Kishor Singh Ravinder Dev Vs. State of
Rajasthan [1980] INSC 205 (4 November 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1981 AIR 625 1981 SCR (1) 995 1981
SCC (1) 503
ACT:
Prisons Act, 1894-Section Keeping of
Prisoners in solitary confinement and putting bar fetters for loitering and
insolent behaviour-Validity of Natural Justice-Prison authorities, if should
give an opportunity of being heard before imposing punishment on prisoners.
HEADNOTE:
One of the petitioners, in a telegram to one
of the Judges of this Court complained of insufferable, illegal solitary
confinement. He also complained that he was kept in iron fetters along with the
other two petitioners. By an order of this Court, the petitioners were directed
to be set free from solitary confinement and brought before the Court.
When the prisoners were brought before the
Court they alleged that, while in transit, violence had been used by the escort
police on the person of one of the petitioners resulting in deep wounds on his
person. The Superintendent of Prisons who was present in the Court was directed
to take special care of the prisoner after giving him proper medical treatment.
Allowing the petition
HELD: 1. Article 21 would become
dysfunctional unless the agencies of the law in the police and prison
establishments have sympathy for the humanist creed of that Article. The State
must re-educate the police and , F, inculcate a respect for the human person.
If any of the escort were found to have misconducted themselves they should be
given condign punishment. [999G, D, E]
2. By keeping the prisoners in separate
solitary rooms for long periods ranging from 8 to 11 months, putting cross- bar
fetters for several days on the flimsy grounds of loitering in the prison,
behaving insolently and in and;
uncivilised manner the prison authorities
have acted in utter disregard of the mandate of this Court in Sunil Batra.
[1000D-E]
3. The Jail Superintendent's version that he
had given a hearing to the prisoners before punishing them cannot be believed.
Neither section 46 of the Prisons Act nor Rule 79 of the Rajasthan Prison Rules
can be read in the absolutist expansionism, the Prison Authorities would like
them to be read. That would virtually mean that prisoners are not persons to be
dealt with at the mercy of the prison echelons. Articles 14, 19 and 21 operate
within the prisons in the manner explained in Sunil Batra. A separate Cell is
not different from solitary confinement. [1001, 1002G-H] (i) If special
restrictions of a punitive or harsh character have been imposed for convincing
security reasons, it is necessary to comply with natural justice as indicated
in Sunil Batra. There must be an appeal from a prison authority to a judicial
organ when such treatment is meted out.
[1003A] 996 (ii) Section 46 of the Prisons
Act and Rules 1(f) and 79 of the Rajasthan; Prison Rules are valid subject to
the directions given by this Court in Rakesh Kaushik. [1003G] (iii) The
Sessions Judges in the State of Rajasthan should remember the rulings of this
Court in Sunil Batra 1 and 11 and Rakesh Kaushik and act in such manner that
judicial authority over sentences and the conditions of their incarceration are
not eroded by judicial in-action. [1004A] Sunil Batra v. Delhi Administration
[1979] 1 SCR 392 Sunil Batra v Delhi Administration [1980] 2 SCR 557, Rakesh
Kaushik v. B. L. Vig, Superintendents Central jail, New Delhi [1980] 3 S.C.R.
929. applied.
ORIGINAL JURISDICTION: Writ Petition No. 5287
of 1980.
(Under Article 32 of the Constitution).
P. H. Parekh, Amicus Curiae for the
Petitioner.
B. D. Sharma for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The moral of this case is poignant: So long as an iron curtain
divides the law set by the Constitution and lit by the Supreme Court from the
minions of the State, so long shall this Court's writ remain a mystic myth and
harmless half-truth making law in the books and law-in-action distant
neighbours. This shall not be.
The sombre scenario unfurled by this habeas
corpus proceeding begins with a telegram (dated 3-10-1980) on behalf of the
prisoners-the petitioners-to one of us, complaining, manu brevi, of
insufferable, illegal solitary confinement punctuated by periods of iron
fetters, a lot shared by two others with him in Jaipur Central Jail. This
trauma-laden message reads:
"Convict Kishore Singh Ravinder Dev
Pareek Surjeet Singh Central Jail Jaipur confined in cells with fetters
illegally unconstitutionally more than eight months habeas corpus writ prayed
order enquiry and save .. Daulat Singh" This grievance of the prisoners in
'twisted gyves' triggered off judicial action with telegraphic speed, as it
were, and the Bench directed that the prisoners be forthwith liberated from
solitary confinement and freed from fetters in terms of the law laid down by
this Court in Sunil Batra's case. That order dated October 6, 1980 reads :-
"We appoint Shri P. H. Parekh as amicus curiae, 997 If the petitioner is
in solitary confinement, he will be released from solitary confinement forthwith
in the light of the decision of this Court in Sunil Batra's case. The
Superintendent of the Central Jail concerned will report to this Court on 21st
October 1980 the number of cases with particulars of persons in solitary
confinement in that prison. He will appear in person on that date. Notice to
Shri B. D. Sharma, Standing Counsel for the State of Rajasthan.
Counsel's services, under our litigative
process, are a necessary facility for remedial justice and so we took this step
of appointing Shri P. H. Parekh as amount curiae. The whole bar, if it has a
larger dedication, is amicus curiae, because no cause should be dearer to a
people-oriented, justice-centred profession, despite its esoteric genes,
elitist strands and lucrative slant, than to be a decisive actor in the
democracy of judicial remedies so that no man- be he poor man or prisoner,
dissenter, delinquent, eccentric or extremist-shall suffer what the law
forbids. In this Court, the members of the bar, whenever called up by the bench
have kept the door ajar and unfailingly helped the Court as free janitors of
justice and free forensic functionaries at the service of any one aggrieved by
injustice and seeking legal justice. After all, the great proposition that
inspires the calling of justicing-by the Bench and the Bar alike-is best
expressed by Dr. Martin Luther King (Jr) in his letter from Alabama Prison :
Injustice anywhere is a threat to justice
everywhere. We are caught in an inescapable network of mutuality, tied in a
single garment of destiny.
Whatever affects one directly affects all
indirectly.
We must, even here, record our appreciation
of Shri Parekh's passion for the prisoners' cause coupled with pains-taking
presentation of the grievances they had. So too Shri B. D. Sharma's commitment
to jail justice, beyond jailor's injustice i.e. his client's brief. In
retrospect, we feel it was right that we took quick action to liberate the
three prisoners from their callously lonely, barbarously fettered solitary
custody. Justice must be instant and it has been wisely said: "Caution,
caution, sir ! It is nothing but The word of cowardice ! Where human bondage
and personal torture are involved, to wait is to defeat. In personal liberty
jurisprudence, this court has not tarried or teetered and shall not. The reason
is clear. The writ must right the wrong forthwith or must stand self-condemned
as make-believe. Where justice is in jeopardy 998 or freedom is in fetters the
court is not non-aligned and acts with sensitive speed. Time is of the essence
where otherwise torture is the consequence.
The order of this court dated 6-10-1980
brought counsel on both sides into the scene, set free the prisoners from the
hateful 'solitary' and summoned before us the presence of the Superintendent
dent of the Prison on 21-10-1980 to answer for his breach of the fundamental
law laid down in Sunil Batra On that day, i.e. 21-10-1980, after a brief
hearing, we directed:
"The respondent will file a detailed
affidavit giving particulars and also produce the proceedings relating to the
enquiry held resulting in solitary confinement. The prisoner will be produced
on 24-10- 1980 in this Court and Shri Parekh will be allowed to interview
him." Pursuant to this order, the Superintendent of the Jail submitted his
explanation for what in the light of the Batra (supra) ratio, is unlaw. We will
presently consider the conduct of the delinquent jailor but the more disturbing
episode brought to our painful notice was the violence allegedly used by the
escort police on the person of one prisoner, Surjeet Singh, while in transit
and testified to by the visible wounds counsel found. Shri Parekh shocked us
into shame by seeking to show us the physical injuries inflicted. If the writ
of this court brings a person from the Jaipur Prison to judicial presence can
it be that a little set of constables in custody during transit violate, with
brazen brutality, and criminal immunity the person of their charges and the
hands of the law hang limp in the face of such lawlessness ? "Justice
without power is inefficient; power without justice is tyranny.. Justice and
power must therefore be brought together, so that whatever is just may be
powerful, and what ever is powerful may be just." (Blaise Pascal) So, we
ordered:
"We are very disturbed to be told by
Shri Parekh, amicus curiae that one of the prisoners, Surjeet Singh while being
taken to this Court was manhandled severely. Counsel says that there are
bruises and other signs of injuries on his person. The Superintendent of the
Jail, who is present in Court, will take special care to see that this prisoner
is taken to Jaipur safely. The Superintendent will take the prisoner Surjeet
Singh to Ram Manohar Lohia Hospital today for examination of the prisoner 999
and also for proper treatment which may be suggested by the Doctor in the
Hospital. In the light of the medical report the Superintendent will lay first
information before the Police Station concerned against the constables who are
the escorting police. It will be open to the prisoner himself to lay a complaint
and facilities will be afforded by the prison authorities.
We make it clear that the investigation
should not have the slightest taint of departmental inclination to help a
policeman if there is evidence of delinquency. A report will be put into this Court
about what has been done, by 31-10-1980." Thereafter, the medical report,
of which we have been apprised by Shri Parekh, the report against the
constables concerned, reported Jo us by Shri Sharma, are taking their course.
We do not make any observations thereon as that is the subject of a separate
enquiry. Even so, no police life- style which relies more on fists than on
writs, on torture more than on culture, can control crime, because means
boomerang on ends and re-fuel the vice which, it seeks to extinguish. Secondly,
the State must re-educate the constabulary out of their sadistic arts and
inculcate a respect for the human person-a process which must begin more by
example than by precept if the lower rungs are really to emulate. Thirdly, if
any of these escort policemen are found to have misconducted themselves, no
sense of police solidarity or in-service comity should induce the authorities
to hide the crime. Condign action, quickly taken is surer guarantee of
community credence than bruiting about that 'all is well with the police, the
critics are always in the wrong'. Nothing is more cowardly and unconscionable
than a person in police custody being beaten up and nothing inflicts a deeper
wound on our constitutional culture than a State official running berserk
regardless of human rights.
We believe the basic pathology which makes
police cruelty possible will receive Government's serious attention. Who will
police the police? What psychic stress and social deprivation of the
constabulary's lifestyle need corrective healings? When will 'wits, not fists'
become a police kit ? When will the roots of 'third degree' be plucked out and
the fresh shoots of humanist respect put out? We make these observations in the
humane hope that Art. 21, with its profound concern for life and limb, will
become dysfunctional unless the agencies of the law in the police and prison
establishments have sympathy for the humanist creed of that Article.
This Court has frowned upon handcuffs save in
the 'rarest of rare' cases where security will be seriously jeopardized unless
iron restraint is necessarily clamped on the prisoner. We are heartened to know
that there are States where escorting is done with civility 1000 and humanity.
For instance, para 443 of the Kerala Police Manual. 1970, Vol. II, reads :
"443. (1) The use of hand-cuffs or ropes
causes humiliation to the person subjected to the restraint, and is contrary to
the modern policy regarding the treatment of offenders. Therefore, handcuffing
and/or binding shall be restricted to cases where a person in custody is of a
desperate character, or where there are reasons to believe that he will use
violence or attempt to escape or where there are other similar reasons
necessitating such a step.
We mention this here since policemen who beat
those in their custody may with easy conscience handcuff and footcuff their
charges, a course contrary to Art. 21.
The harrowing facts, in substantial measure
emerge even from the statement of the case by the State. The petitioners have
admittedly been kept in separate solitary rooms for long periods from 8 months
to 11 months-spells long enough to be regarded as barbarous if Sunil Batra's
(supra) is to prevail. Admittedly, cross-bar fetters were put in Kishore Singh
for several days and on Surjeet Singh for 30 days- counsel for the petitioner
has rightly submitted that flimsy grounds like "loitering in the
prison", behaving insolently and in an "uncivilised" manner
tearing off his history ticket, were the foundation for the torturesome treatment
of solitary confinement and cross-bar fetters. We have read the affidavit of
the Superintendent and feel utterly unsatisfied, that the mandate in Sunil
Batra (supra) has been obeyed. This ease and the uncivilised orders of cellular
solitude and traumatic fetters compels us to repeat what we stated earlier in
Sunil Batra (11).
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:
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 (3), titled
"People in Prison", stated with telling effect:
1001 A society that believes in the worth of
individual beings can have the quality of its belief judged, at least in part,
by the quality of its prison and probation services and of the resources made
available to them.
We do not accept the Superintendent's version
that he had given a hearing to the prisoners before punishing them It is a
self-defensive pretence and perhaps the only veracious alibis available to him
are that the vintage Prison Rules (Rule l(f) Part 16 and Rule 79 of the
Rajasthan Prison Rules, 1951) support the administrative absolutism of the
prison boss and more to the point as counsel Shri Sharma candidly stated. The
Superintendent was 'innocent' of the benign prescriptions in Sunil Batra (11)
decision(1).
Indeed, Shri Sharma, convincingly persuaded
us to take a lenient view of the delinquency of the Superintendent by
emphasising that he had taken the Prison Superintendent through the effective
exercise of reading and explaining the Batra rulings and assuring us that no
more of solitary confinement disguised as "keeping in separate cell"
and imposition of fetters will take place, save in the rarest of rare cases and
with strict adherence to the procedural safeguards contained in the decisions
of this Court relating to the punishment of prisoners. We accept the bona fides
of the prison official but emphasise that violation of Art. 21 as interpreted
by this Court in its recent decisions, if repeated, will be visited with more
serious consequences.
Even so, we will refer to the scripture
relied on as absolvent of the sin complained of and reiterate Tersely the
mandatory prescriptions and prescriptions implicit in Art.
and elucidated by case-law.
Rules 79 and 1(f) of Part VI of the Rajasthan
Prisons Rules, may be extracted here:
79. "Special Precautions for security:
The Superintendent shall use his discretion in ordering such special
precautions as may be necessary to be taken for the security of any important
prisoner, whether he has received any warning from the Magistrate or not, as
the Superintendent is the sole Judge of what measures are necessary for the
safe custody of the prisoners; he shall be held responsible for seeing that
precautions taken are reasonably sufficient for the purpose.
1 (f) Cells may be used for the confinement
of convicted criminal prisoners who are in the opinion of the Superintendent,
likely to exercise a bad influence over other prisoners, if kept in their
association.
1002 These Rules were framed under s. 46 of
the Prisons Act which also may be read at this stage:
46. The Superintendent may examine any person
touching any such offence, and determine thereupon and punish such offence by
......
(6) imposition of handcuffs of such pattern
and weight, in such manner and for such period, as may be prescribed by rules
made by the Governor General in Council;
(7) imposition of fetters of such pattern and
weight in such manner and for such period, as may be prescribed by the rules
made by Governor General in Council;
(8) separate confinement for any period not
exceeding three months;
Explanation.-Separate confinement means such
confinement with or without labour as secludes a prisoner from communication
with, but not from sight of other prisoners, and allows, him not less than one
hour's exercise per diem and to have his meals in association with one or more
other prisoners;
................
(9) Cellular confinement means such
confinement with or without labour as entirely secludes a prisoner from communication
with, but not from sight of other prisoners;
We cannot agree that either the Section or
the Rules can be read in the absolutist expansionism the prison authorities
would like us to read. That would virtually mean that prisoners are non persons
to be dealt with at the mercy of the prison echelons. This country has no
totalitarian territory even within the walled world we call prison.
Articles 14, 19 and 21 operate within the
prisons in the manner explained. in Sunil Batra (I) (supra), by a Constitution
Bench of this Court. It is significant that the two opinions given separately
in that judgment agree in spirit and substance, in reasoning and conclusions.
Batra in that case was stated to be in a separate confinement and not solitary
cell. An identical plea has been put forward here too. For the reasons given in
Sunil Batra's case we must overrule the extenuatory submission that a separate
cell is different from solitary confinement. The petitioners will, therefore,
be entitled Jo move within the confines of the prison like others undergoing
rigorous imprisonment. If special restrictions 1003 of a punitive or harsh
character have to be imposed for convincing security reasons, it is necessary
to comply with natural justice as indicated in Sunil Batra case. Moreover,
there must be an appeal not from Caeser to Caeser, but from a prison authority
to a judicial organ when such treatment is meted out.
Sobraj in the same case (Sunil Batra, supra)
was kept in fetters and reasons more persuasive than in the present case were
put forward in defence. This Court, however, directed "such fetters shall
forthwith be removed". Of course, we do not place any absolute ban but
insist that only in extreme cases of compelling necessity for security of other
prisoners or against escape can such fettering be resorted to. Human dignity is
a dear value of our Constitution not to be bartered away for mere apprehensions
entertained by jail officials. The latter decision of this Court in Sunil Batra
11 clothes with flesh and blood the principles laid down in Sunil Batra (I)
(supra). In Rakesh Kaushik the position has advanced further and concrete
directions have been issued which we extract here because the law laid down by
this Court applies not to one State or the other but to all national
institutions in the country:
"(2) He will further enquire, with
specific reference to the charges of personal assault and compulsion for
collaboration in canteen swindle and other vices made by the prisoner against
the Superintendent and the Dy. Superintendent.
(3) He will go into the question of the
directives issued in the concluding portion of Sunil Batra's case (W.P.
1009/79) with a view to ascertain whether these directions have been
substantially complied with and to the extent there is shortfall or default
whether there is any reasonable explanation there for.
(4) Being a Visitor of the jail, it is part
of his visitatorial functions for the Sessions Judge to acquaint himself with
the condition of tension, vice and violence and prisoners' grievances
...........
We hold that the jail authorities in
Rajasthan will comply with the principles so laid down. We read down s. 46 and
Rules 1(f) and 79 of the Rajasthan Prison Rules and sustain them in this
limited fashion 1004 We direct the Respondents to act accordingly. Further we
remind that the Sessions Judges in the State of Rajasthan to remember the
rulings of this Court in Sunil Batra I & 11 and Rakesh Kaushik (supra) and
act in such manner that judicial authority over sentences and the conditions of
their incarceration are not eroded by judicial in-action.
We find that the old rules and circulars and
instructions issued under the Prisons Act are read incongruously with the
Constitution. especially Art. 21 and interpretation put upon it by this Court.
We. therefore, direct the State Government of Rajasthan-and indeed, all the
other State Governments in the country-to convert the rulings of this Court
bearing on Prison Administration into rules and instructions forthwith so that
violation of the prisoners' freedoms can be avoided and habeas corpus
litigation may not proliferate. After all, human rights are as much cherished
by the State as by the citizen.
Since the petitioners have been released from
separate confinement and from cross-bar fetters and since counsel for the State
has assured us that nothing will be done in violation of the propositions set
out in the catena of cases of this court (Sunil Batra I & 11 and Rakesh
Kaushik (supra) ), we deem it unnecessary to give any further directives pursuant
to this habeas corpus application.
N.V.K. Petition allowed.
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