Charles Sobraj Vs. The Suptd., Central
Jail, Tihar, New Delhi  INSC 152 (31 August 1978)
REDDY, O. CHINNAPPA (J)
CITATION: 1978 AIR 1514 1979 SCR (1) 512 1978
SCC (4) 104
R 1980 SC 898 (83,140) RF 1980 SC2147 (43,63)
Powers of the Supreme Court to interfere to
right the wrong and restore the rule of law-Constitution of India 1950, Art.
Fundamental Rights-Whether the prisoners can
invoke their constitutional rights under Part III of the Constitution-Prison
justice and Art. 21 of the Constitution- Prison justice is a sort of solemn
covenant running with the power of the Court to sentence the accused- Judicial
discretion vis-a-vis prison administration and prisoners rights, explained-
Correctional confinement and Court's jurisdiction.
The petitioner a convict having to serve two
sentences of long imprisonment, plus record of one escape and one attempt of
suicide and interpol. reports of many crimes abroad in addition to several
cases pending in India against him, through this writ petition contended that
barbarity and inhuman treatment have been hurled at him and that intentional
discrimination has been his lot throughout and, therefore sought the assistance
or this Court for directing the jail authorities to give him finer foreigner as
companions, and to remove him from a high security ward like Ward-l to a more
relaxed ward, be invoking the provisions of Articles 14, 19 and 21 of the
Dismissing the Writ Petition the Court,
HELD: (1) Imprisonment does not spell
farewell to fundamental rights although, by a realistic re-appraisal,, Courts
will refuse to recognise the full panoply of Part lII of the Constitution
enjoyed by a free citizen. Whenever fundamental rights are flouted or
legislative protection ignored to any prisoner's prejudice, this Court's writ
will run breaking through stone walls and iron bars, to right the wrong and
restore the rule of law. Then the parrot-cry of discipline thrill not deter, of
security will not scare, of discretion will not dissuade, the judical process.
For if courts 'cave in' when great rights and sound within the sound-proof,
sight-proof precincts of prison houses where often disenters and minorities are
caged, Bastilles will be re-enacted. When law ends tyranny begins, and history
whispers, iron has never ben the answer to the rights of men.[514 H, 515 A-Bl
(2) Art. 21 of the Constitution read with Art. 19(1)(d) and (5) is capable of
wider application than the imperial mischief which give its birth and must draw
its meaning from the evolving standards of decency and dignity that mark the
progress of a mature society. Fair procedure is the soul of Art. 21,
reasonableness of the restriction is the essence of Art. 19(5) and sweeping
discretion degenerating into arbitrary discrimination is anthema for Art. 14.
Constitutional Karuna is thus injected into
incarceratory strategy to produce prison justice.[ 515 CD] Sunil Batra v. Delhi
Admn. & ors. and Charles Gurumukh Sobraj. State of Delhi  I SCR 392
referred to, 513 Kharak Singh v. State of U.P.  1 SCR 357 ;
(3) Prison justice implies Court's continuing
duty and authority to ensure that the judicial warrant which deprives a person
of his life or liberty is not exceeded, subverted or stultified. It is a sort
of solemn covenant running with the power to sentence. Where a prison practice
or internal instruction places harsh restrictions on jail life, breaching
guaranteed rights, the Court directly comes in.
Every prison sentence is a conditioned
deprivation of life auld liberty. with civilized norms built in and unlimited
trauma interdicted. In this sense judicial policy of prison practices is
implied in the sentencing power. The Criminal judiciary have thus a duty to
guardian their sentences and visit prisons when necessary. The penological
goals which may be regarded as reasonable justification for restricting the
right to move freely within the confines of a penitentiary are now well
settled. And if prisoners have title to Articles 19, 21 and 14 rights, subject
to the limitations, there must be some correlation between depriviation of
comfort and legitimate function of a correctional system. [515 G, 516-E, F-G]
(4 ) Deterrence, both specific and general rehabilitation, and institutional
security are vital considerations. Compassion wherever possible and cruelty
only where inevitable is the art of correctional confinement. When prison
policy advances such a valid goal, the Court will not intervene officiously.
But when an inmate is cruelly restricted in a manner which supports no such
relevant purpose, the restriction becomes unreasonable and arbitrary, and
unconstitutionality is the consequence.
Traumatic futility is obnoxious to pragmatic
Social defence is the raison d'etre of the
penal code and bears upon judicial control over prison administration. If a
whole atmosphere of constant fear of violence, frequent torture and denial of
opportunity to improve oneself is created or if medical facilities and basic
elements of care and comfort necessary to sustain life are refused, then also
the humane jurisdiction of the Court will become operational based on Art.. 19.
[516 G-H, 517 D-E] 5) Prisoners retain all rights enjoyed by free citizens
except those lost necessarily as an incident of confinement. Rights enjoyed by
prisoners under Arts 14, 19 and 21 though limited are not static and will rise
to human heights when challenging situations arise. [518 A-B] R. C. Cooper v.
Union of India,  1 CR 512; Menaka Gandhi v. F Union of India & Anr.,
 1 CR 248, Mohammad Giasuddin v. State of Andhra pradesh  I CR 153;
(6) However, a prison system may make
rational distinctions in making assignments to inmates of vocational, educational
and work opportunities available but it is constitutionally impermissible to do
so without a functional classification system. Courts cannot be critical of the
administration if it makes a classification between dangerous prisoners and
ordinary prisoners. A distinction between the under trials and convicts is
reasonable. In fact lazy relaxation on security is a professional risk inside a
prison. [517 F, (G, 519 B, Cl 'The petitioner being a foreigner cannot claim
rights under Art. 19. Moreover he is now a convict and is not in solitary
confinement. [519 D] OBSERVATlON:
[The Court must not rush in where the jailor
fears to tread. While the country may not make the prison boss the sole
sadistic arbiter of incarcerated 514 human, the community may be in no mood to
handover central prisons to be run by Courts Each instrumentality must function
within its province)
ORlGlNAL JURISDICTION: Writ Petition No. 4305
Under Article 32 of the Constitution.
N. M. Ghatate and S. V. Deshpande. for the
Petitioner Soli J. Sorabjee, Addl. Sol. General and Girish Chandra for the
The order of the Court was delivered by
KRISHNA IYER, J. A litigation with a social dimension, even in a blinkered
adversary system, serves a larger cause than the limited lis before the court.
This petition, with non- specific reliefs, is One such.
Sobraj, the petitioner, by the frequency of
his forensic com plaints against incarceratory torture and Dr.
Ghatate, his counsel by the piquancy of his
hortative advocacy of freedom behind bars. have sought to convert the judicial
process from a constitutional sentinel of prison justice-which, emphatically,
it is-into a meticulous auditor-general of jail cells-which, pejoratively, it
is not-although, on occasions, 'thin partition do their bounds divide`. Often,
as here, the fountain of confusion in penitentiary jurisprudence is
forgetfulness of fundamentals.
Once the legal basics are stated, Sobraj,
with his disingenuous, finical grievances, will be out of court.
What are the governing principles,
decisionally set down by this court in Batra and Sobraj? Has the court
jurisdiction to decide prisoners' charges of violation of rights ? If it has,
can it meddle with the prison administration and its problems of security and
discipline from an 'innocent' distance ? Put tersely, both the 'hands off.
doctrine and the 'take over' theory have been rebuffed as untenable extremes
and a middle round has been found of intervening when constitutional rights or
statutory prescriptions are transgressed to the injury of the prisoner and
declining where lesser matters of institutional order and man management,
though irksome to some, are alone involved.
Contemporary profusion of prison torture
reports makes it necessary to drive home the obvious, to shake prison top brass
from the callous complacency of unaccountable autonomy within that walled off
world of human held incommunicado.
Whenever fundamental rights are flouted or
legislative protection ignored, to any prisoner's prejudice, this Court's writ
will run, breaking through stone walls and iron bars, to right the wrong and
restore the rule of law. Then the 515 parrot-cry of discipline will not deter,
of security will not scare of discretion will not dissuade, the judicial
process. For if courts 'cave in" when great rights are gouged within the
sound-proof, sight-proof precincts of prison houses, where, often, dissenters
and minorities are caged, Bastilles will be re-enacted. When law and tyranny
begins: and history whispers, iron has never been the answer to the rights of
men. Therefore we affirm that imprisonment does not spell farewell to
fundamental rights although, by a realistic re-appraisal, courts will refuse to
recognise the full panoply of Part III enjoyed by a citizen.
This proposition was not contested by the
learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness
depend, for us, upon the Eighth Amendment to the U.S. Constitution. Art. 21,
read with Art. 19(1) (d) and (5), is capable of wider application than the imperial
mischief which gave its birth and must draw Its meaning from the evolving
standards of decency and dignity that mark the progress of a mature society, as
Batra and Sobraj have underscored and the American judges have highlighted.
Fair procedure is the soul of Art. 21, reasonableness of the restriction is the
essence of Art. 19(S) and sweeping discretion degenerating into arbitrary
discrimination is anathema for Art. 14. Constitutional kurana is thus injected
into incarceratory strategy to produce prison justice. And as an annotation of
Art. 21, this Court has adopted, in Kharak Singh's case(I) that expanded
connotation of 'life' given by Field, J. which we quote as reminder:
"Something more than mere animal
existence. the inhibition against its deprivation extends to all those limbs
and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body by the amputation of an arm or leg, or the putting out
of an eye, or the destruction of any other organ of the body through which the
soul communicates with the outer world".
The next axiom of prison justice is the
court's continuing duty and authority to ensure that the judicial warrant which
deprives a person of his life or liberty is not exceeded, subverted or
stultified lt is a sort of solemn covenant running with the power to sentence.
The U.S. Courts have intensified their
oversight of State penal facilities reflecting a heightened concern with the
extent to which the ills that plague so-called correctional institutions
violate basic rights. points out Edward S. Crowin. (2). Although. the learned
(1)  I SCR 357.
(2) Supplement to Edward S. Corwin's
"The constitution' and What it means Today; 1976 Edn.
516 indeed, the decisions show that reliance
is placed on the Eighth: Amendment, as we have earlier pointed out. the same.
sensitized attention and protective process
emanate from the humane provisions of Part III of our Constitution.
Viewed differently, supposing, a court
sentences a person to simple imprisonment or assigns him 'B' class treatment
and the jail authorities unwittingly or vindictively put him under rigorous
imprisonment or subject him to 'C' class treatment, does it not show contempt
of the court's authority and deprivation of liberty beyond a degree validated
by the court warrant ? Likewise, where a prisoner is subjected to brutality,
exploiting the fact that he is helplessly within the custody of the Jail
Administration, does it not deprive the prisoner of his life and liberty beyond
the prescribed limits set by the court ? Yet again, where conditions within a
prison are such that inmates incarcerated therein will inevitably and
necessarily become more sociapathic than they were prior to the sentence, is
not the court' punitive purpose, charged with healing hope, stultified by the
prison authorities ? of course, where a prison practice or internal instruction
places harsh restrictions on jail life, breaching, guaranteed rights. the court
directly comes in. Every prison sentence is a conditioned deprivation of life
and liberty, with civilised norms built in and unlimited trauma interdicted. In
this sense, judicial policing of prison practices is implied in the sentencing
power. The Criminal judiciary have thus a duty to guardian their sentences and
visit prisons hen necessarily. Many of them do not know or exercise this
Another jurisdictional facet may be touched
upon in view of the widely worded relief sought to treat Sobraj 'in a humane
and dignified manner, keeping in view the adverse effect of` his confinement
upon his mental and physical conditions . The penological goals which may be
regarded as reasonable justification For restricting the right to move freely
within the confines of a penitentiary are now well- settled. And if prisoners
have title to Article 19, 21 and 14 rights, subject to the limitation we have
indicated, there must be some correlation between deprivation of freedom and
the legitimate functions of a correctional system. It is now well-settled, as a
stream of rulings of courts proves, that deterrence, both specific and general,
rehabilitation and institutional security are vital considerations. Compassion
wherever possible and cruelty only where inevitable is the art of correctional
confinement. When prison policy advances such a valid goal, the court will not
517 This overall attitude was incorporated as
a standard by- the American National Advisory Commission on Crimine Justice
Standards and Goals:- '..... A rehabilitative purpose is or ought to be
implicit in every sentence of an offender unless ordered otherwise by the
sentencing court''.(l) The U.S. Supreme Court summed up:
"In a series of decisions this court has
held that, even though the governmental purpose be legitimate anti substantial,
that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the and can by more narrowly achieved. The breadth of
legislative abridgment must be viewed in the light of less drastic means for
achieving, the same basic purpose."(') But when an inmate is cruelly
restricted in a manner which supports no such relevant purpose the restriction
becomes unreasonable and arbitrary and unconstitutionality is the consequence.
Traumatic ` futility is obnoxious to pragmatic legality. Social defence is the
raison of the penal code and bears upon judicial control over prison
administration. If a whole atmosphere of constant fear of violence, frequent
torture and denial of opportunity to improve oneself is created or if medical
facilities and basic elements of care arid comfort necessary to sustain life
are refused then also the humane jurisdiction of the court will become
operational based on Art. 19 '. Other forms of brutal unreasonableness and
anti-rehabilitative attitude violative of constitutionality may be thought of
in n penal system but we wish to lay down only a broad guideline that where
policies. with a 'Zoological touch', which do not serve valid penal objectives
are pursued in penitentiaries so as to inflict conditions so unreasonable as to
frustrate the ability of inmates to engage in rehabilitations. the court is not
helpless. However as prison system may make rational distinctions in making
assignments to inmates of vocational. educational Land work opportunities
available but it is constitutionally impermissible to do sc without as
functional classification system. The mere fact that a prisoner is poor or
rich, high- born or ill bred, is certainly irrational as a differential ill a
secular socialist high republic'. Since the petitioner charges the jail staff
with barbaric and inhuman treatment in prison we are called upon to delineate
the broad boundaries of judicial jurisdiction vis a-vis prison administration
and prisoner's rights.
(I) "To solve The age-old Problem of
crime" Roger Lanphear; J. D. p-19 (2) Ibid pr 21 518 The court is
reluctant to intervene in the day-to-day operation of the State penal system;
but undue harshness and avoidable tantrums, under the guise of discipline and
security, gain no immunity from court writs. The reason is, prisoners retain
all rights enjoyed by free citizens except those lost necessarily as an
incident of confinement.
Moreover, the rights enjoyed by prisoners
under Articles 14, 19 and 21, though limited, are not static and will rise to
human heights when challenging situations arise. Cooper(1) and Menaka Gandhi(2)
have thus compulsive consequence benignant to prisoners.
The petitioner in the present case has
contended that barbaric and inhuman treatment have been hurled at him and that
intentional discrimination has been his lot throughout.
These allegations invited us to examine the
limits and purpose of judicial jurisdiction but we have to apply the principles
so laid down to the facts of the present case.
Starry abstractions do not make sense except
in the context of concrete facts. That is why we agree with the propositions Of
law urged by Dr. Ghatate but disagree with the distress and discrimination his
client wails about.
True, confrontedm with cruel conditions of
confinement, the court has an expanded role. True, the light to life is more
than mere animal existence, or vegetable subsistence.(3) True, the worth of the
human person and dignity and divinity of every individual inform articles 19
and 21 even in a prison setting. True, constitutional provisions and municipal
laws must interpreted in the light of the normative laws of nations, wherever
possible and a prisoner does not forfeit his Part III rights. But that are the
facts here ? Charles Sobraj is no longer an under-trial. having to serve two
sentence of long imprisonment. He is given all the amenities of .1 'B' class
prisoner. He goes on hunger strike but medical men take care of him. Ward I,
where he is lodged, gives him the facilities of wards XIII and XIV where he
wants to he moved. He has record of one escape and one attempt at suicide and
Interpol reports of many crimes abroad. There are several cases pending in
India against him. Even so, the barbarity of bat fetters inflicted on him lay a
qualmless jail staff was abandoned under orders of this Court. Now he seeks the
other extreme of coddling as if a jail were a country club or good hotel. Give
me finer foreigners as companions. he demands. Don't keep convict cooks and
warders as (1)  l SCR Sl2.
(2)  l SCR 248 (3) Mohammed Giasuddin
v. State of Andhra Pradesh.
 1 SCR 153 519 jail mated in my cell he
rails. Remove me from a high security ward like Ward I to a more relaxed ward
like Ward 14 or 13, he solicits. These delicate and genteel requests from a
prisoner with his record and potential were turned down by the Superintendent
and the reasons for such rejection, based on security, rules and allergy of
other inmates to be his risky fellow-inmates have been stated on oath. We cannot
be critical of the Administration if it makes a classification between
dangerous prisoners and ordinary prisoners. In the present case, the
Superintendent swears, and it is undisputed, that the petitioner is not under
solitary confinement. We further aver that a distinction between under-trials
and convicts is reasonable and the petitioner is now a convict. In fact, lazy
relaxation on security is a professional risk inside a prison.
The court must not rush in where the jailor
fears to tread. While the country may not make the prison boss the sole
sadistic arbiter of incarcerated humans, the community may be in no mood to
hand over central prisons to be run by courts. Each instrumentality must
sanction within its province. We have no hesitation to hold that while Sobraj
has done litigative service for prison reform, he has signally failed to
substantiate any legal injury. We, therefore, dismiss the writ petition, making
it clear that strictly speaking the petitioner being a foreigner cannot claim
rights under Art. 19, but we have discussed at some length the import of
Articles 14, 19 and 21 because they are interlaced and in any case apply to
Indian citizens. , Petition dismissed.
S.R. Petition dismisses.