VISHAKA & ORS. Vs. STATE OF RAJASTHAN & ORS

PETITIONER: VISHAKA & ORS.
Vs.
RESPONDENT:
STATE OF RAJASTHAN & ORS.
DATE OF JUDGMENT: 13/08/1997
BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T Verma, CJI:
This Writ Petition has been filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of 'gender equality'; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.
The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of social worker in a village of Rajasthan. That incident is the subject matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need.
Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty'. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a siltation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility fro ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.
The notice of the petition was given to the State of Rajasthan and the Union of India. The learned Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. We place on record our great appreciation for every counsel who appeared in the case and rendered the needed assistance to the Court which has enabled us to deal with this unusual matter in the manner considered appropriate for a cause of this nature.
Apart from Article 32 of the Constitution of India, we may refer to some other provision which envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Articles 14, 19(1)(g) and 21, which have relevance are: Article 15:
"15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, place of birth or any of them.
(2) xxxxxxx
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) xxxxxxxx"
Article 42: "42. Provision for just and humane conditions of work and maternity relief - The State shall make provision for securing just and humane conditions of work and for maternity relief."
Article 51A: "51A. Fundamental duties. - It shall be the duty of every citizen of India, -
(a) to abide by the Constitution and respect its ideals and institutions,
xxxxxxxx
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; xxxxx
xxxx" Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in application and judicial interpretation, we may advert to some other provisions in the Constitution which permit such use. These provisions are:
Article 51 : "51. Promotion of international peace and security - The State shall endeavour to -
xxxxxxxx
(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and
xxxxx"
Article 253 : "253. Legislation for giving effect to international agreements - Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body." Seventh Schedule :
"List I - Union List: xxxxxx
xxxx 14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
xxxxx"
In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the parliament enacts to expressly provide measures needed to curb the evil.
Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and o make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirements as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.
The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behaviour of the employers and all others at the work places to curb this social evil.
Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.
The obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are:
"Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the following:
(a) to ensure that all persons are able to live securely under the Rule of Law;
(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons and the State."Some provisions in the 'Convention on the Elimination of All Forms of Discrimination against Women', of significance in the present context are: Article 11:
"1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
xxxxxxxxx
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
xxxxxxxxx
Article 24 : "States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention."
The general recommendations of CEDAW in this context in respect of Article 11 are :
"Violence and equality in employment:
22. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place.
23. Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.
Effective complaints procedures and remedies, including compensation, should be provided.
24. States should include in their reports information about sexual harassment, and on measures to protect women from sexual
harassment and other forms of violence of coercion in the work place."
The Government of India has ratified the above Resolution on June 25, 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the Government of India has also made a official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women's Rights to act as a public defender of women's human rights; to institutionalise a national level mechanism to monitor the implementation of the Platform for Action. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.
The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse. Independence of Judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the fields when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms fro construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister fro Immigration and Ethnic Affairs vs. Tech. 128 ALR 535, has recognised the concept of legitimate expectation of its observance in the absence of contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.
In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the ICCPR was referred to support the view taken that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right', as a public law remedy under Article 32, distinct from the private law remedy in torts. There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.
In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time,
It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours;
c) sexually coloured remarks; d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.
Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at
the work place should be notified, published and
circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector
bodies relating to conduct and discipline should include
rules/regulations prohibiting sexual harassment and provide
for appropriate penalties in such rules against the
offender.
(c) As regards private employers steps should be taken to
include the aforesaid prohibitions in the standing
orders under the Industrial Employment (Standing Orders)
Act, 1946.
(d) Appropriate work conditions should be provided in respect
of work, leisure, health and hygiene to further ensure that
there is no hostile environment towards women at
work places and no employee woman should have reasonable
grounds to believe that she is disadvantaged in connection
with her employment. 4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the
Indian Penal Code or under any other law the employer shall
initiate appropriate action in accordance with law by making
a complaint with the appropriate authority.
In particular, it should ensure that victims, or
witnesses are not victimized or discriminated against while
dealing with complaints of sexual harassment. The victims
of sexual harassment should have the option to seek
transfer of the perpetrator or their own transfer.
5. Disciplinary Action: Where such conduct amounts to
mis-conduct in employment as defined by the relevant
service rules, appropriate disciplinary action should be
initiated by the employer in accordance with those rules.
6. Complaint Mechanism: Whether or not such conduct
constitutes an offence under law or a breach of the
service rules, an appropriate complaint mechanism should be
created in the employer's organization for redress of
the complaint made by the victim. Such complaint
mechanism should ensure time bound treatment of complaints.
7. Complaints Committee: The complaint mechanism,
referred to in (6) above, should be adequate to provide,
where necessary, a Complaints Committee, a special
counsellor or other support service, including the
maintenance of confidentiality.
The Complaints Committee should be headed by a woman
and not less than half of its member should be women.
Further, to prevent the possibility of any under
pressure or influence from senior levels, such Complaints
Committee should involve a third party, either NGO or
other body who is familiar with the issue of sexual
harassment.
The Complaints Committee must make an annual report to the
government department concerned of the complaints
and action taken by them. The employers and person in charge
will also report on the compliance with the aforesaid
guidelines including on the reports of the Complaints
Committee to the Government department.
8. Workers' Initiative: Employees should be allowed to
raise issues of sexual harassment at workers meeting
and in other appropriate forum and it should be affirmatively
discussed in Employer-Employee Meetings.
9. Awareness: Awareness of the rights of
female employees in this regard should be created in
particular by prominently notifying the guidelines (and
appropriate legislation when enacted on the subject) in
suitable manner. 10. Where sexual harassment occurs as a result of an act or
omission by any third party or outsider, the employer and
person in charge will take all steps necessary and reasonable
to assist the affected person in terms of support and
preventive action. 11. The Central/State Governments are requested to consider
adopting suitable measures including legislation to
ensure that the guidelines laid down by this order are
also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available
under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.

AIR INDIA V. NERGESH MEERZA & ORS

Click here for the judgment
http://www.commonlii.org/in/cases/INSC/1981/152.ಹ್ತ್ಮ್ಲ್

Kesavananda Bharati vs. The State of Kerala

The judgment contains more than 1500 pages, hence I have given below the link, even though it does not contain full judgment, in the view exam, it is more than enough!

http://www.nationmaster.com/encyclopedia/Kesavananda-Bharati-vs.-The-State-of-Kerala

HUSSAINARA KHATTON & ORS V. HOME SECRETARY, STATE OF BIHAR, PATNA

Constitution of India 1950-Art. 21-Women kept in jail by way of 'protective custody'-Violation of personal liberty.
Code of Criminal Procedure 1973-Ss. 167(5) & 468- Release of under-trial prisoner when Magistrate not satisfied with necessity of continuing investigation or charge-sheet not filed within limitation.
HEADNOTE:
At the further hearing of the case on release of under- trials in the State of Bihar, ^
HELD: (a)(i) The expression 'protective custody' is an euphemism calculated to disguise what is really and in truth nothing but imprisonment. It is an expression intended to appease the conscience. This so-called 'protective custody' is nothing short of a blatant violation of personal liberty guaranteed under Art. 21 of the Constitution, because there is no provision of law under which a woman can be kept in jail by way of 'protective custody' or merely because she is required for the purpose of giving evidence. [395C-D] (ii) The Government in a social welfare state must set up rescue and welfare homes for the purpose of taking care of women and children who have nowhere else to go and who are otherwise uncared for by society. [395E] (b) The under-trial prisoners against whom charge- sheets have not been filed by the police within the period of limitation provided for in sub-section (2) of section 468 cannot be proceeded against at all and they would be entitled to be released forthwith, as their further detention would be unlawful and in violation of their fundamental right under Art. 21. [397 G] (c) The provision of s. 167(5) of the Code of Criminal Procedure 1973 requiring the investigating officer to satisfy the Magistrate on the necessity of continuation of the investigation beyond a period of six months has not been complied with, because there are quite a few cases where the offences charged against the under-trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months.
[398C] And the Court directed that:- (a) All women and children in the jails in the State of Bihar under 'protective custody' should be released and taken forthwith to welfare homes or rescue homes and should be kept there and properly looked after. [395F] (b) The State Government should scrutinise the cases of under-trial prisoners and release such of them who are not liable to be proceeded against by reason of the period of limitation provided in s. 468 Cr.P.C. having expired. [397H] (c) The State Govt. should inquire into those cases where the investigation has been going on for a period of more than six months without the satisfaction 394 of the Magistrate as envisaged in s. 167(5) and to release the under-trials unless the necessary orders of the Magistrate are obtained within one month. [398D-E]
ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners.
Lal Narain Sinha, U. P. Singh and S. N. Jha for the Respondent.
S. V. Gupte, Attorney General, R. N. Sachthey for the Attorney General.
The Order of the Court was delivered by BHAGWATI, J.-The Government of Bihar has filed before us a note containing the proposed clarification of paragraph 2(e) of the Government Order dated 9th February, 1979, pursuant to the suggestion made by us in our order dated 19th February, 1979. This clarification states in paragraph one that where the police investigation in a case has been delayed by over two years, the Superintendent of Police will see to it that the investigation is completed expeditiously and final report or charge-sheet is submitted by the police as quickly as possible and the responsibility to ensure this has been laid personally on the Superintendent of Police. We are glad to note that the State Government has responded to our suggestion but we are not at all sure whether it is enough merely to provide that the investigation would be completed expeditiously and the final report or charge-sheet submitted as quickly as possible. We are of the view that a reasonable time limit should be set by the State Government within which these steps should be taken, so that no further delay is occasioned in the submission of the final report or charge-sheet. We fail to see how any police investigation can take so long as two years and if police investigation cannot be completed within two years, then there must be something radically wrong with the police force in the State of Bihar. It appears that there are a number of cases where police investigation has not been completed for over two years and persons have been in jail as under-trial prisoners for long periods. This is a shocking state of affairs so far as the administration of law and order is concerned. We would, therefore, suggest that in those cases where police investigation has been delayed by over two years, the final report or charge-sheet must be submitted by the police within a further period of three months and if that is not done, the State Government might well withdraw such cases, because if after a period of over two years plus an additional period of three months, the police is not able to file a charge-sheet, one can reasonably assume that there is no case against the arrested persons.
395 The Government of Bihar has also filed a counter- affidavit made by Mr. Mrinmaya Choudhry, Assistant Inspector General of Prisons (1), Bihar setting out the particulars in regard to 18 under-trial who have been ordered to be released by us on their personal bond. The particulars given in this counter-affidavit make very distressing reading. It appears from this counter-affidavit that there are quite a few women prisoners who are in jail without even being accused of any offence, merely because they happen to be victims of an offence or they are required for the purpose of giving evidence or they are in "protective custody". The expression 'protective custody' is a euphemism calculated to disguise what is really and in truth nothing but imprisonment. It is an expression intended to appease the conscience. It cannot be gainsaid that women who have been kept in jail under the guise of 'protective custody' have suffered involuntary deprivation of liberty for long periods without any fault on their part. We may point out that this so-called 'protective custody' is nothing short of a blatant violation of personal liberty guaranteed under Article 21 of the Constitution, because we are not aware of any provision of law under which a woman can be kept in jail by way of "protective custody" or merely because she is required for the purpose of giving evidence. The Government in a social welfare state must set up rescue and welfare homes for the purpose of taking care of women and children who have nowhere else to go and who are otherwise uncared for by the society. It is the duty of government to protect women and children who are homeless or destitute and it is surprising that the Government of Bihar should have come forward with the explanation that they were constrained to keep women in 'protective custody' in jail because a welfare home maintained by the State was shut down. We direct that all women and children who are in the jails in the State of Bihar under 'protective custody' or who are in jail because their presence is required for giving evidence or who are victims of offence should be released and taken forthwith to welfare homes or rescue homes and should be kept there and properly looked after.
We also find from the counter-affidavit that Bhola Mahto was in jail from 23rd November, 1968 until 16th February, 1979 when he was released on his personal bond pursuant to the directions given by us by our order dated 5th February, 1979. He is accused in a case under Section 363 & 368 of the Indian Penal Code and he was committed to the court of Sessions on 13th September, 1972 but his sessions trial has not yet commenced. It is amazing that a sessions 396 trial of a person committed to the court of sessions as far back as 13th September 1972 should not have been commenced for about seven years. We direct that the Sessions Judge, Patna should forward to this Court through the High Court of Patna an explanation as to why the sessions trial of Bhola Mahto has not yet commenced. This is also a matter to which we would invite the attention of the High Court of Patna.
The same may be said also of Ram Sagar Mistry who was admitted in jail on 28th March, 1971 and committed to the Court of Sessions on 28th June, 1972 on a charge under section 395 of the Indian Penal Code but whose trial has not yet commenced before the Court of Sessions though a period of more than six years has elapsed since the date of his commitment and a period of eight years since the date of his imprisonment.
The counter-affidavit shows that Babloo Rai who is reported to be a Naxalite is in jail since 15th May, 1975.
He is alleged to be involved in five cases which are set out in the counter-affidavit. So far as he is concerned, it will be open to him to make an application to the Magistrate before whom he is produced, for being released on bail or on his personal bond and the Magistrate will deal with his application in accordance with broad guidelines laid down by us in our judgment dated 12th February, 1979.
We are not at all sure on reading the counter-affidavit whether the under-trial prisoners whose particulars are given there, are being produced periodically before the Magistrate as required by the proviso to Section 167(2) of the Code of Criminal Procedure, 1973. We should like to know from the Government in a proper affidavit to be filed before us on or before 3rd March, 1979 whether these under-trial prisoners were periodically produced before the Magistrate in compliance with the requirement of the proviso to Section 167(2). The proviso to Section 167(2) says that the Magistrate may authorise the detention of the accused person beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so. We hope and trust that in these cases the Magistrates concerned did not act mechanically but applied their mind and satisfied themselves that adequate grounds existed for remanding these persons to judicial custody from time to time over a period varying from two to ten years, though we fail to see how the Magistrates could possibly have been satisfied about the existence of adequate grounds for remanding these persons to judicial custody for such long periods of time ranging from two to ten years for the purpose of police investigation.
This is also a matter which we would like the High Court of Patna to consider after making a detailed inquiry.
397 The Government of Bihar has also filed before us a list giving particulars of the under-trial prisoners who are confined in 17 jails in Bihar for more than 18 months as on 1st February, 1979. The chart shows that there are under- trial prisoners confined in these jails for long periods of time and sometimes even exceeding the maximum punishment which could be awarded to them even if they are found guilty of the offences charged against them. To take an example, we find at Item 30 one Lambodar Gorain has been in Ranchi Jail since 18th June, 1970 for an offence under Section 25 of the Arms Act for which the maximum punishment is two years, with the result that he has been in jail as an under-trial prisoner for 8 1/2 years for an offence for which even if convicted, he could not have been awarded more than two years' imprisonment. There are many such cases in the chart, but it is not possible to identify them easily from the chart because the chart contains a large number of names of under-trial prisoners. We would, therefore, direct the Government of Bihar to submit to us on or before 3rd March, 1979 a revised chart showing yearwise break-up of the particulars of the under-trial prisoners in these jails after dividing them broadly into two categories, one of minor offences and the other of major offences.
Our attention has also been drawn to Section 468 of the Code of Criminal Procedure 1973 which in sub-section (1) provides that except as otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation and under sub-section (2) the period of limitation provided is six months, if the offence is punishable with fine only, one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. It would, therefore, be seen that the under- trial prisoners against whom charge-sheets have not been filed by the police within the period of limitation provided in sub-section (2) of Section 468 cannot be proceeded against at all and they would be entitled to be released forthwith, as their further detention would be unlawful and in violation of their fundamental right under Article 21.
We, therefore, direct the Government of Bihar to scrutinise the cases of under-trial prisoners charged with offences which are punishable with fine only or punishable with imprisonment for a term not exceeding one year or punishable with imprisonment for a term exceeding one year but not exceeding three years and release such of them who are not liable to be proceeded against by reason of the period of limitation having expired. This direction shall be carried out by the Government of Bihar within a 398 period of six weeks from today and compliance reports containing particulars shall be submitted to this Court, first at the end of four weeks and then at the end of the next two weeks.
We also find from section 167(5) of the Code of Criminal Procedure, 1973 that if in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary. We are not at all sure whether this provision has been complied with, because there are quite a few cases where the offences charged against the under-trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months. We, therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary, the Government of Bihar will release the under-trial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from today. We would also request the High Court to look into this matter and satisfy itself whether the Magistrates in Bihar have been complying with the provisions of section 167(5).
We adjourn the hearing of the Writ Petition to 5th March, 1979 and on that date, we shall proceed to hear and dispose of the Writ Petition on merits on the various questions arising for determination.

PETITIONER: SUNIL BATRA

PETITIONER: SUNIL BATRA
Vs.
RESPONDENT:DELHI ADMINISTRATION

DATE OF JUDGMENT20/12/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
ACT:
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 procedure.
Legal Aid-provision of free legal aid to prisoners-
necessity of.
HEADNOTE:
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 them selves 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, JJ.)
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 the action.
[601 B-C]
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.
[563 E]
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 [1965] 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. [576 F]
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 [1979] 1 SCC 248: N. H.
Hoskot v. Maharashtra, [1979] 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. [579 B-C]
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.
[579 E]
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. [596 D]
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 implementation:
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.
[605 F]
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]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 1009 of 1979.
Under Article 32 of the Constitution.
Dr. Y. S. Chitale and Mukul Mudgal for the Petitioner.
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 separate opinion.
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 torture.
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
it.
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 shock.
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 casualty
immediately.
Remarks of Superintendent. Noted 27 August, 79 sd D.S.
1.2.35 p.m.
Sd/-
(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
tho 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 further
treatment.
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 way.
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 practice.
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, if true:
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
Hospital.
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 Tihar prison.
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 transfer ....
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 arc 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 wrote:................................
' ....... 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 limits.
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 Dwarkanath case:
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 trial, 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 protection.
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 Batra (supra).
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 action.
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 conclusions.
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 impediment.
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 prisoners' protection.
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 Constitution.
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 given
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
asylum.
586
Section 27 (2) and (3) of the Prisons Act states:
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 creativity.
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, etc).
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 unawakened 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 grievances.
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 Rudovsky:
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 prisoner's
letter:
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 Central Jails.
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 understand 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 justified.
Chapter V of the Manual deals with visitors who arc 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
reproduced:
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 thereunder, 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 noncooperate 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 due hearing.
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 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
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 liquidate
property;
"Special" Masters-responsible for multiple
functions such as fashioning a plan and assisting in
its implementation;
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 1973) (ombudsmen).
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 is escalating.
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 almost unmanageable:
(i) Huge overcrowding in the jail. Normal
population of the jail remains between 2300-
2500 against 1273 sanctioned accommodation.
(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 etc., etc.
(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 some one is a
wrong to every one 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:
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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
supporting life.
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
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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
re ported 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
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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 earlier indicated.
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 with.
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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.,
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the Sessions Judge and the Magistrates who are also ex-
officio visitors do not discharge their duties
effectively.
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 in view.
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.
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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
complaint.
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" states :
"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 any way .. 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.
N.V.K. Petition allowed
607