Sunil Batra Vs. Delhi Administration
 INSC 269 (20 December 1979)
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 1579 1980 SCR (2) 557 1980
SCC (3) 488
R 1981 SC 625 (7,8,11,12,14) R 1981 SC 746
(3,4) R 1981 SC1767 (11,13,21,23) R 1982 SC 149 (16) R 1982 SC 710 (108,109) R
1986 SC 180 (39)
Constitution of India 1950, Article
32-Tortune inflicted on prisoner in jail-factum of forture brought to notice of
court-power and responsibility of court to intervene and protect prisoner.
Prisons Act 1894, Ss 27, 29 and 61 &
Punjab Prison Manual, Paras 41, 47, 49 and 53-Solitary confinement, denial of
privileges, amenities to prisoners-to be imposed with judicial appraisal of
Sessions Judge-Prison Manual to be ready reach of prisoners-visits to jails by
visitors, official and non-official-keeping of grievance boxes in prisons and
remedial action on grievances by Sessions judges-Periodical reports to be
forwarded to the High Court- reforms suggested in prison management and
Legal Aid-provision of free legal aid to
prisoners- necessity of.
The petitioner, a convict under death
sentence, through a letter to one of the Judges of this Court alleged that
torture was practised upon another prisoner by a jail warder, to extract money
from the victim through his visiting relations. The letter was converted into a
habeas corpus proceeding. The Court issued notice to the State and the
concerned officials. It also appointed amicus curiae and authorised them to
visit the prison, meet the prisoner, see relevant documents and interview
necessary witnesses so as to enable them to inform themselves about the
surrounding circumstances and the scenario of events.
The amicus curiae after visiting the jail and
examining witnesses reported that the prisoner sustained serious anal injury
because a rod was driven into that aperture to inflict inhuman torture and that
as the bleeding had not stopped, he was removed to the jail hospital and later
to the Irvin Hospital. It was also reported that the prisoner's explanation for
the anal rupture was an unfulfilled demand of the warder for money, and that
attempts were made by the departmental officers to hush up the crime by
overawing the prisoner and the jail doctor and offering a story that the injury
was either due to a fall of self-inflication or due to piles.
Allowing the writ petition.
HELD:(Per Krishna Iyer and Chinnappa Reddy,
1. (a) Prem Chand the prisoner, has been
tortured illegally and the Superintendent cannot absolve himself from
responsibility even though he may not be directly a party.
Lack of vigilance is limited guilt. The
primary guilt cannot be fixed because a criminal case is pending or is in the
offing. The State shall take action against the investigating police for
collusive dilatoriness and deviousness.[599 F] 558 (b) The Superintendent is
directed to ensure that no corporal punishment or personal violence on Prem
Chand shall be inflicted. No irons shall be forced on the person in vindictive
spirit. [599 H] (c) Lawyers nominated by the District Magistrate, Sessions
Judge, High Court or the Supreme Court will be given all facilities for
interviews, visits and confidential communication with prisoners subject to
discipline and security considerations. The lawyers so designated shall be
bound to make periodical visits and record and report to the concerned courts,
results which have relevance to legal grievances. [600 A-B] (d) 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. [600 C] (e) 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 to
the High Court for the latter to initiate, if found necessary, habeas action.
[600 D] (f) 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, an account
of emergency is difficult such information shall be given within two days of
2. In our era of human rights' consciousness
the habeas writ has functional plurality and the constitutional regard for
human decency and dignity is tested by this capability.
3. Protection of the prisoner within his
rights is part of the office of Article 32. [564 C]
4. It behoves the court to insist that, in
the eye of law, prisoners are persons not animals, and to punish the deviant
'guardians' of the prison system where they go berserk and defile the dignity
of the human inmate. Prison houses are part of Indian earth and the Indian
Constitution cannot be held at bay by jail officials 'dressed in a little,
brief authority'. when Part III is invoked by a convict. When a prisoner is
traumatized, the Constitution suffers a shock. [564 D-E]
5. The courts in America have, through the
decisional process, brought the rule of law into the prison system pushing
back, pro-tanto, the 'hands-off' doctrine. The content of our constitutional
liberties being no less, the dynamics of habeas writs there developed help the
judicial process here. The full potential of Arts. 21, 19 & 14 after Maneka
Gandhi has been unfolded by this Court in Hoskot and Batra. Today, human rights
jurisprudence in India has a constitutional status and sweep. [573 A, 574 D]
6. Rulings of this Court have highlighted the
fact that the framers of the Constitution have freed the powers under Art. 32
from the rigid restraints of 559 the traditional English writs. Flexible
directives, even affirmative action moulded to grant relief, may realistically
be issued and fall within its fertile width.
[575 F] Dwarkanath v. income Tax officer
 3 SCR 536 referred to.
7. Where injustice, verging on inhumanity,
emerges from hacking human rights guaranteed in Part III and the victim
beseeches the Court to intervene and relieve, the Court will be a functional
futility as a constitutional instrumentality if it does not go into action until
the wrong is righted.
The Court is not a distant abstraction
omnipotent in the books but an activist institution which is the cynosure of
public hope. The court can issue writs to meet the new challenges. [576 D]
8. Affirmed in unmistakables terms that the
court has jurisdiction under Art. 32 and so too under Art. 226, a clear power
and, therefore, a public duty to give relief to sentence in prison setting.
9. In Sunil Batra v. Delhi Administration
(1978) 4 SCC 409 this Court rejected the 'hands-off' doctrine and ruled that
fundamental rights do not flee the person as he enters the prison although they
may suffer shrinkage necessitated by incarceration. Our Constitutional culture
has now crystallised in favour of prison justice and judicial jurisdiction.
[576 H-577 A]
10. Where the rights of a prisoner, either
under the Constitution or under other law, are violated the writ power of the
court can and should run to his rescue. There is a warrant for this vigil. The
court process casts the convict into the prison system and the deprivation of
his freedom is not a blind penitentiary affliction but a belighted
institutionalisation geared to a social good. The court has a continuing
responsibility to ensure that the constitutional purpose of the deprivation is
not defeated by the prison administration. [577 E-F]
11. Whether inside prison or outside, a
person shall not be deprived of his guaranteed freedom save by methods 'right,
just and fair'. [578 E]
12. A prisoner wears the armour of basic freedom
even behind bars and that on breach thereof by lawless officials the law will
respond to his distress signals through 'writ' aid. The Indian human has a
constant companion-the court armed with the Constitution. [578 H] Maneka Gandhi
v. Union of India  1 SCC 248: N. H. Hoskot v. Maharashtra,  1 SCR
192, referred to.
13. Implicit in the power to deprive the
sentence of his personal liberty, the Court has to ensure that no more and no
less than is warranted by the sentence happens. If the prisoner breaks down
because of mental torture, psychic pressure or physical infliction beyond the
licit limits of lawful imprisonment the Prison Administration shall be liable
for the excess. On the contrary, if an influential convict is able to buy advantages
and liberties to avoid or water down the deprivation implied in the sentence
the Prison Establishment will be called to order for such adulteration or
dilution of court sentences by executive palliation, if unwarranted by law.
14. The court has power and responsibility to
intervene and protect the prisoner against mayhem, crude or subtle, and may use
habeas corpus for 560 enforcing in-prison humanism and forbiddance of harsher
restraints and heavier severities than the sentence carries.
15. Law in the books and in the courts is of
no help unless it reaches the prisoner in understandable language and available
form. There is therefore need to get ready a Prisoners' Handbook in the
regional language and make them freely available to the inmates. To know the
law is the first step to be free from fear of unlaw. [582 C] 16(i) The most
important right of a prisoner is to integrity of his physical person and mental
personality. No prisoner can be personally subjected to deprivations not necessitated
by the fact of incarceration and the sentence of court. [584 D, 583 C] (ii)
Inflictions may take many protean forms, apart from physical assaults. Pushing
the prisoner into a solitary cell, denial of a necessary amenity, and more
dreadful sometimes, transfer to a distant prison where visits or society of
friends or relatives may be snapped, allotment of degrading labour, assignment
to a desperate or tough gang and the like, may be punitive in effect. Every
such affliction or abridgement is an infraction of liberty or life in its wider
sense and cannot be sustained unless Art.
21 is satisfied. There must be a corrective
legal procedure, fair and reasonable and effective. Such infraction will be
arbitrary under Article 14, if it is dependent on unguided discretion,
unreasonable under Art. 19 if it is irremediable and unappealable and unfair
under Art. 21 if it violates natural justice. Some prisoners, for their own
safety, may desire segregation. In such cases, written consent and immediate
report to higher authority are the least, if abuse is to be tabooed. [584 F-H,
586 G] (iii) Visit to prisoners by family and friends are a solace in
insulation: and only a dehumanised system can derive vicarious delight in
depriving prison inmates of this humane amenity. Subject, of course, to search
and discipline and other security criteria, the right to society of fellow-
men, parents and other family members cannot be denied in the light of Art. 19
and its sweep., [586 H]
17. Prison power, absent judicial watch tower,
may tend towards torture. The judges are guardians of prisoners' rights because
they have a duty to secure the execution of the sentences without excesses and
to sustain the personal liberties of prisoners without violence on or violation
of the inmates' personality. [588 D, 590 C]
18. In a democracy, a wrong to some one is a
wrong to every one and an unpunished criminal makes society vicariously guilty.
19. When offences are alleged to have taken
place within the prison, there should be no tinge or trace of departmental
collusion or league between the police and the prison staff. [605 A]
[Directives for which no specific time limit fixed except the urgency of their
1(i) 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 fellowship which will ease tensions.
561 A prisoners' wall paper, which will
freely ventilate grievances will also reduce stress. All these are implementary
of s. 61 of the Prisons Act. [601 D,E] (ii) The State shall take steps to keep
up to the Standard Minimum Rules for Treatment of Prisoners recommended by the
United Nations, especially those relating to work and wages, treatment with
dignity, community contact and correctional strategies. [601 F] (iii) The Prisons
Act needs rehabilitation and the Prison Manual total over- haul. A
correctional-cum- orientation course is necessitous for the prison staff
inculcating the constitutional values, therapeutic approaches and tension-free
management. [601 H] (iv) 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 2 cell for prisoner
relief. [602 A] (Per Pathak J. concurring)
1. The prisoner Prem Chand has been tortured
while in custody in the Tihar Jail. [605 D]
2. The Superintendent of the jail to ensure
that no punishment or personal violence is inflicted on Prem Chand by reason of
the complaint made in regard to the torture.
3. Pressing need for prison reform and provision
for adequate facilities to prisoners, to enable them not only to be acquainted
with their legal riots but also to record their complaints and grievances and
to have confidential interviews periodically with lawyers nominated for the
purpose by the District Magistrate or the court having jurisdiction. [605 G]
4. Imperative that District Magistrates and
Sessions Judges should visit the prisons in their jurisdiction and afford
effective opportunity to the prisoners for ventilating their grievances and
where the matter lies within their powers, make expeditious enquiry and take
suitable remedial action. [605 H]
5. Sessions Judge should be informed by the
jail authorities of any punitive action taken against a prisoner within two
days of such action. [606 A]
6. A statement by the Sessions Judge in
regard to his visits, enquiries made and action then thereon shall be submitted
periodically to the High Court to acquaint it with the conditions prevailing in
the prisons within its jurisdiction. [606 B]
ORIGINAL JURISDICTION: Writ Petition No. 1009
Under Article 32 of the Constitution.
Dr. Y. S. Chitale and Mukul Mudgal for the
Soli 1. Sorabjee, Solicitor General of India,
and R. N. Sachthey for the Respondent.
562 The Judgment of V. R. Krishna Iyer and O.
Chinnappa Reddy, JJ. was delivered by Krishna Iyer, J. R. S. Pathak, J. gave a
KRISHNA IYER, J.-This, writ petition
originated, epistolary fashion in a letter by a prisoner, Batra, to a Judge of
this' Court (one of us), complaining of a brutal assault by a Head Warder on
another prisoner, Prem Chand.
Forms were forsaken since freedom was at
stake and the letter was posted on the Bench to be metamorphosed into a habeas
proceeding and was judicially navigated with electric creativity, thanks to the
humanist scholarship of Dr. Y. S. Chitale as amicus Curiae and the erudite
passion for affirmative court action of Shri Soli Sorabjee, the learned
Solicitor General. Where the prison process is dehumanized, forensic help,
undeflected by the negative crudities of the adversary system, makes us dare
where we might have daunted.
The finest hour of justice comes when court
and counsel constructively collaborate to fashion a relief in the individual
case and fathom deeper to cure the institutional pathology which breeds wrongs
and defies rights. Here, the individual is a prisoner whose anus was allegedly
pierced with a warder's baton and the institution is the Tihar Prison, right in
the capital of the country and under the nose of the Home Ministry.
The Perspective This case is revelatory of
several sins in this central penitentiary. 'Something is rotten in the State of
Denmark !' The constitutionaI imperative which informs our perspective in this
habeas corpus proceeding must first be set out. The rule of law meets with its
Waterloo when the State's minions become law-breakers and so the court, as the
sentinel of the nation and the voice of the Constitution, runs down the
violators with its writ and secures compliance with human rights even behind
iron bars and by prison warders. This case is at once a symptom, a symbol and a
signpost vis a vis human rights in prison situations. When prison trauma
prevails, prison justice must invigilate and hence we broaden our 'habeas' jurisdiction.
Jurisprudence cannot slumber when the very campuses of punitive justice witness
The petitioner does not seek the release of
the prisoner because a life sentence keeps him in confinement.
But the dynamic role of judicial remedies,
after Batra's case, imparts to the habeas corpus writ a versatile vitality and
operational utility that makes the healing presence of the law live up to its
reputation as bastion of liberty even within the secrecy of the hidden cell.
Blackstone called it 'the 563 great and efficacious writ in all manner of
illegal confinement' and Lord Deman proclaimed in 1839 that it had been 'for
ages effectual to an extent never known in any other country'. So long as Batra
remains good law, judicial policing of Bastille practices will broaden to
embrace the wider range of prison vices. Dr. Chitale drew our attention to
American legal literature disclosing the trend while Shri Soli Sorabjee for the
Union of India, cited Corwin. Corwin's remarks on American constitutional law, referred
to with approval in Batra, has our assent:
Federal 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 institution
overcrowding, understaffing unsanitary facilities, brutality, constant fear of
violence, lack of adequate medical and mental health care, poor food service,
intrusive correspondence restrictions, inhumane isolation, segregation,
inadequate or non-existent rehabilitative and/or educational programs,
deficient recreational opportunities-violate the Eighth Amendment ban on
"cruel and unusual punishments." The essence of the matter is that in
our era of human rights consciousness the habeas writ has functional plurality
and the constitutional regard for human decency and dignity is tested by this
capability. We ideologically accept the words of Will Durant(a). "It is
time for all good men to come to the aid of their party, whose name is
civilization." Likewise, we endorse, as part of our constitutional
thought, what the British Government's White Paper, titled 'People in Prison',
stated with telling effect:
A society that believes in the worth of
individual beings can have the quality of its belief judges, at least in part,
by the quality of its prison and probate services and of the resources made
available to them.
The learned Solicitor General brought this
key-note thought to our notice in the matchless diction of Sir Winston
Churchill and briefly referred to in Batra in a speech seventy years ago:
The mood and temper of the public in regard
to the treatment of crime and criminals is one of the most unfailing tests of
the civilisation of any country. A calm dispassionate 564 recognition of the
rights of the accused, and even of the convicted criminal, against the State-a
constant heart searching by all charged with the duty of punishment a desire
and eagerness to rehabilitate in the world of industry those who have paid
their due in the hard coinage of punishment: tireless efforts towards the
discovery of curative and regenerative processes: unfailing faith that there is
a treasure, if you can only find it in the heart of every man. These are the
symbols, which, in the treatment of crime and criminal, mark and measure the
stored-up strength of a nation, and are sign and proof of the living virtue in
Truly, this is a perspective-setter and this
is also the import of the Preamble and Art 21 as we will presently see.
We are satisfied that protection of the
prisoner within his rights is part of the office of Art.
`Prisons are built with stones of law' and so
it behoves the court to insist that, in the eye of law, prisoners are persons,
not animals, and punish the deviant 'guardians' of the prison system where they
go berserk and defile the dignity of the human inmate. Prison houses are part
of Indian earth and the Indian Constitution cannot be held at bay by jail
officials 'dressed ill a little, brief authority', when Part III is invoked by
a convict. For when a prisoner is traumatized, the Constitution suffers a
And when the Court takes cognizance of such
violence and violation, it does, like the. Hound of Heaven, 'But with
unhurrying chase, And unperturbed pace, Deliberate speed, and Majestic
instancy' follow the official offender and frown down the outlaw adventure.
The Facts What are the facts which have
triggered off this judicial action ? The resume of facts, foul on its face,
reveals the legal issues raised, brings into focus the basics of prisoner's
rights and helps the court forge remedial directives so as to harmonize the
expending habeas jurisprudence with dawning horizons of human rights and
enlightened measures of prison discipline. Batra, a convict under death
sentence lodged in the Tihar Central Jail, came to know of a crime of torture
practised upon another prisoner, Prem Chand, allegedly by a jail warder, Maggar
Singh, as a means to extract money from the victim through his visiting
relations. Batra braved the consequences of Jail indignation 565 and brought
the incident to the ken of the Court, resulting in these proceedings which,
though not strictly traditional, are clearly in the nature of habeas corpus
writs and therefore, within the wider sweep of Art. 32. The court issued notice
to the State and the concerned officials, appointed Dr. Y. S. Chitale and Shri
Mukul Mudgal as amicus, authorised them to visit the prison, meet the prisoner
and see relevant documents and interview necessary witnesses so as to enable
them to inform themselves about the surrounding circumstances and the cruel
scenario of events. Counsel on both sides have sensitized the issue of prison
justice admirably and catalysed the cause of jail reforms effectively. The
democratic hope of the procession is its 'people's orientation, not its
lucrative potential nor its intellectual intricacies. And service in the field
of the handicapped human sectors, like prisoners, is a social justice
contribution. The enthusiastic work done in the case by the young lawyer, Shri
Mudgal, assisting Dr. Chitale, deserves our commendation, even as the
unreserved support rendered to the Court by Shri Sachthey is in the good
tradition of the Bar.
Back to the facts. One Central episode round
which the skein of further facts is wound is beyond doubt, viz. that Prem
Chand, the prisoner, sustained serious anal injury on or about August 26, 1979,
because a rod was driven into that sore aperture to inflict inhuman torture.
The contemporaneous entry in the Jail Hospital register reads:
One prisoner Prem Chand s/o Pyara Lal has
developed tear of anus due to forced insertion of stick by someone,. He require
surgical repair and his bleeding has not stopped. He is to go to Irwin Hospital
Remarks of Superintendent. Noted 27 August,
79 sd D.S. 1.2.35 p.m.
(DR. KAPOOR) 2.00 p.m.
The prisoner's later narration to the doctor
in the Irwin Hospital corroborates the case. The unsuccessful and unworthy
attempts, presumably by overawing the prisoner and even the doctor, and other
dubious devices. which we do not now scan, to do away with this G. primary
incriminating factor by offering incredible alternatives like rupture of the
anus by a fall or self-infliction or due to piles and sillier stories, only
show how the subtle torture of the officials could extract falsehoods from the
victim and even medical officers, exclupatory of the, official criminal whoever
he be. There are some traces of attempts to hush up the crime where the higher
officers have not been that innocent. We are taken aback that the tardy police
investigation, 566 with its lethargic pace and collusive ways, has hardly done
credit to the Police Department's integrity, a fact that the Government will
take note of, without institutional sheltering of police delinquents. Imagine a
police investigator, hunting for contradictions obviously to absolve the head
warder by interrogating Dr. Kapoor who had made an entry in the hospital
register and told Dr. Chitale that the prisoner had an anal rupture which could
not be self-inflicted or caused by a fall and was so serious as to require
immediate removal to Irwin Hospital, and making him say, long afterwards on
2-10-1979 by delaying the laying of the chargesheet thus:
"A prisoner named Prem Chand s/o Prehlad
was produced before me for treatment on the afternoon of Sunday 26th August,
1979. He was brought by some warder.
He was complaining of bleeding from boils on
the buttocks. This was also told by the warder who brought him.
He was given the required treatment as he was
kept under observation on his request.
Next day during the ward rounds when I
examined him, he was having tears of anus and bleeding. On inquiring he told
that this has happened due to forced insertion of as stick into his anus.
Then he was referred to Irwin Hospital for
V. K Kapoor 2-10-79" Can human nature be
such rubber ? More than the probity of the investigation and the veracity of
the doctor are at stake-hope in human integrity without which human dignity
will be the first casualty.
These observations are not impressionistic
but we leave it at that since our primary purpose is to protect the person of
the prisoner, not to prosecute the offender. We do nat wish to prejudice that
process. Regrettably, the 'hearsay' affidavit of the Under Secretary (Home),
Delhi Administration, Shri Nathu Ram, blinks at the jail vices and merely
dresses up the official version without so much as an inquisitorial audit of
the lurid happenings in a premier correctional institution of the nation. We
deplore the indifferent affiants omnibus approval of every official conduct,
whereas we should, instead have expected Government, which sincerely swears by
human rights and whose political echelons in succession, over the decades, are
not strangers to the actualities in these detention campuses to have put 567
aside the tendency to white-wash every action with an official flavour. A Where
human rights are at stake prestige has no place.
After the prisoner was subjected to brutal
hurt he was removed to the jail hospital and later to the Irwin Hospital but on
his re-transfer he was neglected; but we do not pursue the identity of the
culprit or the crime or the treatment since a police investigation is under
Nevertheless, we cannot but remark that
whatever damage might have been done upto now, .. second investigation by a
C.B.I. Officer is justified, if truth has been suppressed.
Dr. Chitale pointed out certain poignant
facts such as the prisoner himself having been pressured into statements
contrary to the case of anal infliction. We do not make comments on them
although we are unhappy at the way the business of investigation has been done.
Indeed, the potential for oblique mutual help between the police and the prison
staff makes Jail offences by jail officials undetectable; and so, to obviate
this possibility, the C.B.I. may well be entrusted, as a regular practice, with
such cases The prisoner being a person, we cannot write him off.
The alleged offender, Warder Maggar Singh,
may be left aside for a while. There are other aspects of the torture which
demand deeper probe and panacea. The prisoner's explanation for the anal
rupture is stated to be an unfulfilled demand for money, allegedly a general
this shows, if true, that bribery, at the
point of barbarity, is a flourishing trade within the house of punishment
itself. How stern should the sentence be for such official criminals and how
diligent should the State be to stamp out this wicked temptation ! If you want
to end prison delinquencies you must abolish the motivations and opportunities.
The counter-case, if we may so call it, of
the Warder as disclosed in the Superintendents report, is equally disturbing,
On 25-8-79 evening life prisoner Prem Chand
S/o Sh. Prahlad was produced before the Deputy Superintendent for talking
Mandrix tablets. As he was in state of intoxication because of taking Mandrix
tablets which he admitted before the Deputy Superintendent, he was kept in a
cell pending orders of the Superintendent. Central Jail. He was taken to the
jail hospital the next day i.e. On 26-8-79 on a report from the above said
prisoner as he had pain in his anus and was bleeding. The prisoner remained
admitted into the jail hospital upto 27-8-79, 2 p.m. when the Dr. V.
K. Kapoor, Medical officer, recommended for
the shifting of this prisoner to the Irwin Hospital with the report mentioned
in the petition.
568 The prisoner Prem Chand was shifted
accordingly by Shri Bachan Singh, Assistant Superintendent on duty on 27-8- 79.
The undersigned was informed that a case u/s 385 IPC had been registered
against warder Maggar Singh in- charge of the ward No. 11 i.e. 40 cells with
the police station Janak puri and investigation had started in this case. The
result of the investigation is still awaited. The prisoner was, however,
received back in the jail on 29-8-79 on being discharged from the Irwin
The prisoner, Prem Chand, was kept in a
'punishment cell' which, according to counsel for the Administration, was not
as bad as a solitary cell, although Dr. Chitale says that this was similar to
the type of insulated confinement condemned as unconstitutional be this Court
in Sunil Batra's case (supra). Coming to the competing version put for ward by
the prison officials through the counter-affidavit of the Under Secretary, the
story, even if true, is strongly suggestive of a mafia-culture prevasive in the
A background of the ethos of the campus may
be gleaned from portions of the report of the Superintendent, Central Jail,
Tihar, made by him with reference to the alleged torture which is the subject
matter of this case.
A number of prisoners in the Tihar Jail are
habitual offenders, professional criminals who have been inmates of the jail
from time to time. A number of the said prisoners are rarely visited by their
relatives due to the fact that they do not want to associate with such persons.
It has been seen that such prisoners are mainly visited by other professionals
or habitual offenders in the field with whom they have had former
associations.... It has been noticed these types of prisoners have been able to
develop a certain report with some of the lower staff in the jail namely Head
Warders, Warders etc. and obtain certain facilities illegally including
smuggling of numbers of items, i.e. drugs etc. for their use. It may also be
submitted that to check smuggling of narcotic drugs against prisoners who
indulge in such activities 30 cases of narcotic offences were get registered
against the prisoners with the Janakpuri Police Station during this year....
That 95 prisoners were transferred from the jail to Haryana due to
administrative reasons which include indiscipline and violation of jail
regulations by them and otherwise derogatory behaviour during the last year.
This year also about 22 case have been recommended by Superintendent, Jail for
In para 568(b) and the note thereunder of the
569 Jail Manual, the habituals are required to be kept separate from the casual
prisoners but due to non- availability, of any other jail in Delhi they are
being kept in Tihar Jail, which requires a lot or vigilance on the part of the
jail officers. (b) 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.
To aggravate the malady, we have the fact
that a substantial number of the prisoners are under-trials who have to face
their case in court and are presumably innocent until convicted. By being sent
to Tihar Jail they are, by contamination, made criminals-a custodial perversity
which violates the test of reasonableness in Art. 19 and of fairness in Art.
21. How cruel would it be if one went to a hospital for a checkup and by being
kept along with contagious cases came home with a new disease ! We sound the
tocsin that prison reform is not a constitutional compulsion and its neglect
may lead to drastic court action.
It would appear that around 300 persons are
taken in and out daily between the prison and the courts. And when there are
political agitations. and consequent police arrests and remand to custody, the
under-trial strength swells in numbers. 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 on work, smuggle things and even resort to assaults." To sum up,
the Tihar prison is an arena of tension ,trauma, tantrums and crimes of
violence, vulgarity and corruption. And to cap it all, there occurs the contamination
of pre-trial accused with habituals and "injurious prisoners of
international gang." 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 correction ! Drug racket, alcoholism, smuggling, violence, theft,
unconstitutional punishment by way of solitary cellular life and transfers to
other jails are not uncommon. The Administration, if it does not immediately
have the horrendous situation examined by an impartial, authoritative body, and
sanitize the campus, complacent affidavits of Under Secretaries and glittering
entries from dignitaries on their casual visits, cannot help.
While the Establishment sought to produce
before the Court extracts from the Visitors' Book to show that many impartial
and distinguished persons had complimented the jail authorities on the way
managed the prison, Dr. Chitale placed before us some internal evidence 570
from the materials on record, supplemented strongly by personal observations
recorded while he was an internee in this very prison by Shri Kuldip Nayar, a
responsible journalist with no apparent motive for mendacity nor inclination
for subjectivity, in his book "In Jail". There was nothing in the
author's view which money could not buy within the recesses of the prison
campus. Giving a factual narrative, Shri Nayar
' ....... one could get as much money as one
wanted from outside-again at a price. There was a money order and mail service
that perhaps was more dependable than what the postal department could offer.
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 charge." .. ....Dharma Teja, the shipping magnate who
served his sentence in Tihar, for instance, has 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 of
using the phone.... Haridas Mundhra, a businessman 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 upto Calcutta. All this
of course, cost a lot of money. An even richer prisoner was Ram Kishan Dalmia,
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 "Babuji, 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 fixed. There was never a dispute; there
has to be the proverbial honour among thieves.' 571 One wonders whether such an
indictment made by an established A writer had inclined the Government at least
to appoint an Inquiry Commission to acquaint itself with the criminal
life-style of correctional institutions. The higher officials also have their
finger in the pie, if Nayar were veracious:
'Perhaps the way almost everyone had his cut
was most evident in our milk supply. It came in bulk to the main gate (phatak)
there, enough milk for the top officials was taken out of the cans, which were
then topped up with water. And as the cans moved to the wards, all those who
handled hem appropriated their share, again topping up with water.
Even more shocking than the corruption was
the ingenious "slave system" we found in the jail. The slaves were
buys between ten and eighteen employed as 'helpers", and there were scores
of them. They cooked, washed utensils, cleaned rooms, fetched water and did
much back breaking labour to "help" the men who were paid to do these
chores. They would be woken up before 6 a.m. to prepare the morning tea and
would be allowed to sleep around 10 p.m. after scrubbing the pots and pans-they
were herded into a ward which had no fan and no proper sanitary facilities, but
was always well lit, with many bulbs on all night, to enable a sleepy warder to
check at a glance that they were all there.
These boys were undertrial prisoners, many
had been there for eight months and at least one had been there for two years.
They were taken from one court to another to be tried under one charge or
another and kept in jail all the while. The aim was to keep them in as long as
possible, for without them the people employed to do the menial duties would
have no time to relax.
one morning I was woken up by the sobbing of
a boy, and found some other "helpers" trying to console him while a
warder stood by quite unmoved. I went up to him; his curly hair reminded me of
Raju, my younger son. The boy had been picked up the previous evening from
Defence Colony in New Delhi, kept in a police lock-up for the night and brought
to jail in the morning.' The crime of punishment is a new crime which the rule
of law must reach at, but what is touching beyond tears, even if there be but a
title of truth in the statement "In Jail," is about children being
lapped 572 up and locked up for use as bonded labour in punitive houses of
justice. The modus operandi is sensitively set down by Kuldip Nayar:
The warder explained that whenever the number
of prisoners in jail went up, the police were asked to bring in boys to help
with the chores. For the past several days, the warder said, jail authorities
had been pestering the police to get more helpers as the number of detenus had
gone up. The evening before, when the boy was buying paan (betel leaf) from a
Defence Colony shop, the police had hauled him up as a vagabond; they were
responding to the jail authorities' appeal to book more helpers.
"This is nothing new, it has always been
like this," the warder explained. Several undertrial boys later related to
me their tales of woe, how they were arrested on trumped up charges and how
they were being held in detention on one pretext or another.
We may, at this stage, go in greater detail
into the functional expansion of habeas corpus writs in the current milieu
especially because counsel on both sides have compellingly contended for an
authoritative pronouncement by this court in favour of a broader jurisdiction.
We have earlier noticed that this valuable
writ is capable of multiple uses as developed in the American Jurisdiction.
Such is the view expressed by many legal writers. In Harvard Civil Rights and
Civil Liberties Law Review, the view has been expressed that beyond the
conventional blinkers, courts have been to examine the manner in which an
inmate is held or treated during the currency of his sentence. Similar is the
thinking expressed by other writers, R. J. Sherpa in "The Law of Habeas
Corpus" (1976) Edn. Juvenal, Satires in 72 Yale Law Journal 506 (1963). In
American Jurisprudence there is a pregnant observation:
The writ is not and never has been a static,
narrow formalistic remedy. Its scope has grown to achieve its purpose-the
protection of individuals against erosion of the right to be free from wrongful
restraints on their liberty.
573 Corpus Juris, 2d, Vol. 39, page 274, para
7 strikes a similar note, away from the traditional strain. The courts in
America have, through the decisional process, brought the rule of law into the
prison system pushing back, protanto, the hands-off doctrine. In the leading
case of Coffin v.
Richard the Court of Appeal observed,
delineating the ambit and uses of the writ of habeas corpus:
The Government has the absolute right to hold
prisoners for offences against it but it also has the correlative duty to
protect them against assault or injury from any quarter . while so held. A
prisoner is entitled to the writ of habeas corpus, when, though lawfully in
custody, he is deprived of some right to which he is lawfully entitled even in
his confinement, the deprivation of which serves to make his imprisonment more
burdensome than the law allows or curtails his liberty to a greater extent than
the law permits.
When a man possesses a substantial right, the
court will be diligent in finding a way to protect it.
The fact that a person is legally in prison
does not prevent the use of habeas corpus to protect his other inherent
rights....The judge is not limited to a simple remand or discharge of the
prisoner's civil rights be respected......
It is significant that the United State
Supreme Court has even considered as suitable for habeas relief, censorship of
prisoners' mail and the ban on the use of law students to conduct interviews
with prison inmates in matters of legal relief. In Procunier v. Martinez these
two questions fell for decision and the court exercised jurisdiction even in
such an internal matter. In Johnson v. Avery a disciplinary action was
challenged by a prisoner through a writ of habeas corpus. This indicates the
extension of the nature of the writ in the American jurisdiction. Incidentally
and interestingly, there is reference to some States in the United States
experimenting with programmes of allowing senior law students to service the
penitentiaries. At a later stage, when we concretise definite directives, we
may have occasion to refer to the use of senior law students for rendering
legal aid to prisoners; and so it is worthwhile extracting a passage from
Johnson v. Avery (supra) with reference to the Kansas Law School Programme in
Prisons at Leavenworth:
The experience at Leavenworth has shown that
there have been very few attacks upon the (prison) administra- :
574 tion; that prospective frivolous
litigation has been screened out and that where the law school felt the
prisoner had a good cause of action relief was granted in a great percentage of
cases. A large part of the activity was disposing of long outstanding detainers
lodged against the inmates. In addition, the programme handles civil matters
such as domestic relations problems and compensation claims. Even where there
has been no tangible success, the fact that the inmate had someone on the
outside listen to him and analyse his problems had a most beneficial effect. We
think that these programmes have been beneficial not only to the inmates but to
the students, the staff and the courts.
Incidentally, the presence of law students at
the elbow of the prisoner has a preventive effect on ward and warden.
The content of our constitutional liberties
being no less, the dynamics of habeas writs they developed help the judicial
process here. Indeed. the full potential of Arts.
21, 19, 14, after Maneka Gandhi (supra), has
been unfolded by this Court in Hoskot and Batra. Today, human rights
jurisprudence in India has a constitutional status and sweep, thanks to Art. 21
so that this Magna Carta may well toll the knell of human bondage beyond civilised
The supplementary statement of the
Superintendent of the Central Jail (partly quoted earlier) hair-raising when we
find that far from rehabilitation, intensification of criminality is happening
there and the officials are part of this sub-culture. We, certainly do not wish
to generalise but do mean to highlight the facts of life behind the high walls
as demanding constitutional and administrative attention. Homage to human
rights, if it springs from the heart, calls for action. Prisons, prison staff
and prisoners-all three are in need of reformation. And this milieu apparently
is not unique to Tihar but common to many penal institutions.
It is refreshing and heartening that the
learned Solicitor General widened our vista and argued that this court, having
been seized of the problem of prisoners' fundamental freedoms and their
traumatic abridgement, should give guide-lines in this uncharted area, design
procedures and device mechanisms which will go into effective action when the
restricted yet real rights of prisoners are overtly or covertly invaded. The
jurisdiction of this court to remedy the violations of prisoners' residuary
rights was discussed at the bar, as also the package of plausible measures
which may appropriately be issued to ensure the functional success of justice
when rights are infringed by officials or fellow-prisoners. Both sides
appreciated the gravity of the jail situation, the sensitivity of security
considerations, the virginity of this 575 field of law and the necessity for
normative rules and operative monitoring within the framework of judicial
remedies. This constructive stance of counsel unusual in litigative negativity,
facilitated our resolution of the problems of jail justice, despite the touch
of jurisprudential novelty and call to judicial creativity.
We must formulate the points argued before we
proceed to state our reasoning and record our conclusions.
1. Has the court jurisdiction to consider
prisoners' grievance, not demanding release but, within the incarceratory
circumstances, complaining of ill-treatment and curtailment short of illegal
detention? Yes. We have answered it.
2. What are the broad contours of the
fundamental rights, especially Arts. 14, 19 and 21 which belong to a detainee
sentenced by Court? Here too, the ground has been covered.
3. What judicial remedies can be granted to
prevent and punish their breach and to provide access to prison justice?
4. What practicable prescriptions and
proscriptions bearing on prison practices can be drawn up by the court
consistently with the existing provisions of the Prisons Act and Rules bent to
shape to con form to Part III ?
5. What prison reform perspectives and
strategies should be adopted to strengthen, in the long run, the constitutional
mandates and human rights imperatives? The canvas was spread wide by counsel
and court and we deal with the arguments within the larger spread-out of the
case. Rulings of this court have highlighted the fact that the framers of our
Constitution have freed the powers under Art. 32 from the rigid restraints of
the traditional English writs. Flexible directives, even affirmative action
moulded to grant relief may realistically be issued and fall within its fertile
width. The jurisdictional dimension is lucently laid down by Subba Rao, J. in
This article is couched in comprehensive
phraseology and it ex facie confers a wide power on the High Courts to reach
injustice wherever it is found.
The Constitution designedly used a wide
language in describing the nature of the power, the purpose for which and the
person or authority against whom it can be exercised. It can issue writs in the
nature of prerogative writs as understood in England; but the scope of those
writs also is widened by the use of the 576 expression "nature" for
the said expression does not equate the writs that can be issued in India with
those in England, but only draws an analogy from them. That apart, High Courts
can also issue directions, orders or writs other than the prerogative writs. It
enables the High Courts to mould the reliefs to meet the peculiar and
complicated requirements of this country. Any attempt to equate the scope of
the power of the High Court under Art. 226 of the Constitution with that of the
English Courts to issue prerogative writs is to introduce the unnecessary
procedural restrictions grown over the years in a comparatively small country
like England with a unitary form of government into a vast country like India
functioning under a federal structure. Such a construction defeats the purpose
of the article itself.
Where injustice, verging on inhumanity,
emerges from hacking human rights guaranteed in Part III and the victim
beseeches the Court to intervene and relieve, this court will be a functional
futility as a constitutional instrumentality if its guns do not go into action
until the wrong is righted. The court is not a distant abstraction omnipotent
in the books but an activist institution which is the cynosure of public hope.
We hold that the court can issue writs to meet the new challenges. Lord
Scarman's similar admonition, in his English Law-The New Dimensions, is an
encouraging omen. The objection, if any, is absolute because in a prison
situation, a Constitution Bench of this Court (Batra and Sobraj) did imprison
the powers of prison officials to put an under-trial under iron fetters or
confine in solitary cells convicts with death sentences under appeal.
Once jurisdiction is granted-and we affirm in
unmistakable terms that the court has, under Art. 32 and so too under Art. 226,
a clear power and, therefore, a public duty to give relief to sentences in prison
settings-the next question is the jurisprudential backing for the play of that
jurisdiction. Here again, Batra has blazed the trail, and it binds.
Are prisoners persons? Yes, of course. To
answer in the negative is to convict the nation and the Constitution of
dehumanization and to repudiate the world legal order, which now recognises
rights of prisoners in the International Covenant of Prisoners' Rights to which
our country has signed assent. In Batra's case, this Court has rejected the
hands-off doctrine and it has been ruled that fundamental n lights do not flee
the person as he enters the prison although they may suffer shrinkage
necessitated by incarceration. Our constitutional 577 culture has now
crystalized in favour of prison justice and judicial jurisdiction.
The jurisdictional reach and range of this
court's writ to hold prison caprice and cruelty in constitutional leash is in
contentable, but teasing intrusion into administrative discretion is legal
anathema absent breaches of constitutional rights or prescribed procedures.
The U.S. Supreme Court, in like situations,
has spoken firmly and 'humanistically, and these observations have the tacit
approval of our Court in Batra's case. Justice Douglas put it thus.
Prisoners are still 'persons' entitled to all
constitutional rights unless their liberty has been constitutionally curtailed
by procedures that satisfy all the requirements of due process.
Justice Marshal strongly seconded the view:
I have previously stated my view that a
prisoner does not shed his basic constitutional rights at the prison gate, and
I fully support the court's holding that the interest of inmates in freedom
from-imposition of serious discipline is a 'liberty' entitled to due process
We, therefore, affirm that where the rights
of a prisoner, either under the Constitution or under other law, are violated
the writ power of the court can and should run to his rescue. There is a
warrant for this vigil. The court process casts the convict into the prison
system and the deprivation of his freedom is not a blind penitentiary
affliction but a belighted institutionalisation geared to a social good. 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
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 578 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 injunction.
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 res ponds
to the purposes of the sentence. If it does not, the sentencing court could
arguably have the authority to demand compliance with 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
and fair'. Bhagwati J. in Maneka Gandhi observed.
The principle of reasonableness, which
legally as well as philosophically, is an essential element of equality or non
arbitrariness pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the test of reasonableness in
order to be in conformity with Art. 14. It must be "right and just and
fair" and not arbitrary, fanciful or oppressive; otherwise it would be no
procedure at all and the requirement of Article 21 would not be satisfied.
Hoskot applied the rule in Maneka Gandhi
(supra) to a prison setting and held that "one component of fair procedure
is natural justice". Thus it is now clear law that a prisoner wears the
armour of basic freedom even behind bars and that on breach thereof by lawless
officials the law will respond to his distress signals through 'writ' aid. The
Indian human has a constant companion-the court armed with the Constitution.
The weapon is 'habeas', the power is Part III and the projectile is Batra, 579
No iron curtain can be drawn between the prisoner and the Constitution.
It is, therefore, the court's concern,
implicit in the power to deprive the sentences of his personal liberty, to
ensure that no more and no less than is warranted by the sentence happens. If
the prisoner breaks down because of mental torture, psychic pressure or
physical R; infliction beyond the licit limits of lawful imprisonment the
Prison Administration shall be liable for the excess. On the contrary, if an
influential convict is able to buy advantages and liberties to avoid or water
down the deprivation implied in the. sentence the Prison Establishment will be
called to order For such adulteration or dilution of Court sentences by executive
palliation, if unwarranted by law. One of us, in Batra observed:
Suffice it to say that, so long as judges are
invigilators and enforcers of constitutionality and performance auditors of
legality, and convicts serve terms in that grim microcosm called prison by the
mandate of the courts, a continuing institutional responsibility vests in the
system to monitor in the incarceratory process and prevent security 'excesses'
Jailors are bound by the rule of law and cannot inflict supplementary sentence
under disguises or defeat the primary purposes of imprisonment.
The upshot of this discussion is but this.
The Court has power and responsibility to intervene and protect the prisoner
against mayhem, crude or subtle, and may use habeas corpus for enforcing
imprison humanism and forbiddance of harsher restraints and heavier severities
than the sentence carries. We hold these propositions to be self-evident in our
constitutional order and is supported by authority, if need be. Therefore, we
issue the writ to the Lt. Governor and the Superintendent of the Central Jail
that the prisoner, Prem Chand, shall not be subjected to physical manhandling
by any jail official, that the shameful and painful torture to which he has
been subjected-a blot on Government's claim to protect human rights-shall be
ended and the wound on his person given proper medical care and treatment. The
Central Government will, we are sure, direct its Jail staff not show too
pachydermic a disposition for a democratic government. For example, specific
guidelines before punishing a prisoner had been given in Batra's case and yet
the prisoner Prem Chand has been lodged in the punishment cell, which is almost
the same as a solitary cell, with cavalier disregard for procedural safeguards.
Merely to plead that many prisoners are
'habituals' is no ground for habitual 580 violation of law by officials. We
direct that Prem Chand be released from the punishment cell and shall not be
subjected to such severity until fair procedure is complied with.
The chronic callousness of the Prison System
to- the humane demands of the Constitution, despite the fact that many
ministers over many decades in many States have known the unbroken tradition of
prison sub-culture and despite prison diaries of national figures from
Jawaharlal Nehru to Jay Prakash Narain, has made court and counsel benignly
turn the judicial focus on the future so that further mischief may not be
suffered in incarceration. There is little doubt that barbarities like bar
betters and hand-cuffs were recklessly being practised either on account of
ignorant unconscionableness or willful viciousness in several detention camps.
Many of the victims are poor, mute, illiterate, desperate and destitute and too
distant from the law to be aware of their rights or ask for access to justice,
especially when the running tension of the prison and the grisly potential for
zoological reprisals stare them in the face. So it is for the court to harken
when humanity calls, without waiting for particular petitions. Like class
action, class remedies have pro bono value.
The court-the learned Solicitor General
underscored this constructive approach-must not wait for a stray petition from
some weeping inmate and give the little person a little relief in the little
case but give the nation, its governments, prison establishments and
correctional departments, needed guidance and also fill with hope the hearts of
those who cherish human rights that the courts are, after all, sentinels on the
qui vive. Law is what law does and court, if anything, are constitutional in
Dr. Chitale, naturally, joined this moving
demand. We do think that there are many, drawn from the class of penury, who
suffer more privations than their sentences justify.
Ralph Ellison's picture of the American Black
has relevance for the prisoner here:
I am an invisible man....I am a man of
substance, of flesh and bone, fibre an liquids-and I might even be said to
possess a mind. I am invisible, understand, simply because people refuse to see
me .... When they approach me they see only my surroundings, themselves, or
figments of their imagination-indeed, everything and anything except me.
The invisibility to which I refer occurs
because of a peculiar disposition of the eyes of those with whom I come in
contact. A matter of construction of their inner eyes, 581 those eyes with
which they look through their physical eyes .. 4 upon reality....You wonder
whether you are not simply a phantom in other people's minds....You ache with
the need to convince yourself that you do exist in the real world, that you're
a part of all the sound and anguish, and you strike out with your fists, you
curse and you swear to make them recognise you.
And, alas, it is seldom successful.
In a culture of Antyodaya, the court must
rescue the weakest by preemptive guidance without driving parties to post facto
litigation. In law as in medicine, prevention is better than cure, a rule
jurisprudents have not sufficiently developed, and so we accede to the request
of counsel and proceed to discuss the normative side of prison justice. C
Before we begin this chapter we might as well set down what the learned
Solicitor General stressed viz. that the detailed guidelines set out in the
separate opinion in Batra's case (page 488 to 493) are the same as are implicit
in the judgment of Desai J. speaking for the other Judges and this position
should be re-emphasised by this court here so as to avoid misconception. Desai
J. has stated Justice Krishna Iyer has delivered an elaborate judgment which
deals with important issues raised before us at great length and with great
care and concern. We have given a separate opinion, not because we differ with
him on fundamentals, but because we thought it necessary to express our views
on certain aspects of the questions canvassed before us Likewise, in the
separate judgment, a similar statement is made:
I am aware that a splendid condensation of
the answers to the core questions has been presented by my learned brother
Desai, J and I endorse the conclusion.
A close perusal shows that both the judgments
in Batra's case lay down the same rule and the elaborate guidelines in the
first opinion are a necessary proliferation of the law expounded in the second
judgment in the case. We hold, agreeing with both counsel, that the detailed
prescriptions in the separate opinion in sunil Batra (p. 488 to 493) is correct
law and binds the penal institutions in the country. We agree with these
guidelines and express ourselves to that effect since the core question raised in
the present case and the cardinal principles we have accepted lead to the same
At the outset, we notice the widespread
prevalence of legal illiteracy even among lawyers about the rights of
prisoners. Access to law postulates awareness of law and activist awareness of
legal rights 582 in the condition for seeking court justice. So the first need
in the Juristic twilight is for the State to produce and update a handbook on
Prison Justice, lucid, legible for the lay, accurate, comprehensive and, above
all, practical in meeting the felt necessities and daily problems of prison
life. The Indian Bar has, as part of its judicare tryst as a special
responsibility to assist the State in this behalf. A useful handbook prepared
by the American Civil Liberties Union was handed upto us by Dr. Chitale titled
"The Rights of Prisoners". Law in the books and in the courts is of
no help unless it reaches the prisoner in under standable language and
available form. We, therefore, draw the .
attention of the State to the need to get
ready Prisoner's Handbook in the regional language and make them freely
available to the in mates. To know the law is the first step to be free from
fear of unlaw.
Prisoners are peculiarly and doubly
handicapped. For one thing, most prisoners belong to the weaker segment, in
poverty, literacy, social station and the like. Secondly, the prison house is a
walled-off world which is incommunicado for the human world, with the result
that the bonded inmates are invisible, their voices inaudible, their injustices
unheeded. So it is imperative, as implicit in Art. 21 that life or liberty
shall not be kept in suspended animation or congealed into animal existence
without the freshing flow of air, procedure. 'The meaning of 'life' given by Field
J., approved in Kharak Singh' and Maneka Gandhi bears exception:
Something more than mere animal existence.
The inhibition against its deprivation extended 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 Therefore, inside prisons are persons and
their personhood, if crippled by law-keepers turning law-breakers, shall be
forbidden by the Writ of this Court from such wrong doing. Fair procedure, in
dealing with prisoners, therefor, calls for another dimensions of access to
law-provision, within easy reach, of the law which limits liberty to persons
who are prevented from moving out of prison gates.
A handbook meets the logistics of the law in
field. Of course, the prison staff also suffer from the pathology of
misinformation or non-education about rights and limitations and this ignoratia
juris 583 situation leads to insensitivity to human rights and a test in the
hand-book of prison law must be a minimum for recruitment. The peril to prison
rights is from the uninstructed personnel, apart from the anticultural ethos which
permeates. It behoves Government to insist on the professional requirement, for
warders and wardens, of a hearty familiarity with the basics of Prison Law.
Rights jurisprudence is important but becomes
an abstraction in the absence of remedial jurisprudence. Law is not an
omnipotence in the sky but a loaded gun which, when triggered by trained men
with ballistic skill, strikes the offending bull's eye. We have made it clear .
' that no prisoner can be personally subjected to deprivations not necessitated
by the fact of incarceration and the sentence of court. All other freedoms
belong to him to read and write, to exercise and recreation, to meditation and
chant, to creative comforts like protection from extreme cold and heat, to
freedom from indignities like compulsory nudity, forced sodomy and other
unbearable vulgarity, to movement within the prison campus subject to
requirements of discipline and security, to the minimal joys of self-
expression, to acquire skills and techniques and all other fundamental rights
tailored to the limitations of imprisonment.
Chandrachud J, long ago, spelt out the
position and we affirm it:
"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 by its own force the deprivation of fundamental
freedoms like the right to move freely throughout the territory of India 11 or
the right to 'practise' 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
Likewise, even a convict is entitled G 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." We think it proper to suggest that in our country of
past colonial subjection and consequent trepidation in life, publicity
officially is 584 necessary for rights to be appreciated even by the
beneficiaries. Therefore, large notice boards displaying the rights and
responsibilities on prisoners may be hung up in prominent places within the
prison in the language of the people. We are dealing with the mechanics of
bringing the law within the wakeful ken of the affected persons.
Sec. 61 of the Prisons Act, simplied
imaginatively leads to the same result. That section reads:
"Copies of rules, under sections 59 and
60 so far as they affect the government of prisons, shall be exhibited, both in
English and in the Vernacular, in some place to which all persons employed
within a prison have access." We think it right to hold that copies of the
Prison Manual shall be kept within ready reach of prisoners.
Darkness never does anyone any good and light
never any harm.
Perhaps, the most important right of a
prisoner is to the integrity of his physical person and mental personality.
This Court in Batra's case has referred to
the international wave of torture of prisoners found in an article entitled
'Minds Behind Bars'. That heightens our anxiety to solve the issue of
The problem of law, when it is called upon to
defend persons hidden by the law, is to evolve a positive culture and higher
consciousness and preventive mechanisms, sensitized strategies and humanist
agencies which will bring healing balm to bleeding hearts. Indeed, counsel on
both sides carefully endeavoured to help the Court to evolve remedial processes
and personnel within the framework of the Prisons Act and the parameters of the
Inflictions may take many protean forms,
apart from physical assaults. Pushing the prisoner into a solitary cell, denial
of a necessary amenity, and, more dreadful sometimes, transfer to a distant
prison where visits or society of friends or relations may be snapped,
allotment of degrading labour, assigning him to a desperate or tough gang and
the like, may be punitive ineffect. Every such affliction or abridgment is an
infraction of liberty or life in its wider sense and cannot be sustained unless
Art. 21 is satisfied. There must be a corrective legal procedure, fair and
reasonable and effective. Such infraction will be arbitrary, under Article 14,
if it is dependent on unguided discretion, unreasonable, under Art. 19 if it is
irremediable and unappealable and unfair, under Art. 21 if it violates natural
justice. The string of guidelines in Batra set out in the first judgment, which
we adopt, provides for a hearing at some stages, a review by a superior, and
early judicial consideration so that the proceedings may not 585 hop from
Caesar to Caesar. We direct strict compliance with those A norms and
institutional provisions for that purpose.
Likewise, no personal harm, whether by way of
punishment or otherwise, shall be suffered by a prisoner without affording a
preventive, or in special cases, post facto remedy before a impartial,
competent, available agency. R The Court is always ready to correct injustice
but it is no practical proposition to drive every victim to move the court for
a writ, knowing the actual hurdles and the prison realities. True,
technicalities and legal niceties are no impediment to the court entertaining
even an informal communication as a proceeding for habeas corpus if the basic
facts are found; still, the awe and distance of courts, the legalese and
mystique, keep the institution unapproachable.
More realistic is to devise a method of
taking the healing law to the injured victim. That system is best where the
remedy will rush to the injury on the slightest summons. So, within the
existing, dated legislation, new meanings must be read. Of course, new
legislation is the best solution, but when lawmakers take for too long for
social patience to suffer, as in this very case of prison reform, courts have
to make-do with interpretation and carve on wood and sculpt on stone ready at
hand and not wait for far away marble architecture. Counsel rivetted their
attention on this pragmatic engineering and jointly helped the court to
constitutionalise the Prisons Act
prescriptions. By this legal energetics they desired the court to read into
vintage provisions legal remedies.
Primari1y, the prison authority has the duty
to give effect to the court sentence. (See for e.g. SS. 15 and 16 of the
Prisoners Act, 1900). To give effect to the sentence means that it is illegal
to exceed it and so it follows that a prison official who goes beyond more
imprisonment or deprivation of locomotion and assaults or otherwise compels the
doing of things not covered by the sentence acts in violation of Art. 19.
Punishments of rigorous imprisonment oblige the inmates to do hard labour, not
harsh labour and so a, vindictive officer victimising a prisoner by forcing on
him particularly harsh and degrading jobs, violates the law's mandate. For
example, a prisoner, if forced to carry night soil, may seek a habeas writ.
'Hard labour' in s. 53 has to receive a humane meaning. A girl student or a
male weakling sentenced to rigorous imprisonment may not be forced to break
stones for nine hours a day. The prisoner cannot demand soft jobs but may
reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal
586 Section 27 (2) and (3) of the Prisons Act
27. The requisitings of this Act with respect
to the separations of prisoners are as follows:
(1) xx xx (2) in a prison where male
prisoners under the are of twenty-one arc confined, means shall be provided for
separating them altogether from the other prisoners and for separating those of
them who have arrived at the age of puberty from those who have not.
(3) unconvicted criminal prisoners shall be
kept apart from convicted criminal prisoners; and The materials we have
referred to earlier indicate slurring over this rule and its violation must be
visited with judicial correction and punishment of the jail staff.
Sex excesses and exploitative labour are the
vices adolescents are subjected to by adults. The young inmates must be
separated and freed from exploitation by adults. If Kuldip Nayar is right this
rule is in cold storage. lt is inhuman and unreasonable to throw young boys to
the sex- starved adult prisoners or to run menial jobs for the affluent or
tough prisoners. Art. 19 then intervenes and shields.
Section 29 and connected rules relating to
solitary confinement have been covered by Batra's case. But Prem Chand, in this
very case, has been sent to a 'solitary' or 'punishment' cell without heeding
the rule in Batra's regarding impost of punitive solitary confinement. We
cannot agree that the cell is not 'solitary' and wonder what sadistic delight
is derived by the warders and wardens by SUCH cruelty. Any harsh isolation from
society by long, lonely, cellular detention is penal and so must be inflicted
only consistently with fair procedure. The learned Solicitor General mentioned
that some prisoners, for their own safety, may desire segregation. In such
cases, written consent and immediate report to higher authority are the least,
if abuse is to be tabooed.
Visit to prisoners by family and friends are
a solace in insulation; and only a dehumanised system can derive vicarious
delight in depriving prison inmates of this humane amenity. Subject, of course,
to search and discipline and other security criteria, the right to society of
fellow-men, parents and other family members cannot be denied in the light of
Art. 19 and its sweep. Moreover the whole habilitative purpose of sentencing is
to soften, not to harden, and this will be promo- 587 ted by more such
meetings. A sullen, forlorn prisoner is a dangerous criminal in the making and
the prison is the factory! Sheldon Krantz rightly remarks:
In 1973, the National Advisory Commission
argued that prisoners should have a "right" to visitation.
Task Force Report, Corrections (1973) at 66.
It also argued that ' correctional officials should not merely tolerate
visiting but should encourage it, particularly by families. Although the
Commission recognised that regulations were necessary to contend with space
problems and with security concerns, it proposed that priority be given to
making visiting areas pleasant and unobtrusive. It also urged that corrections
officials should not eavesdrop on conversations or otherwise interfere with the
participants' privacy. Thus, although there may be current limitations on the
possible use of the Constitution on visitation by family and friends, public
policy should dictate substantial improvements in this area, in any event.
We see no reason why the right to be visited
under reasonable restrictions, should not claim current constitutional status.
We hold, t subject to considerations of security and discipline, that liberal
visits by family members, close friends and legitimate callers, are part of the
r prisoners' kit of rights and shall be respected.
Parole, again, is a subject which is as yet
unsatisfactory and arbitrary but we are not called upon to explore that
constitutional area and defer it. Likewise, to fetter prisoners in iron is an
inhumanity unjustified save where safe custody is otherwise impossible. The
routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal
of human dignity and social justice. And yet this unconstitutionally is
heartlessly popular in many penitentiaries so much so a penitent law must
proscribe its use in any but the gravest situation.
These rights and safeguards need a machinery.
The far internal invigilation and independent oversight cannot be
overemphasised. Prisoners' rights and prison wrongs are a challenge to remedial
Krantz, in his book, (supra) notes:
To respond to the need for effective
grievance procedures will probably require both the ceation of internal pro-
588 grams (formal complaint procedures) and programs involving
"outsiders" (ombudsmen, citizens investigative committees, mediators,
So, apart from judicial review for prisoners'
rights and conditions of confinement, we have to fabricate instant
administrative grievance procedures.
Indeed, a new chapter of offences carrying
severe punishments when prison officials become delinquents is an urgent item
on the agenda of prison reform; and lodging of complaints of such offences
together with investigation and trial by independent agencies must also find a
place in such a scheme. We are dealing with a morbid world where sun and light
are banished and crime has neurotic dimensions.
Special situations need special solutions.
We reach the most critical phase of counsel's
submissions viz., the legal fabrication and engineering of a remedial machinery
within the fearless reach of the weakest of victims and worked with
independence, accessibility and power to review and punish. Prison power,
absent judicial watch tower, may tend towards torture.
The Prisons Act and Rules need revision if a
constitutionally and culturally congruous code is to be fashioned. The model
jail manual, we are unhappy to say and concur in this view with the learned
Solicitor General, is far from a model and is, perhaps, a product of prison
officials insufficiently instructed in the imperatives of the Constitution and un-awakened
to the new hues of human rights. We accept, for the nonce, the suggestion of
the Solicitor General that within the existing statutory framework the
requirements of constitutionalism nay be read.
He heavily relies on the need for a judicial
agency whose presence, direct or by delegate, within the prison walls will deal
with grievances. For this purpose, he relies on the Board of Visitors, their
powers and duties, as a functional substitute for a Prison ombudsman. A
controllerate is the desideratum for in situ reception and redressal or
After all, the daily happenings, when they
hurt harshly, have to be arrested forthwith, especially when it is the prison
guards and the head warders who brush with the prison inmates. Their behaviour
often causes friction and fear but when their doings are impeached, the
institutional defence mechanism tends to protect them from top to bottom.
So much so, injustice escapes punishment.
In this context it is apt to quote David
589 The present system puts absolute
discretion and day-to-day power over every aspect of a prisoner's life in their
hands. It is this part of prison life which causes the deepest resentment among
prisoners for, to a large extent, the manner in which an inmate is treated by
the guards determines the severity of conditions he will have to endure. It is
a doub1e irony that the lower the level of authority in prison (from warden on
down to guard) the greater tho discretion that is vested in the prison official
and the less willing the courts are to review their decisions. 'Thus, whether
it be a request for medical treatment, the right to go to the yard of prison
library, or the potentially more serious matter of prison discipline and
punishment, the guard of the block holds ultimate power over the prisoner.
Complete discretion in the context of prison life where no remedies exist to
correct it, can be catastrophic, Judge Sobeloff has put it bluntly:
In fact, prison guards may be more vulnerable
to the corrupting influence of unchecked authority than most people. It is well
known that prisons are operated on minimum budgets and that poor salaries and
working conditions make it difficult to attract high-calibre personnel.
Moreover, the "training" of the officers in dealing with obstreperous
prisoners is but a euphemism in most states. George A. Ellis quotes a
You cannot rehabilitate a man through
brutality and disrespect...If you treat a man like an animal, then you must
expect him to act like one. For every action, there is a reaction...And in
order for an inmate, to act like a human being you must trust him as such.. You
can't spit in his face and expect him to smile and-say thank you.
The institution and composition of the Board
of Visitors comes in handy and has statutory sanction. The visitatiorial power
is wide the panel of visitors includes judicial officers and such situation can
be pressed into service legally to fulfil the constitutional needs. Para 47
read with para 53-A sets out the structure of the Board Para 47(b) to (d)
includes District & Sessions Judges, District Magistrates and
Sub-Divisional Magistrates among the members. The functions of visitors are
enumerated in para 53, and 53-B and they include (a) 590 inspect the barracks,
cells, wards workshed and other buildings of the jail generally and the cooked
food; (b) ascertain whether considerations of health, cleanliness, and security
are. attended to, whether proper management and discipline are maintained in
every respect, and whether any prisoner is illegally detained, or is detained
for an undue length of time, while awaiting trial; (c) examine jail registers
and records; (d) hear, attend to all representations and petitions made, by or
on behalf of prisoners; and (e) direct, if deemed advisable, that any such
representation or petitions be forwarded to Government.
In the sensitive area of prison justice, the
judicial members have special responsibilities and they must act as wholly
independent overseers and not as ceremonial panelists. The judges are guardians
of prisoners' rights because they have a duty to secure the execution of the
sentences without excesses and to sustain the personal liberties of prisoners
without violence on or violation of the inmates' personality. Moreover, when a
wrong is done inside jail the judicial visitor is virtually a peripatetic
tribunal and sentinel, at once intramural and extra-mural,- observer, receiver
and adjudicator of grievance.
What then. are prisoner Prem Chands' rights,
in the specific set t ng of this case, where the complaint is that a jail
warder, for pernicious purposes, inflicted physical torture ? The Punjab Prison
Manual clearly lays down the duties of District Magistrates with reference to
Para 41 (l) and (3) read thus:
41. (l) It shall be the duty of the
Magistrate of the district from time to time to visit and inspect jails situate
within the limits of his district and to satisfy himself that the provisions of
the Prisons Act,
1894, and of all rules, regulations, directions and orders made or issued
thereunder applicable to such jail, are duly observed and enforced.
xx xx xx (3) A record of the result of each
visit and inspection made, shall be entered in a register to be maintained by
the Superintendent for the purpose.
Para 42 is also relevant:
42. In the absence of the Magistrate of the
district from headquarters, or in the event of that officer being at any time
unable from any cause to visit the jail in the manner in these rules prescribed
in that behalf, he shall depute a Magistrate 591 subordinate to him who is
available for the duty, to visit and A inspect the jail on his behalf. Any
officer so deputed may, subject to the control of the Magistrate of the
district. exercise all or any of the powers by the Prisons Act, 1894, or these
rules, conferred upon the Magistrate of the district.
Paragraph 44 clothes the District Magistrate
with powers and makes his orders liable to be obeyed.
44. (1) The orders passed under sub-section
(2) of section l of the Prisons Act, 1894, should, except in emergent cases in
which immediate action is, in the opinion of such Magistrate necessary, be so
expressed that the Superintendent may have time to refer (if he thinks
necessary) to the Inspector-General before taking action thereon.
(2) All orders issued by the Magistrate of
the district shall, if expressed in terms requiring immediate compliance, be
forthwith obeyed and a report made, as prescribed in the said sub-section, to
the Inspector-General. D We understands these provision to cover the ground of
reception of grievance from prisoners and issuance of orders thereon after
prompt enquiry. The District Magistrate must remember that in this capacity he
is a judicial officer and not an executive head and must function as such
independently of the prison executive. To make prisoners' rights in
correctional institutions viable, we direct the District Magistrate concerned
to inspect the jails in his district once every week receive complaints from
individual prisoners and enquire into them immediately. If he is too
preoccupied with urgent work, para graph 42 enables him to depute a magistrate
subordinate to him to visit and inspect the jail. What is important is that he
should meet the prisoners separately if they have grievances. The presence of
warders or officials will be inhibitive and must be avoided. He must ensure
that, his enquiry is confidential although subject to natural justice and does
not lead to reprisals by jail officials. The rule speaks of the record of the
result of each visit and inspection. This empowers him to enquire and pass
orders. All orders issued by him shall be immediately complied with since
obedience is obligated by para 44(2). In the event of non-compliance he should
immediately inform Government about such disobedience and advise the prisoner
to forward his complaint to the High Court under Art. 226 together with a copy
of his own report to help the High Court exercise its habeas corpus power.
Indeed, it will be practical, as suggested by
the learned Solicitor General, if the District Magistrate keeps a grievance box
in each 592 ward to which free access shall be afforded to every inmate.
It should be kept locked and sealed by him
and on his periodical visit, he alone, or his surrogate, should open the box,
find out the grievances, investigate their merits and take remedial action, it
Chapter V of the Manual deals with visitors
who are an important component of jail management. Para 47 specially mentions
District & Sessions Judges, District Magistrates, Sub-Divisional
Magistrates and Superintendent of Police as members of the Board of Visitors.
In fact, Sessions Judges arc required to visit the jails periodically-the
District Magistrates and Sub Divisional Magistrates and magistrates subordinate
to them and others appointed by them in this behalf are to visit jails in their
jurisdiction once a week under the existing Rule. We direct, in implementation
of the constitutional obligation we have already discussed at length to
safeguard prisoners' fundamental rights, that the Sessions Judges and District
Magistrates or other subordinates nominated by them shall visit jails once a
week in their visitorial functions.
Para 49 has strategic significance and may be
49. (1) Any official visitor may examine all
or any of the books, papers and records of any department of, and may interview
any prisoner confined in the jail.
(2) It shall be the duty of every official
visitor to satisfy himself that the provisions of the Prisons Act, 1894, and of
the rules, regulations, orders and directions made or issued J there under, are
duly observed, and to hear and bring to notice any complaint or representation
made to him by any prisoner.
We understand this provision to mean that the
Sessions Judge, District Magistrate or their nominees shall hear complaints,
examine all documents, take evidence, interview prisoners and check to see if
there is deviance, disobedience, delinquency or the like which infringes upon
the rights of prisoners. They have a duty "to hear and bring to notice any
complaint or representation made to him by any prisoner". Nothing clearer
is needed to empower these judicial officers to investigate and adjudicate upon
grievances. We direct the Sessions Judges concerned, under his lock and seal,
to keep a requisite number of grievance boxes in the prison and give necessary
directions to The Superintendent to see that free access is afforded to put in
complaints of encroachments, injuries or torture by any prisoner, where he
needs remedial action. Such boxes shall hot be tampered with by any one 593 and
shall be opened only under the authority of the Sessions Judge. We need hardly
emphasise the utmost vigilance and authority that the Sessions Judge must
sensitively exercise in this situation since prisoner's personal liberty
depends, in this undetectable campus upon his awareness, activism, adjudication
and enforcement. Constitutional rights shall not be emasculated by the
insouciance of judicial officers.
The prison authorities shall not, in any
manner, obstruct or non-cooperate with reception or enquiry into the complaints
otherwise, prompt punitive action must follow the High Court or the Supreme
Court must be apprised of the grievance so that habeas corpus may issue after
Para 53 is important in this context and we
reproduce it below:
53. All visitors shall be afforded every
facility for observing the state of the jail, and the management thereof, and
shall be allowed access under proper regulations, to all parts of the jail and
to every prisoner confined therein.
Every visitor should have the power to call
for and inspects any book or other record in the jail unless the
Superintendent, for reasons to be recorded in writing, declines on the ground
that its production is undesirable. Similarly, every visitor should have the
right to see any prisoner and to put any questions to him out of the hearing of
any jail officer. E There should be one visitor's book for both classes of
visitors, their remarks should in both cases be forwarded to the Inspector
General who should pass such orders as he thinks necessary, and a copy of the
Inspector-General's order should be sent to the visitor concerned.
Paras 53-B and 53-D are not only
supplementary but procedurally vital, being protective provisions from the
stand-point of prisoners. We except them here for double emphasis although
adverted to earlier:
53-B. All visitors, official and
non-official, at every visit, shall- (a) inspect the barracks, cells, wards,
workshed and other buildings of the jail generally and cooked food;
(b) ascertain whether considerations of
health, cleanliness, and security are attended to, whether proper management
and discipline are maintained in every respect, and whether any prisoner is
illegally detrained, 594 Or is detained for an undue length of time, while
(c) examine jail registers and records;
(d) hear, attend to all representations and
petitions made, by or on behalf of prisoners;
and (e) direct, if deemed advisable, that any
such representations or petitions be forwarded to Government.
53-D. No prisoner shall be punished for any
statement made by him to a visitor unless an enquiry made by a Magistrate
results in a finding that it is false.
We hope-indeed, we direct-the judicial and
other official visitors to live upto the expectations of these two rules and
strictly implement their mandate. Para 54 is also part of this package of
visitatorial provisions with invigilatory relevance. We expect compliance with
these provisions and if the situation demands it, report to the High Court for
action in the case of any violation of any fundamental right of a prisoner.
The long journey through jail law territory
proves that a big void exists in legal remedies for prisoner injustices and so
constitutional mandates can become living companions of banished humans only if
non-traditional procedures, duly oriented personnel and realistic reliefs meet
the functional challenge. Broadly speaking, habeas corpus powers and
administrative measures are the pillars of prisoners' rights. The former is
invaluable and inviolable, but for an illiterate, timorous, indigent inmate
community judicial remedies remain frozen. Even so, this constitutional power
must discard formalities, dispense with full particulars and demand of the
detainer all facts to decide if humane and fair treatment prevails,
constitutionally sufficient and comporting with the minimum international
standards for treatment of prisoners. Publicity within the prison community of
court rulings in this area will go a long way to restore the morale of inmates
and, hopefully, of the warders. So we direct the Delhi Administration to reach,
in Hindi, the essentials of this ruling to the ken of the jail people.
The stress that we lay is on the need of the
Court to be dynamic and diversified in meeting out remedies to prisoners. Not
merely the contempt power but also the power to create ad hoc, and use the
services of, officers of justice must be brought into play. In this very case,
Dr. Chitale, as amicus curiae, was so authorised, with satisfactory results.
American juristic thought has considered similar action: by courts using 595
Masters-Primarily factfinders for the court;
Receivers-Primarily hold, manage, or
"Special" Masters-responsible for
multiple functions such as fashioning a plan and assisting in its
Monitors-responsible for observing the
implementation process and reporting to the court; and Ombudsmen-responsible
for hearing inmate complaints and grievances, conducting investigations and
making recommendations to the court.
Courts which have utilised some of these
special officers including; Hamilton v Schiro, 388 F. Supp. 1016 (E.D.La.
1970); and, Jackson v. Hendrick 321 A. 2d 603 (Pa. 1974) (Special Masters);
Wayne County Bd. Of Comm'rs., Civ. Action 173271 (Cir. Ct. Of Wayne City.,
Nich., 1972) (Monitor); and, Morales v. Turman, 364 F. Suppl. 166 E.D. Tex
The use of special judicial officers, like
the use of the contempt power, holds considerable promise for assisting courts
in enforcing judicial orders.
Hopefully, their use will be expanded and
refined over time.
These measures are needed since the condition
The situation in Tihar Jail is a reflection
of crime explosion, judicial slow-motion and mechanical police action coupled
with unscientific negativity and expensive futility of the Prison
Administration. The Superintendent wails in court that the conditions are
(i) Huge overcrowding in the jail. Normal
population of the jail remains between 2300- 2500 against 1273 sanctioned
(ii) No accommodation for proper
classification for undertrials, females, habituals, casuals, juveniles,
political prisoners etc. etc.
(iii) Untrained staff of the Assistant
Superintendents. Assistant Superintendents are posted from other various
departments of Delhi Admn. viz. Sales Tax, Employment, Revenue, Civil Supplies
(iv) Untrained mostly the warders guard and
their being non-transferable.
596 (v) A long distance from the courts of
the jail and production of a large number of undertrial prisoners roughly
between 250-300 daily and their receiving back into the jail in the evening.
(vi) The population of the jail having a
large number of drugs addicts, habitual pickpockets having regular gangs
outside to lookafter their interests legal and illegal both from outside.
Other jails may compete with Tihar to bear
the palm in bad treatment and so the problem is pan-Indian. That is why we have
been persuaded by the learned Solicitor General to adventure into this
undiscovered territory. The Indian Bar, and may be, the Bar Council of India
and the academic community, must aid the court and country in this operation
Prison Justice. In a democracy, a wrong to someone is a wrong to everyone and
an unpunished criminal makes society vicariously guilty. This larger
perspective validates our decisional range.
Before we crystalise the directions we issue
one paramount thought must be expressed. The goal of imprisonment is not only
punitive but restorative, to make an offender a non-offender. In Batra's case
this desideratum was stated and it is our constitutional law, now implicit in
Art. 19 itself. Rehabilitation is a prized purpose of prison 'hospitalization'.
A criminal must be cured and cruelty is not curative even as poking a bleeding
wound is not healing.
Social justice and social defence-the
sanction behind prison deprivation-ask for enlightened habilitative procedures.
A learned writer has said:
The only way that we will ever have prisons
that operate with a substantial degree of justice and fairness is when all
concerned with that prison-staff and prisoners alike-share in a meaningful way
the decision-making process, share the making of rule and their enforcement.
This should not mean three "snitches" appointed by the warden to be
an "inmate advisory committee". However, if we are to instill in
people a respect for the democratic process, which is now the free world
attempts to live, we are not achieving that by forcing people to live in the
most etalitarian institution that we have in our society.
Thus, ways must be developed to involve
prisoners in the process of making decision that affect every aspect of their
life in the prison.
The Standard Minimum Rules, put out by United
Nations agencies also accent on socialisation of prisoners and social defense:
57. Imprisonment and other measures which
result in cutting off an offender from the outside world are afflictive by the
very fact of taking from the person the right of self-determination by
depriving him of his liberty. Therefore the prison system shall not except as
incidental to justifiable segregation or the maintenance of discipline,
aggravate the suffering inherent in such a situation.
58. The purpose of justification of a
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
59. To this end, the institution should
utilize all the remedial, educational, moral, spiritual and other forces and
forms of assistance which are appropriate and available, and should seek to
apply them according to the individual treatment needs of the prisoners.
Prison-processed rehabilitation has been
singularly unsuccessful in the West and the recidivism rate in our country also
bears similar testimony: To get tough, to create more tension, to inflict, more
cruel E; punishment, is to promote more stress, more criminality, more
desperate beastliness and is self-defeating though soothing to sadists.
Hallock, a professor at the University of Wisconsin says:
The stresses that lead to mental illness are
often the same stresses that lead to crime. Mental illness always has a
maladaptive quality, and criminality usually has a maladaptive quality.
The final panacea for prison injustice is,
therefore, more dynamic, far more positive, strategies by going back to man,
the inner man The ward-warden relationship needs holistic repair if prisons
are, in Gandhian terms, to become hospitals, if penology, as modern
criminologists claim, is to turn therapeutic. The hope of society from
investment in the penitentiary actualises only when the inner man within each
man, doing the penance of prison life, transforms his outer values and
harmonises the environmental realities with the infinite potential of his
imprisoned being. Meditative experiments, follow-up researches and welcome
results in many countries lend optimism to 598 techniques of broadening
awareness, deepening consciousness and quietening the psychic being.
It is of seminal importance to note that the
Tamil Nadu Prison Reforms Commission (1978-79) headed by a retired Chief
Justice of the High Court of Patna, working with a team of experts. has
referred with approval to successful experiments in Transcendental Meditation
in the Madurai Central Prison:
Success has been claimed for this programme.
It is reported that there is "reduction of anxiety and fear symptoms,
greater flexibility in dealing with frustration, increased desire to care for
others, and ability to interact in group situations viz. rational rather than
purely aggressive means. Some in mates reported spontaneous reduction in clandestine
use of alcohol and ganja; and even cigarette smoking was less.
Prison authorities informed us that they
noticed personality changes in some of these prisoners, and that they now had
the calm and pleasant exchanges with these inmates. Their behaviour towards
others in the prison and relationship with prison authorities also changed
considerably". There is a proposal to extend this treatment to short term
prisoners also. This treatment may also be tried in other prisons where
facilities exist. A copy of the report of the Director of the Madurai Institute
of Social Work is in Appendix XI.
The time for prison reform has come when
Indian methodology on these lines is given a chance. We do no more than
indicate the sign post to Freedom From Crime and Freedom Behind Bars as a
burgeoning branch of therapeutic jurisprudence. All this gains meaning where we
recognise that mainstreaming prisoners into community life as willing members
of a law-abiding society is the target. Rule 61 of the Standard Minimum Rules
stresses this factor:
61. The treatment of prisoners should
emphasize not their exclusion from the community, but their continuing part in
it. Community agencies should, therefore, be enlisted wherever possible to
assist the staff of the institution in the task of social rehabilitation of the
prisoners. There should be in connection with every institution social workers
charged with the duty of maintaining and improving all desirable relations of a
prisoner with his family and with valuable social 599 agencies. Steps should be
taken to safeguard, to the minimum extent compatible with the law and the
sentence, the rights relating to civil interests, social security rights and
other social benefits of prisoners.
It follows that social resources, helpful to
humane treatment and mainstreaming, should be ploughed in, senior law students
screened by the Dean of reputed Law Schools may usefully be deputed to
interview prisoners, subject to security and discipline. The grievances so
gathered can be fed back into the procedural mechanism viz. the District
Magistrate or Sessions Judge. The Delhi Law School, we indicate, should be
allowed to send selected students under the leadership of a teacher not only
for their own clinical education but as prisoner-grievance-gathering agency.
Other service organisation, with good credentials, should be encouraged, after
due checking for security, to play a role in the same direction. The Prisons
Act does provide for rule-making and issuance of instructions which can take
care of this suggestion.
Omega The omega of our judgment must take the
shape of clear directives to the State and prison staff by epitomising the
lengthy discussion. To clinch the issue and to spell out the precise directions
is the next step.
1. We hold that Prem Chand, the prisoner, has
been tortured illegally and the Superintendent cannot absolve himself from
responsibility even though he may not be directly a party. Lack of vigilance is
limited guilt. We do not fix the primary guilt because a criminal case is
pending or in the offing. The State shall take action against the investigating
police for the apparently collusive dilatoriness and deviousness we have
Policing the police is becoming a new
ombudsmanic task of the rule of law. G 2. We direct the Superintendent to
ensure that no corporal punishment or personal violence on Prem Chand shall be
inflicted. No irons shall be forced on the person of Prem Chand in vindictive
spirit. In those rare cases of 'dangerousness' the rule of hearing and reasons
set out by this Court in Batra's case and elaborated earlier shall be complied
3. Lawyers nominated by the District
Magistrate, Sessions Judge, High Court and the Supreme Court will be given all
facilities for inter views, visits and confidential communication with
prisoners subject to discipline and security considerations. This has roots in
the visitatorial and supervisory judicial role. The lawyers so designated shall
be bound to make periodical visits and record and report to the concerned court
results which have relevance to legal grievances.
4. 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 deem-d fit and
suitable action taken on complaints made. Access to such boxes shall be
accorded to all prisoners.
5. 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 to the High Court for the latter to
initiate, if found necessary, habeas action.
It is significant to note the Tamil Nadu
Prison Reforms Commission's observations:
38.16. Grievance Procedure :-This is a very
important right of a prisoner which does not appear to have been properly
considered. The rules regulating the appointment and duties of non-official
visitors and official visitors to the prisons have been in force for a long
time and their primary functions is "to visit all parts of the jail and to
see all prisoners and to hear and enquire into any complaint that any prisoner
hear make". In practice, these rules have not been very effective in
providing a forum for the prisoners to redress their grievances. There are a
few non-official visitors who take up their duties conscientiously and listen
to the grievances of the prisoners. But most of them take this appointment
solely as Fl a post of honour and are somewhat reluctant to record hl the
visitors' book any grievance of a prisoner which might cause embarrassment to
the prison staff. The judicial officers, viz., 601 the Sessions Judge and the
Magistrates who are also ex- officio visitors do not discharge their duties
We insist that the judicial officers referred
to by us shall carry out their duties and responsibilities and serve as an
effective grievance Mechanism.
6. 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.
Conclusion What we have stated and directed constitute
the mandatory part of the judgment and shall be complied with by the State. But
implicit in the discussion and conclusions are certain directives for which we
do not fix any specific time limit except to indicate the urgency of their
implementation. We may spell out four such quasi-mandates.
1. The State shall take early steps to
prepare in Hindi, a Prisoner's Handbook and circulate copies to bring legal
awareness home to the k 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.
2. The Slate shall take steps to keep up to
the Standard Minimum Rules for Treatment of Prisoners recommended by the United
Nations, especially those relating to work and wages, treatment with dignity
community contact and correctional strategies. In this latter aspect, the
observations we have made of holistic development of personality shall be kept
3. The Prisons Act needs rehabilitation and
the Prison Manual total overhaul, even the Model Manual being out of focus with
healing goals. A correctional-cum orientation course is necessitous for the
prison staff inculcating the constitutional values, therapeutic approaches and
tension- free management.
4. 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 re-commend,
keep a cell for prisoner relief In this connection, it is heartening to note
that the Delhi University, Faculty of Law, has a scheme of free legal
assistance even to prisoners.
The Declaration on the Protection of All
Persons from Torture and other cruel, Inhuman or Degrading Treatment or
Punishment adopted by U. N. General Assembly (Resolution 3452 of 9 December
1975) has relevance to our decision. In particular- Article 8.-Any person who
alleges that he has been subjected to torture or other cruel, inhuman or
degrading treatment or punishment by or at the instigation of a public official
shall have the right to complain to, and to have his case impartially examined
by, the competent authorities of the State concerned.
Article 9.-Wherever there is reasonable
ground to believe that an act of torture as defined in article I has been
committed, the competent authorities of the State concerned shall promptly
proceed to an impartial investigation even if there has been no formal
Dr. Chitale has handed up to us an American
Civil Liberties Union Hand-book on the Rights of Prisoners. It rightly sets the
sights of prison justice thus :
As an institution, our penal and
"correctional" system is an abject failure. The conditions in
America's jails and prisons virtually ensure psychological impairment and
physical deterioration for thousands of men and women each year. Reformation
and rehabilitation is the rhetoric; systematic dehumanization is the reality.
Public attention is directed 603 only sporadically toward the subhuman
conditions that prevail in these institutions, and usually only because the
prisoners themselves have risked many more years in confinement, and in some
cases even their lives, to dramatize their situation by protest.
The 'central evil' of prison life, according
to this handbook, is "the unreviewed administrative discretion granted to
the poorly trained personnel who deal directly with prisoners. Moreover, even
those rights which are now guaranteed by the courts are often illusory for many
prisoners. Implementation and enforcement of these rights rest primarily in the
hands of prison officials. Litigation is costly and time- consuming, and few
lawyers have volunteered their service in this area. Thus even those minimal
rights which appear on paper are often in reality denied. " We conclude
with the hope that the State, though preoccupied with many pressing problems,
will discharge its constitutional obligation to the invisible mortals
incarcerated by it and legislatively and administratively re-make a Prison Code
adhering to the high values of the Preamble. Over a hundred years ago (1870)-
" .... some American prison administrators assembled to discuss their
common problems and founded what is now the American Correctional Association.
At the very first meeting, these remarkable men set down a justly famous
'Statement of Twenty-two Principles." Among the twenty-two were these:
"Reformation, not vindictive suffering,
should be the purpose of the penal treatment of prisoners. The prisoner should
be made to realize that his destiny is in his own hands:
Prison discipline should be such as to gain
the will of the prisoner and conserve his self-respect:
The aim of the prison should be to make
industrious free men rather than orderly and obedient prisoners.
This quote from the well-known work "The
Crime of Punishment" extracted by George Ellis in his book "Inside
Folsom Prison: Trans- 604 cendental mediation and TM-Sidhi Program" is
notable as a practicable project which will reduce the number of prisoners by
raising the nature of prisoners.
In the package of benign changes needed in
our prisons with a view to reduce tensions and raise the pace of
rehabilitation, we have referred to acclimatization of the community life and
elimination of sex vice vis a vis prisoner we have also referred to the unscientific
mixing up in practice of under-trials, young offenders and long-term convicts.
This point deserves serious attention. A recent book "Rape in Prison"
"One of the most horrendous aspects of a
jail sentence is the fact that not only are the young housed with the older
offenders, but those awaiting trial share the same quarters as convicted
inmates. The latter individuals have little to lose in seeking sexual
gratification through assault, for they have to serve their time anyway .. As
matters now stand, sex is unquestionable the most pertinent issue to the
inmates' life behind bars. . . There is a great need to utilize the furlough
system in corrections. Men with record showing good behaviour should be
released for week ends at home with their Families and relatives.
Farewell to this case is not final so far as
the jailor and the police investigator are concerned. The former will stand his
trial and shall receive justice. We say no more here. The investigator invites
our displeasure and the Assistant Public Prosecutor, whom he consulted, makes
us unhappy since we have had a perusal of the case diary. The crime alleged is
simple, the material relied on is short and yet, despite repeated observations
from the Bench the investigator has delayed dawdily the completion of the
collection of evidence and the laying of the charge-sheet.
The prisoner who is the victim has been
repeatedly questioned under different surroundings and divergent statements are
recorded. We do not wish to state what we consider to be the obvious inference,
but we are taken aback when the Assistant Public Prosecutor has given an
opinion which, if we make presumption in his favour, 605 shows indifferences
and, if we make contrary inferences, makes us suspect. When offences are alleged
to have taken place within the prison, there should be no tinge or trace of
departmental collusion or league between the police and the prison staff. We
make these minimal observations so that the State may be alerted for
appropriate action. Surely, The conduct of the prosecution cannot be entrusted
to one who has condemned it in advance. B We allow the petition and direct a
writ to issue, including the six mandates and further order that a copy of it
be sent for suitable action to the Ministry of Home Affairs and to all the
State Governments since Prison Justice has pervasive relevance. C PATHAK, J.-I
have read the judgment prepared by my learned brother. For my part, I think it
sufficient to endorse the following finding and direction detailed towards the
end of the judgment:
(1) The prisoner, Prem Chand, has been
tortured while in custody in the Tihar Jail. As a criminal case is in the
offing or may be pending, it is not necessary in this proceeding to decide who
is the person responsible for inflicting the torture.
(2) The Superintendent of the Jail is
directed to ensure that no punishment or personal violence is inflicted on Prem
Chand by reason of the complaint made in regard to the torture visited on him.
Besides this, I am in general agreement with
my learned brother on the pressing need for prison reform and the expeditious
provision for adequate facilities enabling the prisoners, not only to be
acquainted with their legal rights, but also to enable them to record their
complaints and grievances, and to have confidential interviews periodically
with lawyers nominated for the purpose by the District Magistrate or the Court
having jurisdiction subject, of course, to considerations of prison discipline
and security. It is imperative that District Magistrate,, and Sessions Judges
should visit the prisons in their jurisdiction and afford effective opportunity
to the prisoners for ventilating their grievances and, where the matter lies
within their powers, to make expeditious enquiry therein and take suitable
remedial action. It is also necessary 606 that the Sessions Judge should be
informed by the jail authorities of any punitive action taken against a
prisoner within two days of such action. A statement by the Sessions Judge in
regard to his visits, enquiries made and action taken thereon shall be
submitted periodically to the High Court to acquaint it with the conditions
prevailing in the prisons within the jurisdiction of the High Court.