail. As many as 156 Naxalite Prisoners were lodged in the Vizagapatnam jail,
as a result of which the usual watch and ward arrangement proved inadequate. 11
Naxalite prisoners including 2 out of the 3 petitioners escaped from the prison
in 1969. It was decided thereafter to take adequate measures for preventing the
scope of prisoners from jail.
The Policemen have no access to the jail
which is enclosed by high walls. Their presence in the immediate vicinity of
the jail can cause no interference with the personal liberty or the lawful
preoccupations of the prisoners. [27B-D, G] 25 (iii) The court is not satisfied
about the truth of the allegations of inhuman treatment though the court does
not accept the rosy picture drawn by the Jail Authorities. There are subtle
forms of punishment to which convicts and under trial prisoners are sometimes
subjected but it must be realize that these barbarous relics of a bygone era
offend against the letter and spirit of our Constitution. [28B & G] (iv)The
live wire mechanism has no support of law. It is based on mere administrative
instructions. Therefore. if it violates the fundamental rights it cannot be
justified on the ground of its being reasonable. If action of the WI
authorities violates the fundamental rights of the petitioner the justification
of the measure must be sought in some law within the meaning of Article 13 (3)
(a) of the Constitution. There is no possibility that the petitioners will come
into contact with the electrical device in the normal pursuit of their daily
chores. There is also no possibility that any other person in discharge of his
lawful functions will come into contact with the same. The prisoners have no
fundamental freedom to escape from lawful custody. Therefore, they cannot
complain of the installation of the live wire with which they are likely to
come into contact only if they try to escape from the prison. [29E; H; 30 AB]
ORIGINAL JURISDICTION: Writ Petitions Nos.
295-297 of 1974.
Under article 32 of the Constitution of
R. K. Garg, for the petitioners.
P. Ram Reddy and P. Parmeshwararao, for the
The Judgment of the Court was delivered by
CHANDRACHUD, J. This is a group of three writ petitions under article 32 of the
D.Bhuvan Mohan Patnaik, the petitioner in
Writ Petition No. 295 of 1974 is undergoing the sentences of 4 1/2 years and 5
1/2 year& awarded to him in two sessions cases. He is also an under trial
prisoner in what is known as the Parvatipuram Naxalite Conspiracy case.
Nagabhushan Patnaik, who is the petitioner in Writ Petition No. 296 of 1974 was
sentenced to death by the learned 11 Additional Sessions Judge, Visakhapatnam,
but that sentence was commuted by the State Government to life imprisonment. P.
Hussainar, the petitioner in Writ Petition No. 297 of 1974, is undergoing the
sentence of imprisonment for life imposed by the same learned Judge. He is also
an under-trial prisoner in the Parvatipuram Case. The three petitioners are
undergoing the sentences in the Central Jail at Visakhapatnam.
We are not concerned with any evaluation of
the political beliefs of the petitioners who claim to be Naxalities nor with
the legality of the sentences imposed on them nor indeed with the charges on
which two of them are being tried. The only reliefs which they ask for are :
(1)that the armed police guards posted around the jail should be removed and
(2) that the livewire electrical mechanism fixed on top of the jail wall should
Mr. Garg who appears on behalf of the
petitioners contends that even the discipline of the prison must have the
authority of law and that there should be a sort of "Iron curtain' between
the prisoners and 26 the police so that convicts and under-trial prisoners may
be truly free from the influence and tyranny of the police.
Section 3(1) of the Prisons Act, 9 of 1894,
defines 'prison' to mean any jail or place used permanently or temporarily for
the detention of prisoners, including "all lands and buildings appurtenant
thereto". The Superintendent of the Central Jail, Visakhapatnam, who is
the 3rd respondent to the petitions, has filed an affidavit stating that the
usual watch and ward staff of the jail having been found to be inadequate, the
services of the Andhra Pradesh Special Police Force had to be requisitioned to
guard the, jail from outside. The affidavit shows that these policemen live in
huts built on a part of the vacant jail land and that the officers of the Force
are, accommodated in the. "jail Club" immediately outside the jail.
Their office is situated in a block outside the jail, which was meant to be
used as a waiting room for visitors wishing to meet the prisoners.
The argument of Mr. Garg is that since prison
includes lands appurtenant thereto, the members and officers of the Andhra
Pradesh Special Police Force must, on the affidavit of the third respondent, be
held to occupy a part of the prison and that must be prevented as it is
calculated to cause substantial interference with the exercise by the prisoners
of their fundamental rights.
Convicts are not, by mere reason of the
conviction, denuded of all the fundamental rights which they otherwise possess.
A compulsion under the authority of law,
following upon a conviction, to live in a prison-house entails to by its own
force the deprivation of fundamental freedoms like the right to move freely
throughout the territory of India or the right to "practice" a
profession. A man of profession would thus stand stripped of his right to hold
consultations while serving out his sentence. But the Constitution guarantees
other freedoms like the right to acquire, hold and dispose of property for the
exercise of which incarceration can be no impediment. Likewise, even a convict
is entitled to the precious right guaranteed by Article 21 of the Constitution
that he shall not be deprived of his life or personal liberty except according
to procedure established by law.
In State of Maharashtra v. Prabhakar
Pandurang Sangzgiri & A nr. (11) a person who was detained by the
Government of Maharashtra under rule 30(1) (b) of the Defence of India Rules,
1962 wrote, while in jail, a book of scientific interest and sought permission
from the State Government to send the manuscript out of the jail for
publication. The request having been rejected the detenu filed a writ petition
in the Bombay High Court which allowed the petition.
In an appeal filed in this Court by the State
Government it was held that though the conditions of detention under rule 30(4)
of the Defence of India Rules, 1962 were the same as under the Bombay
Conditions of Detention Order, 1951 which laid down conditions regulating the
restrictions on the liberty of a detenu, it could not be said that the order of
1951 conferred only certain privileges on the detenu. The Court observed:
"If this argument were to be accepted, it would mean that (1) 1 S.
C. R. 702.
27 the detenu could be starved to death, if
there was no condition providing for giving food to the detenu". The
refusal of the State Government to release the manuscript of publication was
held to constitute an infringement of the personal liberty of the detenu in
derogation of the law under which he was detained.
Though, therefore, under our Constitution,
the right of personal liberty and some of the other fundamental freedoms are
not to be totally denied to a convict during the period of incarceration, we are
unable to appreciate that the petitioners have been deprived of any of their
fundamental rights by the posting of police guards immediately outside the
jail. The affidavit of the third respondent shows that as many as 146 Naxalite
prisoners were lodged in the Visakhapatnam jail as a result of which the usual
watch and ward arrangement proved inadequate. Eleven Naxalite prisoners
including two out of the three petitioners before us, namely, Nagabhushan
Patnaik and P. Hussainar, escaped from the prison on the night of October 8,
1969. It was decided thereafter to take adequate measures for preventing the
escape of prisoners from the jail. We do not think that a convict has any right
any more than anyone else has, to dictate whether guards ought to be posted to
prevent the escape of prisoners. Prisoners will always vote against such
measures in order to steal their freedom.
The vacant land appurtenant to the jail is by
the definition of 'prison' in section 3 (1) of the Prisons Act a part of the
prison itself. It cannot, therefore, be gainsaid that members of the Andhra
Pradesh Special Police Force must be deemed to be in occupation of a part of
the prison premises.
The infiltration of policemen into prisons
must generally be deprecated for, under-trial prisoners, like two of the petitioners
before us, who are remanded to-judicial custody ought to be immune from the
coercive influence of the police. The security of one's person against an arbitrary
encroachment by the police is basic to a free society and prisoners cannot be
thrown at the mercy of policemen as if it were a part of an unwritten Law of
Crimes. Such intrusions are against "the very essence of a scheme of
ordered liberty". But the argument of Mr. Garg proceeds from purely
hypothetical considerations. The policemen who live the vacant jail land are
not shown to have any access to the, jail which is enclosed by high walls.
Their presence therefore, in the immediate vicinity of the jail can cause no
interference with the personal liberty or the lawful preoccupations of the
Counsel for the petitioners complained
bitterly against the segregation of Naxalite prisoners in a
"quarantine" and the inhuman treatment meted out to them as if they
were inmates of a "fascist concentration camp." We would like to
emphasis once again, and no emphasis in this context can be too great, that
though the Government possesses the constitutional right to initiate laws, it
cannot, by taking law into its own hands, resort to oppressive measures to curb
the political beliefs of its opponents. No person, not even a prisoner, can be
deprived of his 'life' or 'personal liberty' except according to procedure
established by law.
The American Constitution by the 5th and 14th
28 Amendments provides, inter alia, that no person shall be deprived of
"life, liberty, or property, without the due process of law".
Explaining the scope of this provision, Field J. observed in Munn v.
Illinois(1) and that the term "life" means something more than mere
animal existence and the inhibition against its deprivation extends to all
those limits and faculties by which life is enjoyed. This statement of the law
was approved by a Constitution Bench of this Court in Kharak Singh v. The State
of U. P. and Ors.(2) But, on a perusal of the affidavit of the 3rd respondent,
we are not satisfied that the allegations made by the petitioners are true,
though we do not think that the rosy picture drawn by the 3rd Respondent of
life in the Visakhapatnam Central Jail can too readily be accepted.
"Airy rooms with
cross-ventilation", a "break-fast and two regular meals a day........
the total caloric value of which is about 4000 calories per day as against 2500
calories which is the average caloric value of food consumed by an
Indian", "250 grammes of chicken, a liter of milk and 2 eggs per
day" for one of the petitioners who hasa duodenal ulcer" a lot of
reading material"; "facilities for playing games like Volleyball,
Kabbadi, Badminton, Ring, tennis etc." the supply of "musical
instruments" and "a radio network"-these and many other
amenities are, according to the 3rd Respondent, made available to the
prisoners. We hope and trust that the claim is founded on true acts. But
attention of the jail authorities needs to be drawn to what the petitioners
have described as the "marathon hungerstrike" by a large number of
Naxalite prisoners for improvement in the subhuman conditions of their
We are also not prepared to dismiss as wholly
untrue the reply of the petitioners to the 3rd Respondent's counteraffidavit,
that there is difficulty even in getting a packet of powder for a rickety
carrom-board, that the radio net work consists of a silent museum-piece, that
the supply of "musical instruments' consists of an abandoned non-speaking
harmonium and a set of dilapidated drums and that all the music that is there
is provided by an army of mobile mosquitoes. These, however, are matters of
reform and though they ought to receive priority in our Constitutional scheme,,
there denial may not necessarily constitute an encroachment on the right
guaranteed by Article 21 of the Constitution. We cannot do better than say that
the directive principle contained in Article 42 of the Constitution that "The
State shall make provision for securing just and humane conditions of
work" may benevolently be extended to living conditions in jails.
There, are subtle forms of punishment to
which convicts and under-trial prisoners are sometimes subjected out it must be
realized that these barbarous relics of a bygone era offend against the letter
and spirit of our Constitution. For want of Satisfactory proof, we hesitate to
accept the contention of the petitioners that the treatment meted out to them
is in violation of their right to life and personal liberty.
As regards the live-wire mechanism fixed atop
the jail walls. Mr. Garg argues that the act is unconstitutional because a
prisoner attempting to escape is, by the use of the device, virtually subjected
to a death 877] 94 U.S. 113.
(2)  1 S.C.R. 3 332, 347.
29 penalty. The policy of law as reflected in
section 224 of the, Penal Code, says the counsel, is to visit a prisoner
attempting to escape, or successfully escaping, to a maximum sentence of two
years and a fine. The live wire gadget lacks the authority of law and since it
is a flagrant violation of the personal liberty guaranteed by Article 21 of the
Constitution, it must be declared unconstitutional.
Counsel fears that if the court puts its seal
of approval on the use of the inhuman mechanism, prisons shall have been
converted into cremation grounds.
This argument has a strong emotional appeal
but not to reason. And the appeal to reason is what the court is primarily
concerned with in deciding upon the constitutionality of any measure.
But before examining the petitioners'
contention, it is necessary to make a clarification. Learned counsel for the
respondents harped on the reasonableness of the step taken by the jail
authorities in installing the high-voltage livewire on the jail walls. He
contended that the mechanism was installed solely for the purpose of preventing
the escape of prisoners and was therefore a reasonable restriction on the
fundamental rights of the prisoners. This, in our opinion, is a wrong approach
to the issue under consideration. If the petitioners succeed in establishing
that the particular measure taken by the jail authorities violates any of the
fundamental rights available to them under the Constitution, the justification
of the measure must be sought in some "law", within the meaning of
Article 13(3) (a) of the Constitution. The installation of the high voltage
wires lacks a statutory basis and seems to have been devised on the strength of
departmental instructions. Such instructions are neither "law" within
the meaning of Article 13(3) (a) nor are they "procedure established by
law" within the meaning of Article 21 of the Constitution. Therefore, if
the petitioners. are right in their contention that the mechanism constitutes an
infringement of any of the fundamental rights available to them, they would be
entitled to the relief sought by them that the mechanism to be dismantled. The
State has not justified the installation of the mechanism on the basis of a law
or procedure established by law".
The live-wire is installed on the top of a
wall, 14 feet from the ground level, the height of the wall itself being 13
feet. It rests on enamel non-conductors fixed to angle irons which are embedded
in the wall. The wire has no direct contact with the wall and there is no
possibility of the electrical current leaking through the wall. The
prison-walls are themselves situated at a distance of about 20 feet from the
cells where the petitioners are lodged. An electrician inspects the system
regularly. Family, the mechanism is not a secret trap as all prisoners are
warned of its existence and a non-electrical barbed-wire fences the jail walls.
There is thus no possibility that the
petitioners will come into contact with the, electrical device in the normal
pursuit of their daily chores. There is also no possibility that any other
person in the discharge of 30 his lawful functions or pursuits will come into
contact with the, same. Whatever be the nature and extent of the petitioners'
fundamental right to life and personal liberty, they have no fundamental
freedom to escape from lawful custody. 'Therefore, they cannot complain of the
installation of the live-wire mechanism with which they are likely to come into
contact only if they attempt to escape from the, prison. Carrying the
petitioners' contention to its logical conclusion, they would also be entitled
to demand that the height of the compound wall be reduced from 13 feet to say 4
or 5 feet as a fall from a height of 13 feet is likely to endanger their lives.
In fact the, petitioners could ask that all
measures be taken to render safe their attempt to escape from the prison.
In holding that the live-wire mechanism does
not interfere with any of the fundamental freedoms of the petitioners, we are
not influenced by the consideration so prominently mentioned by the 3rd
Respondent in his further affidavit that a similar system is in vogue in
Hyderabad, Warangal and Nellore. If the system is unconstitutional, its
widespread use will not make it constitutional.
Section 46, Criminal Procedure Code, 1898,
furnishes no analogy to the present case because it lays down how arrests are
to be made and the extent of force which may be used if the person to be
arrested forcibly resists the endeavor to arrest him. Sub-section (2) of
section 46 authorises the person making the arrest to "use all means
necessary to effect the arrest" while sub-section (3) provides that
"Nothing in this section gives a right to cause the death of a person who
is not accused of an offence punishable with death or with imprisonment for
life." Chapter V of the Code of 1898 in which section 46 appears is headed
: "of Arrest, Escape and Retaking". Seething 46 deals with the mode
in which arrests, for the first time, may be effected. Section 66 deals with
the power, on escape, to pursue and retake the prisoner. It provides that
"if a person in lawful custody escapes or is rescued, the person from
whose custody be escaped or was rescued may immediately pursue and arrest him
in any place in India." Apart from this, the installation of the
high-voltage wire does not offend against the command of section 46(3) even on
the assumption that the sub-section covers the re arrest of a prisoner who has
escaped from lawful custody. The installation of the system does not by itself
cause the death of the prisoner. It is a preventive measure intended to act as
a deterrent and can cause death only if a prisoner courts death by scaling the
wall while attempting to escape from lawful custody. In that sense, even a high
wall without the electrical device would be open to the exception that a
prisoner falling from a height, while attempting to escape by scaling the wall,
may meet with his death. Section 46(3) is, therefore, not contravened and the
grievance that the mechanism involves a total negation of the safeguards
afforded by Criminal law is without any substance.
The petitioners are, therefore, not entitled
to either of the two reliefs sought by them and the rule must be discharged but
that is on the 31 ground that the acts complained of are not shown to cause
any. interference with the fundamental rights available to them and not on the
ground that prisoners possess no fundamental rights. The rights claimed by the
petitioners as fundamental may not readily fit in the classical could of
fundamental freedoms, but "basic rights do not become petrified as of any
one time, even though as a matter of human experience some may not too
rhetorically be called eternal verities. It is of the very nature of a free
society to advance in its standards of what is deemed reasonable and right....
To rely on a tidy formula for the easy determination of what is a fundamental
right for purposes of legal enforcement may satisfy a longing for certainty but
ignores the movements of a free society."(1) P.H.P.
(1) Per Frankfurter J. in Wolf v. Colorado,
(1949) 338 U. S.25, 27.