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SUNIL BATRA ETC .. ,

v.

DELW ADMINISTRATION AND ORS. ETC.

August 30, 1978

[Y. V. CHANDRACHUD, C.J:, V. R. KRISHNA IYER, S. MURTAZA FAZAL

-~, :'c-.~--ALI, P; N. Sll!NGHAL AND D. A. DESAI, JJ.]

~ .' . . ' .

--Prisons Act 1894--Seclion 30-Scope ·of-Solitary confinement-Imposition

of bar-fett"ers ulider s. 56 on a prisoner-Whether violates Artic(es .. 14,_ 19, 21

of _the Constitution 1950.-:-~ -

Practice and Procedure-ll/ecessity of social welfare organisation to inten·ene

in the litigative procesJ .

. -. P~iso~ Act 1894.~nd Punjab Jail Manual-Need for revision to re-fleet the

deeper rneaning in the behavioural norms, correctional a!ti:ude1 and hunrane

Orientdtion for the prison staff and prisoners alike.

--·----=::-

Words & Phrases-~Under sentence of Death'. and ~apart /rOm all other

prisonerJ'-Meaning of.

. Section 30(2) _of the Prisozis Act provides that every priSoner under sentence

of death shall be confined in 3: cell aPart from all other prisoners and shall · be

placed

by day and by night under the charge of a

giiard.

The petitioner in W.P. No. 2202 of 1977 who was a convict under sentence

of death challenged his solitary confinement.

1

It was contended on his behalf

that s. 30(2) does not authorise placing a prisoner under sentence of death

in solitary confinement and that the jail authority could not arrogate to itself

the power

to impose such punishment under the garb of giving effect to s. 30(2).

On

the other hand it was contended on behalf of the State that the section merely

permits statutory segregation

for safety of the prisoner in the prisoner's own

interest

and that instead of

striking down the provision, the Court should adopt

a course

of so reading down the section as to denude it of its ugly inhuman features.

The petitioner in W.P. 565 of 1977 contended· that s. 56 of the Prisons Act

which confers unguided, uncanalised,

and arbitrary powers on the Superintendent

.to confine

!J. prisoner in. irons is ultra vires Arts. 14 and 21 of the Constitution.

Dis~ing the petitions.

HEID~; -(~ Chandrachud CJ. Fazal Ali, Shinghal and Desai, JJ.).

1. Section 30(2) does not empower the prison authority to impose solitary

confinement upon a prisoner under sentence

of death. Even jail discipline

inhibits solitary confinement

as a measure of jail punishment. [499H] '

2. It ha'; been well established that convicts are not by mere reason of the

conviction denuded

of all the fundamental rights which they otherwise possess.

For example a man of profession who

is convicted would stand stripped of his

right to hold consultations while serving out his sentence; but the Constinition

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

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 393

a convict is entitled to the precious right guaranteed by Art. 21 that he shall A

not be deprived of his life or personal liberty except according to the procedure

established

by law.

[4950-H]

Procunier v. Martiney 40 L. Ed. 2d. 224 at 248; Wolff v. Mcdonnel 41 L.

Ed 409 at 501; D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh & Ors.

[1975] 2 SCR 24 referred to.

3. Sections 73 and 74 of the Indian Penal Code leave no room for doubt

that solitary confinement is by itself a substantive punishment which can be

imposed by a court of law. It cannot be left to the whim and caprice of prison

authorities. The limit of solitary confinement that can

be imposed

under

Court's order is strictly JJrescribed by the Penal Code, [498 B-C]

4. Solitary confinement is so revolting to the modern sociologist and law

reformer that the Law Commission recommended that the punishment of solitary

confinement

is out of tune with modern thinking and should not find a place in

the

Penal Code as a punishment to be ordered by any criminal court even

though

it

may be necessary as a measure of jail discipline. [498 F-G]

5. The explanation to s.44(8) of the Prisons Act makes it clear that a

person

is not wholly segregated from other prisoners in that he is not removed

from the sight

of other prisoners and he is entitled to have his meals in associa­

tion with one

or more other prisoners. Even such separate confinement cannot

exceed three months, Para 847 of the Punjab Jail Manual, if literally enforced

would keep a prisoner totally out

of bounds, that is, beyond sight and sound.

Neither 5eparate confinement nor cellular confinement

of a condemned

prisoner

would be as tortuous or horrendous as solitary confinement of a condemned

prisoner. Section 30(2) merely provides for confinement of a prisoner under

sentence of death

in

a cell apart from other prisoners. Such confinement can

neither

be cellular confinement nor separate confinement and in any event it <:annot be solitary confinement. [499E-H]

6. A "prisoner under sentence of death" in the context of s. 30(2) can only

mean a prisoner whose sentence

of death has become final, conclusive and inde­

feasible which cannot be annulled

or avoided by any judicial or constitutional

procedure. Till then a person who is awarded capital punishment cannot be

said to be a prisoner under sentence of death. There is an inordinate time Jag

between the sentence of death passed by the Sessions Judge and the final disposal

of appeal by the High Court or Supreme Court depending on the circumstances

of each case or the rejection of an application for mercy by the President or the

Governor.

It cannot be said that under s.

30(2) such prisoner, from the time

the death sentence

is awarded by the Sessions Judge has to be confined to a cell

apart from other prisoners.

[5~1F, 502C, 501C, 501£]

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7. Jail custody is something different from custody of a convict suffering

simple or rigorous imprisonment. The purpose behind enacting

s. 366 (2) of

the Code of Criminal

Procedure is to make the prisoner available when the

sentence

is required to be executed. Unless special circumstances exist, even

in cases where a person

is kept in a cell apart from other prisoners with day and H

night watch, he must be within the sight and sound of other prisoners and be

able to take food in their company,

[502 E-G]

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SUPREME COURT REPORTS [1979] 1 S.C.R.

8. Section 30(2) as interpreted is not violative of Art. 20. When a prisoner

is committed under a warrant for jail custody under s. 366(2), Cr. P.C. and if

he is detained in solitary confinement which is a punishment prescribed by

s. 73, I.P.C. it will amount to imposing punishment for the same offence more

than once, which would be violative of Art. 20(2). But as the prisoner is

not to be kept in solitary confinement and the custody in vihich he is kept under

s. 30(2) would preclude detention in solitary confinement, there is no chance of

imposing a second punishment upon him and, therefore,

s.

30(2) is not violative

of Art. 20. [502H; 503 A-Bl

9. Personal liberty of the person who is incarcerated is to a great extent

curtailed

by punitive detention. It is even curtailed in preventive detention. The

liberty to move, mix, mingle, talk, share company with co-prisoners, if substan­

tially curtailed, would be violative of Art.

21 unless the curtailment has the back­

ing

of law. Section 30(2) establishes the

procedure by which it can be curtailed

but it must be read subject to the interpretation placed in this judgment. Once

s. 30(2) is read down, its obnoxious element is erased and it cannot be said

that it

is arbitrary or that there is deprivation of personal liberty without the

authority of law. [504E-F]

10. Classification according to sentence for security purposes is valid and

therefore

s.

30(2) does not violate Art. 14. The restriction imposed by s. 30(2)

is not unreasonable. It is imposed keeping in vie¥.r the safety of the prisoner

and the prison security and does not violate Art. 19. [505F]

11. There is no warrant for an implicit belief that every prisoner under

sentence of death

is necessarily violent or dangerous requiring his segregation.

The rationale underlying

s.

30(2) is that the very nature of the position and

predicament

of a prisoner under sentence of death leads to a certain situation

and present problems peculiar to such persons and warrant their separate classi­

fication and treatment

as a measure of jail administratiori and prison discipline.

It can hardly be questioned that prisoners under sentence of death form a

separate class and their sepf!,rate classification has to be recognised. [505 A-C]

12. Section 30(2) as interpreted does not mean that the prisoner is to be

completely segregated except in extreme cases

of necessity which must be speci­

fically made out and

th.nt too after he becomes a prisoner under sentence of

death. [505F]

13. Section 56 is not violative of Arts. 14 and 21. [51 IC]

The power under s. 56 can be exercised only for reasons and considerations

which are germane to the objective

of the statute, viz.; safe custody of the

prisoner, which takes in considerations regarding the character and propensities

G of the prisoner. These and similar considerations bear direct nexus with the

safe

custody of prisoners as they are aimed primarily at preventing their escape.

The determination of the necessity to put a prisoner in bar fetters has to be made

after application

of mind to the peculiar and special characteristics of each

individual prisoner. The

nan.ire and length of sentence or the magnitude of the

crime committed by the prisoner are not relevant for the purpose of determining

that question. [509A-C]

H

14.

·There are sufficient guidelines in s. 56. It contains a number of safe­

guards against misuse of

bar fetters by the Superintendent.

Such circumscribed

peripheral discretion with-duty to give reasons which are revisable by the higher

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 395

authority cannot be described as arbitrary so as to be violative of Art. 14. The A

Superintendent can put the prisoner in bar fetters only after taking into consi­

deration the peculiar and special characteristics of each individual prisoner.

No ordinary routine reasons can

be sufficient. Duty to record reasons in the

Superintendent's Journal as

well as the prisoner's history ticket will narrow the

discretionary power conferred on him. The reasons must

be recorded in the

language intelligible and understandable

by the prisoner. A further obligation

is that the fetters imposed for the security, shall be removed by the Superinten-

B

dent as soon as he is of opinion that this can be done with safety. The Superin­

tendent wi11 have to review the case at regular and frequent inteivals for ascer­

taining whether the fetters can

be removed.

[510-A-B, 509E-H]

15. Moreover, the section does not permit the use of bar fetters for an un­

usually long period, day and night, and that too when the prisoner is confined

in ti! secure cell fron1 where escape is somewhat inconceivable. [511B]

Per Krishna Iyer, J. concurring

I. The vires of section 30 and section 56 of the Prisons Act upheld. These

and othet provisions, being somewhat out of tune

with current penelogical vallies, to be revised by fresh legislation. Prison Manuals are mostly callous

colonial compilations and even their copies are mostly beyond the prisoner's

~en. Punishments, in civilized societies, must not degrade human dignity or

\_i.·C1und fltsh and spirit. The cardinal sentencing goal is correctional, changing

the consciousness of the criminal to ensure social defence. Where prison treat­

ment abandons the reformatory purpose and practises dehumanizing techniques

it

is wasteful, counter-productive and irrational hovering on the hostile brink of unr<tlllonableness (Article 19). (4888-C]

t..-..(2) Solitary confinement, even if mollified and modified marginally, is not

~knCtiOned by s. 30 for prisOners 'under sentence of death'. But it is legal under

that ff(.ti(.'111 to separate such sentences from the rest of the prison community

during hours when prisoners are generally locked in. The special watch, day

and night. of such sentencees by guards upheld. Infraction of privacy may be

inevitable. but guards must concede minimun1 human privacy in practice.

f488E]

. (3) Prisoners 'under ·sentence of death' shall not be denied any of the com­

muflity amenities, including games, newspapers, books, moving around and

meeting prisoners and visitors, subject to reasonable regulation of prison

management. Section 30 is no substitute for sentence of imprisonment and

merely prescribes the manner

of organizing safe jail custody authorised by

s. 366. Cr.

P. C. [488F]

(4) If the prisoner desires loneliness for reflection and remorse, for prayers

ahd making peace with his maker, or opportunities for meeting family

or

friends. such facilities shall be liberally granted, having regard to the stressfull

spell of terrestial farewell his soul may be passing through, the . compassion society owes to him whose life it takes. [488HJ

(5) The crucial holding under

s. 30(2) is that a person is

not 'under

sentence of death', even if the sessions Court has sen~nced. him to death subject

to confirmation by the High Court. He

is not

'under sentence of death' even

if the High Court imposes, by confirmation or fresh. appellate infliction, death

penalty,

so long as an appeal to the Supreme Court is likely to be

9r has been

moved or

is pending. Even if

-thi_s Court ·has· awarcfed capital ~ep.tence, s. 30

9--526SC1178

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396 SUPREME COURT REPORTS (1979) ] S.C.R.

does not cover him so long as his petition for mercy to the Governor and/or

to the President permitted by the Constitution, Code and Prison Rules, has not

been disposed of. Of course, once rejected by the Governor or the President,

and on further application there is no stay of execution by the authorities, he

is 'under sentence of death', even if he goes on making further mercy petitions.

During that interregnum he attracts the custodial segregation specified ins. 30(2).

To be 'under sentence of death' means 'to be under a finally executable death

sentence'. [488H, 489A-C]

(6) Further restraint on such a condemned prisoner is not ruled out, if

c1ear and present danger of violence or likely violation of custody is, for good

reasons, made out, with due regard to the rules of fair play implied in natural

justice. Minimal hearing shall

be accorded to the affected prisoner if he is

subjected to further severity. [489D]

(7)

On the necessity for prison reform and revision of Jail Manuals held:-

(a) Section 56 must be tamed and trimmed by the rule of law 8nd shall

not turn dangerous by making prison 'brass' an

imperium in imperio.

The superintendent's power shall be pruned and his discretion,

bridled for the purpose. [489 El

(b) Under-trials shall be deemed to be in custody, but not undergoing

punitive imprisonment. So much so, they shall be accorded more

relaxed conditions than convicts. [489E]

(c) Fetters, especially bar fetters, shall be shunned

as violative of human

dignity, within and without prisons. The indiscriminate resort to

handcuffs when accused persons are taken to and from court and

the expedient of forcing irons on prison inmates are illegal and shall

be stopped forthwith save in a small category of cases. Reckless

handcuffing and chaining in public degrades, puts to shame finer

sensibilities and

is a slur on our culture. [489F]

(

d) Where an undertrial has a credible tendency for violence and escape

a humanely graduated degree of 'Iron' restraint

is permissible if-only

if-other disciplinary alternatives are unworkable. The burden

of

proof of the ground is on the custodian. And if he fails, he will

be liable in

lt.w. [ 4890]

( e) The 'iron' regimen shall in no case go beyond the intervals, condi­

tions and maxima laid down for punitive 'irons'. They shall be for

short spells, light and never applied

if sores exist. [489H]

(f) The discretion to impose 'irons' is subject to quasi-'.judicial oversights

even if purportedly imposed for reasons

of security. [490A]

(g) A previous hearing, minimal may

be, shall be afforded to the victims.

In

exceptiona.1 cases, the hearing may be soon afrer. [490 Il]

(h) The gornnds for 'fetters' shall be given to the victim. And when

the decision

to fetter is made, the reasons shall be recorded in the

journal and in the history ticket of the prisoner in the State language.

If he

is a stranger to that language it shall be communicated to him,

as far as possible, in his language. This applies to cases as much of

prison punishment

as of 'safety fetters.

[490 B-C]

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SUN!L BATRA ·-DELHI ADMN. (Krishna Iyer, J.) 397

(i) Absent provision for independent review of preventive and punitive A

action, for discipline or security, such action shall be invalid as

arbitrary and unfair and unreasonable. The prison officials will then

be liable civilly and criminally for hurt to the person of the prisoners.

The State will u.rgenUy set up or strengthen the necessary infra ..

structure and process in this behalf-it already exists in embryo in

the Act. [490C-D]

{j) Legal aid shall be given to prisoners to seek justice f.rom prison

authorities, and,

if need be, to challenge

the decision in Court-in cases

where they are too poor to secure on their own.

If lawyer's services

are not given, the decisional process becomes unfair and unreason-able, especially because the rule of law perishes for a disabled

prisoner if counsel

is unapproachable and beyond purchase. By and

large, prisoners are poor, lacking legal literacy, under the trembling

control of the jailor,

at his mercy as it were, and unable to meet

relation or friends to take legal action. Where a remedy

is all but

dead the right lives only

in print. Article 19 will be violated in

such a case

as the process will be unreasonable. Article 21 will be

infringed since the procedure

is unfair and is arbitrary.

[490E-F]

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(k) No 'fetters' shall continue beyond day time as noctural fetters on

locked-in detenus are ordinarily uncalled for, viewed from cons D

derations of safety. [490G]

(1) The prolonged continuance of 'irons', as a punitive or preventive

step, shall be subject

to previous approval by an external examiner

like a Chief Judicial Magistrate or Sessions Judge who shall briefly

hear the victim and record reasons. They are ex-officio visitors

of most Central Prisons.

[490G] E

(ttl) The Jnsvector-General of Prisons shall, with quick despatch consider

revision petitions, by fettered prisoners and direct the continuance

or discontinuance of the irons. In the absence of such prompt decision,

the fetters shall be deemed to have been negatived and shall be

removed.

[490H-491A]

(8) The Jurisdictional reach and range of this Court's Writ to hold prison F

caprice and cn1elty in constitutional leash is incontestable. Prisoner have

enforceable liberties devalued may be but not demonetized, and under on balilic

scheme, Prison Power must bow before Judge Power if fundamental freedom

are in jeopardy. Activist legal aid as a pipeline to carry to the court the breaches

of prisoners' basic rights

is a radical humanist concomitant of the rule of prison

law. And in our constitutional order it

is axiomatic that the prison laws do not

swallow up the fundamental rights of the legally unfree, and as sentinels on

G

the

qui vive, courts will guard freedom behind bars, tempered, of course, by

environmental realism but intolerant of torture by executive echelons. The

policy of the laW and the parmountcy of the Constitution are beyond purchase

by authoritarians glibly invoking 'dangerousness' of inmates and peace in prisons.

If judicial realism is not to be jettisoned, judicial activism must censor the

argument of unaccountable prison autonomy. [409H, 410A, 412G-413B]

(9) Class actions, community litigations, representative suits, test cases and

public interest proceedings are in advance on our traditional court processes

and foster people's vicarious involvement in our justice system with a broad

H

398 SUPREME COURT REPORTS [ 1979] [ S.C.R.

A based concept of locus standi so necessary in a democracy where the masses

are in many senses weak. The intervention of social welfare organisations in.

litigati\'€. proce.sses pregnant with wider implications is a healthy mediation,

between the people and the rule of law. Wisely permitted, participative justice,

promoted through mass based organizations and public bodies

with special

concern seeking to intervene, has a democratic potential for the little men and

Jaw. [414H, 4158]

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(10) Rehabilitation effort as a necessary component of incarceration is part

of the Indian criminal justice system

as also of the

United States. The custodial

staff can make a significant contribution

by enforcing the

rule of prison law and

preparing convicts for a law-abiding_ life after their release. The important

proposition

is that it is a crime of punishment to further torture a person under­

going imprisonment,

as the remedy aggravates the malady and thus ceases to be

a reasonable justification for confiscation of personal freedom and is arbitrary

because it

is blind action not geared to the goal of social defence, which

is one·

of the primary ends of in1prisonn1ent. [416H, 416C, 417Fl

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Mohanuned Giasuddin v.

State of Andhra Pradesh 1977(3) SCC 287,

Shelton v. Tucker 364 US 476 (1950) at p. 468 referred to.

( 11) The Court does not 'rush in' to demolish provisions where judicial

endeavour, p.n1e[oratively interpretational, may achiev~ both constitutionality

and compassionate resurrection. The semantic technique of updating the living

sense of a dated legislation is, perfectly legitimate, especially when, in a deve­

loping country like ours, the corpus juris is, in some measure a Raj hang over.

Courts must,

with intelligent imagination, inform themselves of the values of

the Constitution and, with functional flexibility, explore the meaning of meanings

to adopt

that Constitution which hllmane1y constitutiona.iises the statute in

question. The jurisprudence of statutory construction, especially when a vigo­

rous break with the pttst and smooth reconciliation with a rndical constitutional

value-set are the object,

uses the art of reading down and reading wide,

as part

of interpretational engineering.

[419D-E,

420E, 422B]

Weems v. United States 54 L. ed. p. 801, Harvard Law Review Vol. 24

(1970-71)

p. 54-55. R. L. Arora v. State of

Uttar Pradesh (1964) 6 SCR 784,

referred to.

(12)

Part III of the Constitution does not part company with the prisoner

at the gates, and judicial oversight protects the prisoner's shrunken fundamental

rights, if flouted upon

or frozen by the prison authority. Is a person under

death sentence, or undertrial unilaterally dubbed dangerous liable to suffer

extra torment too deep for fears

? Emphatically no, lest social justice, dignity

of the individual, equality before the law, procedure established by law and the

seven lamps of freedom (Art. 19) become chimerical constitutional clap trap.

The operation of Articles 14,19 and

21 may be pared down for a prisoner but

not puffed out altogether. The necessary

sequitur is that even a prisoner.

standing trial has basic liberties which cannot be bartered away. (

428H-429B,

429EJ

(13)

So the law is that for a prisoner all fundamental rights are an enforce­

able reality though restricted by the fact of imprisonment. When human rights

are

hashe.:1 behind bars, constitutional justice impeaches such law. [430 C-B]

A. K. <Topalan v. State of Madras 1950 SCR 88; R. C. CoiJper v. Union of

India (1971) SCR 512; Kharak Singh v. State of U.P. (1964) SCR 232~

Maneka Gandhi v. Union of India (1978) 1 SCR 218, referred to.

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 399

( 14) ls solitary confinement or similar stressful alternative, putting the

~prisoner beyond the zone of sight and speech and society and wrecking his psyche

without decisive prophylactic or penological gains, too discriminating to be valid

.under Article 14, too unreasonable to be intra vires Article 19 and too terrible to

qualify for being human law under Article 21 ? If the penal law merely

permits safe custody of a 'condemned' sentencee, so as to ensure his instant

availability for execution with all the legal rituals on the appointed day, is

not the hurtful severity of hermetic insulation during the tragic gap between the

first judgment and the fall

of the pall, under guise of a prison regulation,

beyond prison

power? [43 lF-G]

(15)

It is a certainty that a man in the death row who has invited that fate

by one murder and is striving to save himself from the gallows by frantic forensic

proceedings and mercy petitions

is not likely to make his hanging certain by

committing any murder within the prison. [434B]

(

16} A n1ere administrative officer's

deposition about 1he behavorial may be

of men under contingent sentence of death cannot weigh with us when the

limited liberties of expression and locomotion of prisoners are sought to be

unreasonably pared down

or virtually wiped out by oppressive cell insulation.

Where total deprivation of the truncated liberty of prisoner locomotion

is

challenged the validatory burden is on the State. [ 436C-D]

(17) Criminological specialists have

consistently viewed with consternation,

-the imposition

of solitary confinement punitively and, obviously, preventive ·segregation stands on a worse footing since it does not have even a disciplinary

veneer. Our human order must reject 'solitary confinement' as horrendous.

[444 H, 445

A-BJ

In re R::unanjulu Naidu AIR 1947 Mad 381 approved.

A

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James C. Colemen-Abnormal

Psychology and Modern Life p. 105 : Royal E

·Commission on Capital Punishment 1949-1953 Report pp. 216-217.

Law Commission

of lndia-42nd Report. Referred to.

(18) Petitioner

is under 'statutory confinement' under the authority of

·section 30(2) of the Prisons Act read with section 366(2) Cr. P.C. It will be a

stultification

of judicial power if, under guise of using section

30(2) of the

Prisons Act, the Superintendent inflicts what is substantially solitary confinement

·. which is a species of punishment exclusively within the jurisdiction of the

criminal court. Held Petitioner shall not be solitarily confined. [447B]

(19) Law

is not a formal label, nor logomachy but a working technique

·-of justice. The Penal Code and the Criminal Procedure Code regard punitive

solitude too harsh and the Legislature cannot be intended to permit preventive

, 'SOiitary confinement, released even from the restrictions of Sections 73 and 74

IPC, Section 29 of the Prisons Act and the restrictive Prison Rules. It would

'·be extraordinary that a far worse solitary confinement, marked as safe custody,

sans .maximum, sans intermission, sans judicial oversight

or natural justice,

would be sanctioned. [447D-E]

(20) Section 30 of the Prisons Act can be applied only to a prisoner "under

sentence of death". Section 30(2) which speaks of ''such" prisoners necessarily

relates to prisoners under sentence

of death. We have to discover when we can

designate a prisoner as one under sentence

of death.

Confinement inside a

'prison does not necessarily impart cellular isolation. Segregation of one person

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400 SUPREME COURT REPORTS [1979] 1 S.C.It.

A all alone in a single cell is solitary confinement. That is a separate punishment

which the Court alone can impose. It would be a subversion of this statntory

provision (Section 73 and 74 IPC) to impart a meaning to Section 30(2) of the

Priscns Act whereby a disciplinary variant of solitary confinement can be

clamped down on a prisoner, although no court has awarded such a punish­

ment. [448B, 448D]

B (21) "Apart from alJ other prisoners" used in Section 30(2) is also a phrase

c

of flexible import, segregation into an isolated cell is not warranted by the word.

All that it connotes is that in a cell where there are a plurality of inmate~. the

death sentencee

will have to be kept separated from the rest in the same cell

but not too close to the others. And this separation can be effectively achieved

because the condemned prisoner will be placed under the charge of a

guard

by way and by night. [448-F-G]

(22) Prison offences are listed in section 45 and section 46 deals with punish­

ment for such offences. Even if a grave prison offence has been committed,

the punishment does not carry segregated cellular existence and permits life in

association in mess and exercise

in view and voice but not in communication

with other prisoners.

Punitive separate confinement shall not exceed three

months, and section 47 interdicts the combination of cellular confinea:rent and

D "separate confinement" "Cellular confinement" is a stricter punishment than

separate confinement and it cannot exceed

14 days because of its rigour.

Less

severe is cellular confinement under section 46(10) of the Prisons Act and uD.O'er

section 46(8). Obviously, disciplinary needs of keeping apart :'I prisoaner do not

involve any harsh element of punishment at

all. An analysis of the provision

of the

Penal Code and of the Prisons Act yields the clear inference that section

30(2) relates to separation without isolation, keeping apart without close con-

E finement. [449B, 450B-C, 450F, 450H]

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(23) The Court awards only a single sentence viz. -death. But it cannot be

instantly executed because its executability is possible only on confirmation by

the High Court. In the meanwhile, the sentencee cannot be let loose for he

must

be available for decapitation when the judicial processes are

exhausted.

So it is that section 365(2) takes care of this awesome interregnum by com­

mitting the convict to jail custody. Form 40 authori~·es safe keeping, The

'safe keeping' in jail custody

is the limited jurisdiction of the jailor. The

con­

vict is not sentenced to imprisonment. He is not sentenced to solitary confine­

ment. He is a guest in custody in the safe keeping of the host-jailor until the

terminal

hour of terrestial farewell whisks him away to the halter. The

inference

is inevitable that if the 'condemned' man were harmed by physical

or mental torture the law would not tolerate the doing, since injury and

!'mfety

are obvious enemies. To distort safe-keeping into a hidden opportunity to

cage the ward and to traumatize him

is to betray the custody of the law.

Safe­

keeping means keeping his body and mind in fair condition. To torture his mind

is unsafe keeping. Injury to his personality is not safe keeping. To preserve

his flesh and crush his spirit is not safe keeping. Any executive action which

spells infraction of the life and liberty of a human being kept in prison precincts~

purely for safe custody, is a challenge to the basic notiOn of the rule of law­

unreasonable, unequal, arbitrary and unjust. (451 D-H, 452B, D.F]

(24) A convict

is 'under sentence of death' when, and only when,

the

capital genalty inexorably operates by the automatic process of the law.

'

•

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•

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 40 I

Abdul Azeez v. Karnataka [1977] 3 SCR 393 : D. K. Sharma v. M. P. Stal< A

[1976] 2 SCR 289 referred to. [4540]

( 25) A self-acti

1ag sentence of death does not come into existence in view

of the impediment contained in section 366 ( 1) even though the Se~ions Court

might have pronounced that sentence. Assuming that the High Court has con­

firmed that death sentence or has de novo imposed death sentence, even then,

there

is quite a likelihood of an appeal to the Supreme Court and when an B

appeal pends against a

conviction and sentence in regard to an offence punish-

able with death sentenCe such death sentence even if confirmed by the High

Court shall not work itself , until the Supreme Court has pronounced judgment

Articles 72 rnd 161 provide for commutation of death sentence even like

sections 433, 434 and 435 Cr. P.C. Rules

547 and 548 made under the

Prison

Act, provide for a petition for commutation by the prisoner. It foUows that

during the pendency of a petition for mercy before the State Governor or the C

President of India' the death sentence shall not be executed. Thus, until rejection

of the clemency motion

by these two high dignitaries it is not possible to predi-

cate that there

is a self-executory death sentence and he becomes subject to it

only when the clemency

applicl.ltion by the prisoner stands rejected. [455B-

D, 456B, H, 457A]

(26). The goals of prison keeping, especially if it is mere safe keeping, can

be attained without requiring a prisoner to live in the exacerbated conditions

of bare-floor solitude. Functionally speaking, the court has a distinctive duty

to reform prison practices and to inject constitutional consciousness into the

system.

Sastre v. Rackefeller 312F.

Suppl. 863 (1970). Wolfe v. Mc

Donnell 41 I.. Ed. 2d. p. 935. [465 B-Cl

(27) The great problems of law are the grave crises of life and both can be

solved not by the literal instructions of printed enactments but by the inter­

pretative sensitization of the heart

to 'one still, sad music of humanity. [4710]

(28) . The humane thread of jail jurisprudence that runs right through is

that no prison authority enjoys amnesty for unconstitutionality and forced

farewell to fundamentaJ right

is an institutional outrage in our system where

stone walls and iron bars shall bow before the rule of law. [471H-472A]

(29) Many states like Tamil Nadu, Kerala etc. have abandoned the disci­plinary barbarity of bar fetters. The infracticu of the prisoner's free<lon1 by

bar fetters

is too serious to be viewed Jightly and the t+asic features of reason­

ableness must

be built into the administrative process for constitutional surviva1.

Therefore, an outside agency,

in the sense of an officer higher than the Superin­

tendent or external

~o the prison department, must be given the power to review

the order of 'irons'. Rule 423 speaks of the Inspector General of Prisons having

to

be informed of the circumstances necessitating fetters and belcbains. Rule

426 has a similar import. A right of appeal or revision from the action of the

Superintendent to the Inspector

Geni!ral of Prisons and quick action by way of

review are implicit

in the provisions. [477D,

477F·478A]

D

E

F

G

(30) One of the paramount requirements of a valid law is that it must be

within the cognizance of the community

if a competent search for it were made. H

Legislative tyranny may be unconstitutional if the

State by devious methods

like pricing legal publications monopolised by government too high denies the

402 SUPREME COURT REPORTS [ 1979] l s.c.R.

A equal protection of the laws and imposes unreasonable restrictions on exercise

of fundamental rights [485G, 486B]

B

c

D

Bhuvan Mohan Patnaik v. State of A.P. [1975] 3 SCC 185, 189.

(31) The roota of our Constitution lie deep in the finer spiritual sources of

social justice, beyond the melting pot of bad politicking, feudal crudities and

sublimated sadism, sustaining itself

by profound faith in Man and his latent

divinity, and so it

is that the Prisons Act provisions and

the Jail Manual itself

must

be revised to reflect this deeper meaning in

the behavioral norms,

correctional attitudes and humane orientation for the prison staff and prisoners

aliko. [492E]

ARGUMENTS

For the Petitioner in Writ Petition No. 2202 of 1977.

1. Section 30 by its language does not enjoin the jail authorities to confine

a prisoner under sentence of death to solitary confinement.

It provides

that a

prisoner under sentence

of death should be confined in a cell apart from all

other prisoners

aiid shall be placed day and night under the charge of a guard.

Such a prisoner is entitled to participate in all the recreational and rehabilitation

activities

of the jail and is also entitled to the con1pany of other prisoners.

2. Section

30 requires that a prisoner "under sentence of death.. shall be

confined in the rllanner prescribed by sub-section (2). The expression '.under'

sentence of death' also oc·.:::urs ins. 303 1.P.C. In [1976] 2 SCR 289 the Suprcn1C

Collrt held tha'.t the expression 'must be restricted to a sentence which is final,

conclusive and ultimate so far as judicial remedies are concerned'. As

far as

death sentence

is concerned the trial does not end in the Sessions Court and

E confirmation proceedings in the High Court are

a continuation of the trial,

[1975] 3 S.C.R. 574. In other words until the High Court confirms a sentence

of death, there is no operative executable sentence of death. Article 134 of

the Constitution also provides for an appeal

to the Supreme Court in certain

cases where the High Court has awarded death penalty.

F

3. The conditions of solitary confinement have the

t~~dency of depriving a

prisoner of his normal faculties MJ.d may have the tendency to destroy a

prisoner's mentality. Justice, Punishment, Treatment by Leonard Orland 1973

Edn. 297, 307-308: Havelock Ellis,-The Criminal p. 327; History of solitary

confinement

and its effects-134

US 160.

4. Solitary confinement is imposed as a punishment under sections 73 and 74

I.P.C. and under the Prisons Manual as a matter of prison discipline. It does

not exceed

14 days at a time. In the case of prisoner who is under a sentence <i of death, as construed by the jail authorities, however, such confinement con­

tinues over long periods.

11

5. The Law Commission of India in its 42nd Reports at p. 78 has recom·

mended the abolition of solitary confinement. Courts have also condemned it.

A.LR. 1947 Mad. 386; 134 US 160. 167, 168.

6. There are compelling reasons that a narrow construction should be put

on Sec.

30 which will reduce the extreme rigour and penahy of the law. Only

a court has the authority to inflict a punishment. The jail authorities do not

have a right to inflict any punishment except as a matter

of jail discipline. As

•

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SUNIL BATRA V'. DELHI ADMN. (Krishna Iyer, J.) 403

· s. 30 empowers the jail authorities to impose an additional punishment of solitary A

confinement, it is submitted that it is violataive of Art. 20( 1) of the Constitution.

7. The expression under 'sentence of death' should be constt.i:ed to mean

, 'under a fi~1al executable, operative .sentence of death'. There is legislative injunc­

tion against the execution of a sentence of death in Ss. 366, 413, 414, 415, 432

and 433 Cr. P. C. A sentence of death cannot be executed till the appeal, if any,

has been finally disposed of by the Court. A prisoner has also the right to

make mercy petitions to the Governor or the President as the case may be.

Para 548 of the Prison Rules provides that in no case is the sentence of death

to be carried out before the Government's reply to the mercy petition is received.

Till this time arrives, a prisoner under sentence

of death is entitled to be treated

as a human being with a hope for the future, entitled

to struggle for rehabilita·

tion. Till the final stage has

2.rrived, such a prisoner ca1u1ot be treated as a

· lost, condemned human being.

8. Section 30 is violative of Art. 14 of the Constitution. It imposes the

penal~y of solitary confinement on condemned prisoners without any distinction.

The Prison Manual does contain provision for dangerous prisoners who OX.y,

as a matter of prison discipline, be kept in solitary confinen1ent. Failure to make

a distinction between a safe prisoner under sentence

of death and a hostile and dta.ngerous prisoner introduces arbitrariness in the treatment accorded to prisoners

under sentence

of death and thus is violative of Article 14.

9. A prisoner is not

det1rived of his personal liberties [1975]2 SCR 24.

Article

21 is subject to Article 14. [1978] 1

S.C.C. 248. The expression 'life'

as used in Article

21 means

fiomething more than mere animal existence and

·the inhibition against ~ts deprivation extends to all those limits and faculties by

which life

is enjoyed.

.For

t!ie Respondent in W.P. 2202/77

J. Criminal !law of T ndia recognises capital punishment. It is awarded in

very few case~. It is tiot the rule but rather the exception, [1974) 3 S.C.R. 340.

2. Death penalty has been upheld as constitutional in [1973] 2 S.C.R. 541.

B

c

D

E

Section 354 (3) Cr. P.C. of 1973 requires the recording of r~asons for infliction F

of death penalty.

3. There is no provision for substantive due process in the lnrl.ian Constitu·

tion. [1950] S.C.R. 88, [1973] 2 S.C.R. 541/548.

4. A prisoner is not a slave of the State and is not denudcC. of all funda­

mental rights. Lawful inc~eration bring:; about the necessarv \Vithdrawal or

limitation of .many rights and makes them unavailable to pris~ners. Prisoners G

havl! less than the full panoply of freedoms \Vhich private persons would have

in a :ion-prison situation. Prison regulations and prison discipline and considera-

tions underlying our penal system necessitiate restrictions being imposed. 92L, ed.

1356, 40 L. ed. 224, 238-24; 41L ed. 935. 950, 954, 957, '1975] 2 S.C.R. 24.

5. Solitary confinement is complete isolation of the prisoner from all human

society and confinement

in a cell so arranged that he has no direct intercourse H · or right of any human being or no employment or instruction. Webster's Third

"New International Dictionary Vol. Ill p. 2170, 33L ed. 835, 839.

A

404

6. lt is a

Section 30(2)

SUPREME COURT REPORTS (1979 J I S.C.R.

misnomer to characterise confinement in a cell a~ provided in

read

with Chapter 31 of the Jail

Mooual as solitary confinement.

7. There is a fundamental distinction between solitary confinement imposed

as a punishn1ent or an additional punishment and confinement of prisoner under

sentence of death in a separate cell, for the purpose of preventing his suicide

or escape and for ensuring the presence of the prisoner on the day appointed

B for execution.

8. The expression "under sentence of death" in seciion 30(2) means under

sentence of death which is executable and which is finally conclusive and ultimatc­

•O far as judicial remedies are concerned. [1976] 2 S.C.R 289, [1977] 3 S.C.R.

393. Section 30(2) should be so construed and its implications worked out

having regard to Sections 413-415 Cr. P.C.

E 9. The rat.ionale underlying section 30(2) and Chapter 31 of the Manual'

is that prisoners under sentence of death, present problems peculiar to such

persons which warrants their separate classification and treatment as a measure

of

jail administration and jail discipline. Prisoners under sentence of. death are

in a class by themselves and their separate c1assification has been recognised

over the years in India and other civilized countries. Even

in countries where

solitary confinement as a form of punishmtnt has been abolished, confin..:ment

D of prisoners under sentence of death continues. [Halsbury's Laws of England

Vol. 30 p. 601, para 1151, U.K. Prison Rules 1964 (r.r. 74-76].

F

G

II

10. The fundamental distinction between imposing solitary confinement 85 L

punishment and as a .,_ecessary measure of jail discipline is recognised in the

42nd Report

of the Law Commission. (para

380).

11. Section 30(2) so construed is not violative of Article 14. The failure·

to sub-classify does not involve breach of Article 14.

12. In the United States, solitary confinement even as a punishment by itself

has been consistently held to be not violative of the VIII Amendment. Wh&t

the Courts have struck down is the particular system of solitary confinement

if it is implemented and maintained in an inhuman or barbarous manner. Con­

ditions in jail may not be perfect or ideal but the sam!! cannot be said to be

sub-human or violative of human dignity of prisoners. Certain matten may

urr,entl~- ca11 for reform but that does not brand the Regulations as unconstitu­

tional.

For

the Petitioner in Writ Petition No. 565177

L (a) The petitioner who is an under-trial prisoner is a Fre'lch National

and not bein!!' a citizen of India certain fundamental rightci like Article 19 are

not av:iilable to him. But as a hun1an being he is entitled ot the ba:sic rights

which are enshrined in Articles 14. 20, 21 and 22 of the Constitution.

(b) The petitioner who was arrested on 6th July 197'5 alongwith four other

foreigners has be-en kept under bar fetters 24 hours a day and they are welded on

hin1 ever ~ince his arrest.

2. The petitioner seeks to cha11enge Paragraph 399(3) of the Punjab Jail

Manu~J and Section 56 of the Prison Act, as violative of the petitioner's funda­

mental right under Articles 14 and 21 of the Constitution. The following facts

indicate the brutality inflicted by the respondents on the Petitioner.

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SUN!L BATRA v. DELHI ADMN. (Krishna Iyer, J.) 405

r •.

(a) By continuous wearing of bar fetters, there were wounds on his ankles A

and he represented" to the jail authority to remove them. As no relief was

obtained, the petitioner

filed a writ petition in the Delhi High Court challenging

the conditions of his

detention but the High Court dismissed the same as not

maintainable on February

2, 1977 relying on 1972(2)

S.C.R. 719. As such

despite his wounds the petitioner had to suffer.

(b) The Jailor ordered removal of bar fetters in February 9, 1977 for 15 B

days but jail authorities in violation of medical Bdvice put bar fetters after 9

days i.e. 18th February 1977. The respondents thereby violated the mandatory

provisions of the Act.

(c) the Punjab Jail Manual is totally an out-dated enactment inasmuch

as even after

30 years of Independence, paragraph 576(d) (1) makes the

wear~

ing of Gandhi Cap by prisoners a jail offence and 1313.Tagraph 63010) permits C

inhuman punishment like beating, besides putting bar fetters under paragraph

399 read with section 56 of the Prison Act.

LEGAL SUBMlSSlONS

l. A person in jail is already 'subject to enormous curtailment of his

liberties. The protection of whatever liberties are left inside the jail demand

that they d.Hlnot be taken away arbitrarily and without the procedure established

by

laws. The greater the restriction, stricter-should be the scrutiny of the Court,

so that

the prisoner is not subjected to unnecessary and arbitrary loss of his

remaining liberties.

2. Paragraphs 399 and 435 of the

Punjab Jail Manual are not lnws under

Article

13 ( 3) of the Constitution of India and are void as they restrict personal

liberty without the authority of law under Article

21 of the Constitution. These

provisions by which bar fetters can be put on a prisoner, severely curtailing

his liberty of movement

of limbs, on the ground that he is dangerous and as

long

as the jail authorities consider it necessary are void as they do not have

authority of

law. (1964) 1 SCR 332, 338, 339, 345.

3. <a) Section 56 of the Prison Act is a.rbitrary inao;much as it :1.llows the

D

E

Jail authorities to choose any type of irons to be put on any prisoner. Jn pains F

425 and 614 of the Punjab Jail Manual, 3 types of irons are mentioned; hand-

cuffs \Vcighing 2 lbs., link fetters v:eighing 2 lbs and bar fetters weighing 5 lbs.

Section 56 docs not give any guide-line as to which fetters are to be put on a

prisoner who

is considered dangerous. Thus similarly situated

pri<.ioners can

be discriminated under the section.

(b) Since section 56 which allows the Prison Authority to put irons on

prisoner§ depending upon the state of the prison it is violative of Article 14 as

well as Article 21, because if the prisoner is fortunate to be imprisoned in a

well-guarded modern Jail he would not

be put under irons, while a similarly

situated

pri(',()ner who is unfortunate to be put in a dilapidated jail, he would

be made to suffer by being put under irons.

(c) Section

56 is

ultra vires of Articles 14 and 21 because it allows the

Jail authorities to put irons on the personal assessments

as

"to the character of

prisonef8." The section thereby gives complete power to pick and choose

prisoners for being confined in irons.

G

H

406 SUPREME COURT REPORTS [ 1979 J l S.C.R.

A (d) Section 56 of the Prison Act and paragraph 399 of the Jail Manual,

B

c

D

which restrict personal liberty, in So far as they abridge and take away funJa­

n1ental rights under Article

14, will have to meet the

cha!lenne of that Article

otherwise it is not a valid law. [1967] 3 S.C.R. 28/46; [1970] 3 S.C.R. 530/546

and [1978] 1 S.C.R. 248/323.

4. Paragraph 399(3) of the Manual and section 56 of the Prison Act which

impose inhuman and cruel restriction<.; and subjects the petitioner to torture more

than those who are punished for jail offences are not laws when judged from

the evolving standards of decency and present concept of civilization. When

bar fetters are to be used as punishment they cannot be put continuously for

more than 3 months vide paragraphs 616 and 617, while under impugned para­

graph 399 and under section 56 of the Prison Act they can be put indefinitely.

5. When a prisoner is subject to cruel and inhuman treatment the Court

has the power and jurisdiction to interfere because

of its sentencing function,

since the prisoner

is behind bars by the order of the Court. Hence the

condi­

tion of his confinement is the continuing responsibility of the Court.

6. In view of the Preamble and Article 51 of the Con:;.titution. which obli­

gate the State to respect human dignity and foster respect for international law

and obligations, the Courts have

a constitutional duty in interpreting

provisions

of domestic laws to give due regard to international lnw and country's inter­

national obligations.

7. This

is also because the judicial process is a part of the

State activity vide

Article

12 of the Constitution, and the directive principles are addressed as

much

to the Executive and the Legislature as they are to the judiciary.

8. When domestic law is applied to a

foreigl)er there is a presumption that

E the legislature intends to respect rules of international law and country's inter­

national obligations.

70 ER 712/716; [1960] 3 All. E. R. 814/821; 1891 (I) Q.B.D. 108/112.

9. In interpreting statutes particularly ancient penal stll:tutes, it is the duty of

the cou1i to interpret it in a broad and liberal sense in the light of prevailing

conditions and prefer

a construction which is favourable to the individual.

F [1953]

S.C.R. 825/847; A.I.R. 1961 S.C. 1494, 1968 S.CR .. 62.

For the Respondent in Writ Petition Jllo. 565177

l. Challenge to Sec. 56 of the Prisons A~t 1894 must be judged in the

context

of the subject matter of the legislation viz.

"Prisons".

2. Maintenance of penal institution (Prison) is ain essential function of

G government for preservation of social order through enforcement of criminal

law.

3.

One of the primary and legitimate goals of any penal institution is the

maintenance

of institutional security against escape of the prisoner from the care

and custody

of the penal institution to which he

bias been lawfully committed

40 L. ed. 2nd 234, 235, 239; 41 L. ed. 2nd 495, 501, 502.

H 4. There must be mutual accommodation between institutional needs and

constitutional provisions. Not unwisdom but unconstitutionality

is the

touch­

stone, 41 L. ed. 2d. 935, 951, 954.

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 407

5. Several features of prison administration may be undesirable or ill-advised A

but that cannot result in condemnation of the statute as unconstitutional, [1975]

2 S.C.R. 24, 28; 40 L. ed. 2d 224, 235. Courts are ill-equipped to deal with

the increasingly urgent problem of prison administration and reform.

6.

Power under section 56 call: be exercised for reasons and considerations

which are germane to and carry Out .the objective of the statute, namely, "safe

custody of prisoners". The following conditions must be fulfilled before power

under section

56 is exercised

(a) Existence of necessity, as opposed to mere expediency or convenience,

for confining prisoners in _irons,

ll~Guj. L. R. 403, 413.

( b) The determination of necessity to confine prisoners in

made with reference to definite criteria namely, state of the

character of the prisoners.

irons is to be

prison or the

(c) The expression

"character of the prisoners" in the context and on a

true construction

is referable to past or present characteristics or attributes of a

prisoner \vhich have a

rationa.i. and proximate nexos with and are germane to

considerations regarding safe custody of prisoners and preventing their escape.

B

c

(d) The determination must be made after application of mind to the D

peculiar and spetial characteristics of

each individual priSoner.

(e) The expressions, "dangerous ·prisoners" or "unsafe prisoners'' has a

definite and

well recognised connotation in the context of prison legislation and

prison literature.

(f)

Under para 399 (3)(e), special reasons for having recourse to fetters

are required to be fully recorded in the Superintendent's journal and noted in E

the prisoner's history ticket. Decisions regarding imposition of fetters have to

be reviewed from time to time, in order to determine whether their continued

imposition

is

warranted by consideration of security (vide para 435).

(g)

Para 69 of the Jail Manual provides for a revision to the

Inspector~

General against the order of the Superintendent.

(h) Prisoner can also avail of redress under para 49 read with para 53B of F

the Manual.

(i) Determination of the Superintendent is_ open to judic,ial review on the

principles laid down in (1966] Supp. S.C.R. 31! and (1969] 3 S.C.R. !08.

(j) Power under section 56 is not punitive in nature but precautioOOry in

character.

8. If the legislative policy is clear and definite, discretion vested in a body

of administrators or officers to make selective application of the law does not

infringe Article

14. A guiding principle has been laid down by section 56 which

has the effect of limiting the application of the provision to a particular category

G

, of persons, (1975] l S.C.R. I, 21, 22, 23, 48-53.

9. There is a presumption in favour of constitutionality of statutes, [1959]

S.C.R. 279, 297. This presumption applies with grea.ter force when the statute H

llnder consideration is one dealing with prisons and maintenance of internal

security in penal institutions.

~08 SUPREME COURT REPORTS [1979] 1 S.C.R,

A. 10. It is not open to the petitioner to challenge section 56 on the ground

B

that power can be exercised with reference to "the state of prison", inasmuch

as no action based on that part of the provisions is taken against the petitioner

[1955] 1 S.CR. 1284, 1295.

11. There is no provision in our Constitution corresponding to VIlI Amend­

ment of the U.S. Constitution, [1973] 2 S.C.R. 541, 548.

12. There is also no provision for substantive due process in the Indian

Constitution.

[1950] S.C.R. 88; [1973] 2 S.C.R. 541. 548.

ORIGINAL JURISDICTION : Writ Petition Nos. 2202 and 565 of t··

c 1977. " •

Under Article 32 of the Constitution.

Y. S. Chitale (A.C.), Randhir Jain, M. Mudgal and G. K. B.

Chowdhury

(A.C.) for the petitioner (in

W.P. No. 2202/77).

D N. M. Ghatate, S. V. Deshpande, Sumitra Ba1111erjee & M. K. D.

Namboodiry for the petitioner (in W.P. No. 565 of 1977).

Sol! J. Sorabjee, Addi. Sol. Genl., K. N. Bhatt, R. N. Sachthey

and Girish Chandra for the petitioner (in W.P. No. 2202177)

Soli J. Sorabjee, Addi. Sol. General, E. C .Agarwala and Girish

E Chandra for the respondents (in W.P. 565/77).

V. M. Tarkunde, P. Ii. Parekh for the Intervener (in W.P. No.

565/77).

The following Judgments of the Court were delivered :

KRISHNA IYER, J.-The province of prison justice, the conceptu-

F alization ·of freedom behind bars and the role of judicial power as

constitutional sentinel in a prison setting, are of the gravest moment

in a world of escalating torture by the minions

of State, and in India,

where this virgin area of jurisprudence

is becoming painfully

rele­

vant. Therefore, explicative length has been the result; and so it

is that, with all my reverence for and concurrence with my learned

G brethren on the jurisdictional and jurisprudential basic& they have

indicated, I have preferred to plough a lonely furrow.

The

Core-m1estions.

One important interrogation lies at the root of these twin writ

fl petitions : Does a prison setting, ipso facto, out-law the rule of

law, lock out the judicial process from the jail gates and declare a

long holiday for human rights

of convicts in confinement, and

(tO

____ _.

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SUNIL BATRA v. DEi.HJ ADMN. (Krishna Iyer, J.) 409

change the matapho'r) if there is no total eclipse, what luscent seg­

ment is open for judicial justice? Three inter-related problems

project

themselves : (i) a juridictional dilemma between 'hands off

prisons' and 'take over jail administration' (ii) a constitutional con­

flict between detentional security and inmate liberties and (iii) the role of processual and substantive reasonableness in stopping brutal

jaif conditions. In such !Yasic situations, pragmatic sensitivity,

belighted by the Preamble to the Constitution and balancing the

vulnerability of 'caged' human to State torment and the prospect

of escape or internal disorder, should

be the course for the court to

navigate.

I proceed to lay

bare the broad facts, critically examine the legal

contentions and resolve the vital controversy which has profound im­

pact

on our value system. Freedom is what Freedom does-to the

last and the least-Antyodaya.

Two petitioners-Batra and

Sobraj--one Indian and the other

French,

one under death sentence and the other facing

grave charges,

share too different shapes, the sailing and arrows of incarceratory

fortune, but instead of submitting to what they describe as shocking

jail injustice, challenge, by separate writ petitions,

such traumatic

treatment

as illegal. The soul of these twin litigations is the ques­

tion,

in spiritual ·terms, whether the prison system has a conscience

in constitutional terms, whether a prisoner, ipso facto, forfeits person­

hood to become a rightless slave of the State and, in cultural terms,

whethei man-management of prison society can operate its arts by

'zoological' strategies. The grievance of Batra, sentenced to death

by the Delhi Sessions Court, is against de facto solitary

conjinement,

pending his appeal, without de jure sanction. And the complaint

of Sobraj

is against the distressing disablement, by.bar fetters, of men

behind bars especially of undertrials, and that for unlimited duration,

on the

ipse dixit of the prison

'br'!§.s'. The petitioners, seek to

use the rule of law to force open the iron gates of Tihar Jail where

they are

now lodged, and the

Prison Administration resists judicial

action,

in intra-mural matters as forbidden ground,. relying on sec­

tions

30 and 56 of Prisons Act, 1894 (the Act, hereafter). The

Petitioners

invoke articles 14, 21(and 19, in tl1e case of Batra) of

tl1e Constitution.

The paramount law. Prison discipline and judicial oversight.

A

B

c

E

F

G

The jurisdictional reach and range of this Court's writ to

hold H

prison rnpricc and cruelty in constitutional leash is incontestable, but

teasing intrusion into administrative discretion is legal anathema,

/

A

B

c

D

E

F

G

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410 SUPREME COURT REPORTS S.C.R.

absent breaches of constitutional rights or prescribed procedures. Pri­

soners have enforceable liberties devalued may be but not demone­

tized; and under our basic scheme, Prison Power must bow before·

judge Power if fundamental freedoms are in jeopardy. The prin­

ciple

is settled, as some American decisions have

ne' !Y put it.(').

"The matter of internal management of prisons or cor­

rectional institutions is vested in and rests with the hands

of those institutions operating under statutory authority and

their acts and administration of prison discipline and over­

all operation of the institution are not subject to court super­

vision or control absent inost unusual circutnstances or ab­

sent a violation of a constitutional right." But Corwin

notes.(")

"Federal courts have intensified their oversight of State

penal facilities, reflecting

a heightened

concern with the ex­

ten! to which the ills that plague so-called correctional insti·

tution-<Jvercrowding, understaffing, unsanitary facilities,

brutality, constant fear of violence, lack of adequate medi­

cal 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 "crncl and unusual punish­

ments."

The 'hands-off' doctrine is based on the fallacious foundatiom

stated

in

1871 in Ruffin v. Commonwealth :

"He has, as a consequence of his crime, not only for­

feited his liberty, hut a11 his personal rights except those

which the law

in its humanity accords to him. He is for the

time being, the slave of the

State."(")

During the century that followed, the American courts have whittled'

away at the doctrine and firstly declared in

Jordan(') that when

the­

responsible prison authorities. . . . have abandoned elemental con-

(1) Federal Reporter 2d. Series, Vol. 386, p. 684; Donnel Dougfa'i v. Maurice--

ff. Sigler.

(2) Supplement to Edward S. Corwin's. The Constitution p, 245.

(3) 62 Vs . (21 Gratt) 790, 796 (1871)

(4) 257 Fed. Suppl. 674 Jordan ,., Fitzharris (N. D. Cal. 1966)1

•

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Ill

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, l.) 411

~epts <Jf t!elency by permitting conditions to prevail of a shocking and A

debased nature, the:i the. .courts must interveni: promptly to restore the

primal rules

of a

civilized ~ommunity in accord with the mandate of

the Constitution of the United States.

In Coffin v. Reichard, the court was persuaded to intervene when,

while lawfully

in custody a prisoner is deprived of some right the

loss of which makes his

imprisonment more burdensome than the law

permits :

"When a man po>sesses a substantial right, the Courts

will be diligent in finding a way to protect iL The fact that a

person is legally in prison does not prevent the use of habeas

corpus

to protect his other inherent

rights."

ln John v. Dys, the Court again held it preferable "that ~ poten­

tially dangerous individual

be set free than the least degree of

mod

impairment of an individual's basic constitutional rights be permitted.

Thus, the constitutionality

of imprisonment, its duration, and ccndi-

B

c

tions can be validity tested by means

of habeas corpus. D

The harshest blow to •he old 'hands-off' doctrines was 'truck by

Vlanree v. Pepa, 365, US 167, 5 L.Ed. 2d, 492 (1961).

Where the court insisted on "civilized standards of

humane decency" and interdicted the subhuman condition E

which could only

serve to

de•troy completely the spirit and

undermine the sanity

of the prisoner.

By 1975, the

United Star1's Supreme Court sustained the indubit-

able proposition that. constitutional rights did not desert convicts but

dwindled in scope. A

few sharp passages from Eve

Pall(') opinions F

and some telling observations from

Charles Wolff(') nail the argu­

ment that prisoners are

non-persons.

Mr. Justice Steward, who delivered the opinion of the Court in

Eve Pell observed "Courts cannot, of course, abdicate their consti­

tutional responsibility to delineate and protect fundamental liberties. G

But when

t11e issue involves a regulation limiting one of several means

of communication by an inmate, the institutional objectives

furthered

by that regulation and the measure of judicial deference owed to cor­

rections

officials in their attempt to serve these interests are relevant

in gauging the validity

of

tbe regulation."

(I) 417 US 817 41 Ed. 2d. 495 .

. (2) 41 L. Ed. 2d. 935.

I 0-526SCJ178

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412 SUPREME COURT REPORTS (1979] 1 S.C.R.

A Mr. Justice Douglas. in his dissenting view, stated "Prisoners are

B

c

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F

still 'persons' entitled to all constitutional rights unless their liberty has

been

co11st1tutionally curtailed by procedures that satisfy ali the

re­

quirements of due process, (emphasis, added).

In the later case of Charles Wolff, the court made emphatic state­

ments driving home the same poiµt. For instance, Mr. Justice White,

who spoke for the, Court, observed : "Lawful imprisonment neces­

sarily makes unavailable riony rights and privileges of the ord<nary

citizen, a "retractio11 justift~d by the considerations underlying our

penal system. But though his rights may be diminished by environ-

n1ent, a prisoner is not \vhoH)' stripped of constitutional pro1('.ctions

when he is in1prisoned for crime. There· is no: lron \curtain drawn bet-

when the Constitution and the prisons of this coulllry, ...... In sum

there must be mutual acccnn1nodation between institutional needs and

objectives and the provisions of the Constitution that are of general

application.,.

Mr. Justice Marshall expressed himself explicitly "I have pre-

viously stated my view that a prisoner does not shed his basic consti­

tutional rights at th~ prison gatt:, and I fully $Upport the court's holding

that the interest of inmates in freedom from imposition of serious dis­

cipline is a 'liberty' entitled to due process protection.''

Mr. Justice Douglas, again a dissenter, asserted : "Every prisoner's

liberty i.e., of course, circumscribed by the very fact of

his

confine­

ment, but his interest in the limited libertyleft to him is then cnly the

more substantial. Convictic11 vf a crime does not render one a non­

person whose rights are ,<·u/Jject to the whim of the prison administra­

tion, and therefore,

the imposition of any serious punishment within

the prison system requires procedural safeguards.

Of course, a bearing

need not be held before a prisoner

is subjected to some minor

dep­

rivation, such as an evening's loss of television privileges. Placenient

in solitary confinement, however, is not in that category."

I may now crystalise this legal discussion. Disciplinary autonomy,

in the hands of mayhem-happy jail staffers, may harry human rights

G and the wails from behind the high walls will not easily break through

the sound-proof, night-proof barrier

to awaken the judges' writ

juris­

diction. So, it follows that activist legal aid as a pipeline to carry to

the court the breaches of prisoners' basic rights

is a radical humanist

concomitant of the rule

of prison law. And in our constitutional order

it

is axiomatic that the prison laws do not swallow up the fundamental

H rights of the legally unfree, and, as sentinels on the

qui vive, courts

will guard freedom behind bars, tampered, of course, by envir~nmen­

tal realism but intolerant of torture by executive echelons. The policy

'

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{

SUNIL BATRA VI DELHI ADMN. (Krishna Iyer, J.) 41 3

of the law and the paramountcy of the constitution are beyond pur- A

chase by authoritarians glibly invoking 'dangerousness' of inmates

and peace in prisons.

If judicial realism is not to be jettisoned, judicial activism must

censor

the argument of

unaccountable prison autonomy.

'Dangerousne5s' as a cover for police and prison atrocities is not

unusual, as a recent judicial enquiry by Mr. Justice Ismail in a Tamil

Nadu prison indicates :

"The black hole of Calcutta is not a historical past but

a present reality. The Report

finds the detenus were

deliberately lodged in the nineth block which was previously

occupied by leprosy prisoners.

On the night of February 2, "there were brutal, merci­

less and savage beatings

of the detenus in the nineth

block",

earlier in the afternoon, the Chief Head Warder went to the

block and noted down the names

of the detenus and the cells

in which they were locked up. The exercise was undertaken.

The Judge

finds that

"the beating of the detenua that took

place

on the night of February 2, 1976 was a premeditated,

pre-planned and

delibente one and not undertaken on the

spur of the moment either

because of

any provocatwn

offered by the detenus

to go into the cells as contended by

the jail

officials."

{Other lurid judicial reports from other States also have

appeared.)

After all, though the power vests in the Superintendent, it is trig­

gered by the guard. We cannot, without check permit human freedom

to be gouged by jail guards under guise of 'encounters' and 'escape

attempts'.

Mr., Justice Douglas stressed this aspect in Wolff v. Mcdonnel:(')

"We have made progress since then but the old tradition

still lingers. Just recently an entire prison

system of one

state

was held as inhumane . . . . The lesson to be learned

is that courts cannot

blithely defer to the supposed expertise

of prison officials when it comes to the constitutional rights

of inmates.

"Prisoners often have their privfilege revoked, are denied

the right of access

to counsel, sit in solitary or maximum

security or

less accrued 'good time' on the basis of a single,

(1) 41 L. Ed.

Zd. 935 at p. 976

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414 SUPREME COURT REPORTS [1979] i S.C.R.

unrevicwed report of a guard. When the Courts defer to

administrative discretion, it is this guard to whom they

delegate the foal word on reasonable Prison Practices. This

is the central evil in prison. . . . the, nnreviewed discretion

granted

to the poorly trained personnel who deal directly

with

prisoners."

If wars are too important to be left to the generals, surely

prisotners' rights are too precious to be left to the jailors. We must

add a caveat. Where prison tortnre is the credible charge and

hnman person the potential casual\y, the benefit

of scepticism justly

''t--

belongs to the individual's physical-mental immunity, not to the J ,

C hyper-sensitivity about safe custody.

D

E

F

G

H

Some welcome features : Community based litigation and participa­

tive justice, supportive of democratic legality.

A few special forensic featnres of the proceedings before us

have seminal significance ahd I adv>m to them in limine as helpful

factors in the progressive development of the legal process.

The essence

of this class of litigation is not adjudication on parti­

cular grievances of individual

prisomors but broad delivery of social

justice.

It goes beyond mere moral weight-lifting or case-by-case

correction bnt transcend ihto forensic

huma,nisation of a harsh legal

legacy which has for long hidden from judicial

view. It is ihe neces­

sitous task

of this Court, when invited appropriately, to adventnre

even into fresh areas

of agony and injustice and to inject humane

constitntional ethic i•nto imperial statutory survivals, especially when

the (prison) Executive, thirty years after Independence. defends the

alleged wrong as right and the Legislatures, whose members, over

the decades, are not altogether strangers to the hnrtful features of

jails, are perhlips pre-occupied with morn popular business than

concern for the detained derelicts who arc a scattered, voiceless.

noiseless minority.

Although neithor of these writ petitions is a class action in the

strict sense, each is representative of many other similar cases. I

think these 'martyt' litigations possess a beneficient potency beyond

the individual litigant, and their consideration on the wider represen­

tative basis stre11gthens the rule of law. CTass actions. community

litigations, representative suits, test cases and public interest proceed­

ings are in advance on our traditional conrt processes and faster

people's vicarious involvement in onr justice system with a broad­

based concept of locus standi so necessary in a democracy where

the masses at>~ i·n many st)nses weak.

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, !.) 415

Another hopeful processual feature falls for notice. Citizens for

Democracy, an organisation operating in the field of human rights,

has

been allowed to

intervene in the Sobraj case and, on its behalf,

Shri Tarkunde has made legal submissions fuelled by passion for

jail reforms. The i'ntervention of social welfare organisation in

litigative processes pregnant with wider implications is a healthy

mediation between

the

People and the Rule of law. Wisely permit­

ted, participative justice, promoted through

mass

based organizations

and public

bodies with special concern seeking to intervene, has a

democratic potential

for the little men and the law.

w.~ have essay­

ed at length the solutio'ns to the issues raised and heard parties

ad libitum because of their gravity and novelty. . . although a capsu­

lab~ discussion might make-do. A short cut is a wrong cut where

people's justice is at stake.

This Court's role as catalyst of prison justice.

It is an unhappy reflection, charged with pessimism and realism,

that Governments have come and Governments have goDo~ but the

the jails largely manage to preserve the macabre heritage a'nd ignore

the mahatma's message. And this, with all the reform bruited about

for decades and personal experience of statesman in state power.

The learned Attorney General at a very early stage of one of these

cases, and the lea;rned Additional Solicitoc General as well as

Shri Tarkuude i'11 the course of thdr submissions, did state that this

Court's reformist response to

the challenges raised here may go a

long way in catalysing those humane changes in the prison laws

and practices

alP~ady high on the national agenda of Government.

Disturbing Commission Reports and public proceedings put

to

shame

prison justice and shake people's faith in the firm fighting

functionalism of the judicial process. So I have stretched the

canvas wide and counsel have copiously helped the Court.

Prison decency and judicial responsibility

What penitentiary reforms will promote rapport between current

prison practices and constitutional

norms ? Basic

prison decency is

A

B

c

D

E

F

an aspect of criminal justice. And the judiciary has a constituency

· G

of which prisoners, ordered in by court sentence, are a numbrous

part.

This

vicarious responsibility has induced the

Supreme Court of

the United Stat·~s to observe :

"fn a series of decisions this Court held that,

though

the Governmental purpose be legitimate

llnd

tantial, that purpose cannot b~ pursued by means

even

subs­

that

H

A

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416 SUPREME COURT REPORTS (1979] 1 S.C.R.

broadly stifle fundamental personal liberties when the end

can be more narrowly achieved. The breadth of legislative

abridgement must be viewed in the light of less drastic

means for achieving the same basic purpose."

(Shelton v. Tucker, 364 US 476 (1950) at p. 468)(').

Karuna is a component of jail Justice.

Ex post facto justification of prison cruelty as prevention of

disorder and escape

is often a dubious allegation. Another factor often forgotten, while justifying harsh treatment of prisoners: is the

philosophy of rehabilitation. The basis is that the custodial staff

can make a significant contribution by enforcing the rule of prison

law and preparing convicts for a law-abiding life after their

release­mainstP~aming, as it is sometimes called.

Mr. Justice, Stewart in Pall adverted to the twin objectives of

imprisonment. 'An important function of the correction system is

the deterrence of crime. The premise is that by confining criminal

offenders in a facility where they are isolated from the rest of

society,

a condition. that most

P'~ople presumably find undesirable,

they and others

will be deterred from

1

committing additional criminal

offences. This isolation, of course, also serves a protective function

by quarantirti

1ng criminal

offend•ers for a given period of time while,

it

is hoped, the rehabilitative processes of the corrections system

work to correct the offender's

demonstrated criminal proclivity.

Thus, since most offenders

will eventually return to society, another

paramount objective of

th•e correctio'ns system is the rehabilitation of

those committed to its custody. Finally, central to all other

corrections

goals is the institutional consideration of internal security

within the corrections facilities

themsdves. It is in the light of

these legitimate penal objectives that a court must assess challenges

to prison regulations bas•ed on asserted cdnstitutional rights of

prisoners.'

The benign purpose behind deprivation of freedom of locomotion

and expression is habilitation of the criminal into good behaviour,

ensuring social defence on his release into the community. This

rationale is subverted by torture-some treatment, antagonism and

bitterness which spoil the correctional prdcess. 'Fair treatment ....

) .. will enhance the chance of rehabilitation by reactions to arbitrari­

ness' (33 L. Ed. 2d. 484).

Rehabilitatio'n effort as a necessary component of incarceration is

part of the Indian criminal justice system as also of the United States.

(1) See Substantive Criminal Law by Cherif Bassiouni, p. 115

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SUNIL BATRA v. DE_LHI ADMN. (Krishna Iyer, J.) 417

For instance, this correctional attitude has been incorporated as a A

standard

by the National Advisory Commission on Criminal Justice

Standards and Goals :

(')

". . A rehabilitative purpose is or ought to be implicit

in every sentence of an offender unless ordered otherwise

by

the sentencing

court." B

In Mohammad Giasuddi11 v. State of A.P.C) this Court strongly

endorsed the importance of the hospital setting and the therapeutic

goal

of imprisonment :

"Progressive criminologists across the world will agree

that

the Gandhian diagnosis of offenders as patients and c

his conception of prisons

as hospitals-mental and moral-

is the key to the pathology of delinquency and the thera-

peutic role of 'punishment'. The

whole man is

a healthy

man

and every man is

qorn good. Criminality is a curable

deviance. Our prisons should be correctional houses,

not cruel iron aching the soul. . . . This nation

cannot- D

and,

if it remembers its incarcerated leaders and freedom

fighters-will not but revolutionize the conditions inside

that grim little world.

We make these persistent observa-

tions only to drive home the imperative of freedom-that its

deprivation,

by the

State, is validated only by a plan to

make the

sente,ncee

more worthy of that birthright. Th~re E

is a spiritual dimension to the first page of our Constitution

which projects into penology."

All this adds up ta the important proposition that it is a crime of

punishment

to further torture a

person undergoing imprisonment, as

the remedy aggravates the malady and thus ceases to be a reas<lllitble F

justification for confiscation of personal freedom and

is arbitrary

because it

is blind action not geared to the goal of social defence.

which

js one of the primary ends of imprisonment. It reverses

·the

process by manufacturing worse animals when they are . released

into the mainstream of soc;~ty. Roger G. Lanphear, in a recent

study, has quoted a telling Jetter from a prisoner which makes the G

poignant point.(')

Dear Mrs. Stender :

(I) 61, pg. 43 : Quoted in Freedom from Crime by Roger Lanphear, J. D.

(Nellore Publishing Company).

·

(2) 1977 (3) s. c. c. 287. H

(3) Regers G. Lamphear Freedom From Crime through TM-Sidhi Progre>s

pp. 46--47.

/ ,

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418

SUPREME COURT REPORTS [1979] 1 S.C.R.

You cannot rehabilitate a man through brutality and

disre~pect. Regardkss of the crime a man may commit,

he still is a human bein& and has feelings. And the main

reason most i'nmates in prison today disrespect their keepers

is because th"Y themselves (the inmates) are disrespected

and are not treated like hnman beings. I myself have wit­

nessed brutal attacks upon inmates and have suffered a few

myself, uncalled for. I can und•;mtand a guard or guards

restraining an inmate if he becomes violent. But many a

time this restraining has turned into a brutal beating. Does

this type

of treatment bring abont respect and

Nhabilita­

tion? No. It only instills hostility and causes alienation

toward the priso·n officials from the inmate or inmates in­

volved.

If you treat a man like an animal, then you must ex­

pect him to act like omc. For every action, there is a

reaction. This is only human nature. And in order for

an inmate to act like a human being you must trust him

as

such. Treating him like an animal will o'nly get nega­

tive results from him. You can't spit in his face and

expect him to smile and say thank you. I hav•2 seen this

happen also. There

is a large gap between the inmate

and prison officials. And it will continue

to grow until the

prison officials lear'n that an inmate

is no different than

th•2m, only in the sense that he has broken a law. He still

has feelings, and he's still human being. And until the big

wheels in Sacramento and the personnel inside the prisons

start practicing rehabilitatio'n, and stop practising zoology,

then they can exP'cct continuous chaos and trouble between

inmates and officials.

Lewis

Moore"'

We must heed the wholesome counsel of the British Royal Com­

mission(') :

G "If the suggestion were that, because of enormity of

the crime, murderers ought to be subjected

to special

rigo­

rous treatment, this would run counter to the "accepted

principle of modern prison administration that imprisonment

is itself the penalty and that it is not the function of the

Prison authorities to add further penalties day by day by

H punitive conditions of discipline, labour diet and general

treatn1ent."

(1) Royal Commission on Capital Punishment.

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SUNIL BATRA v. DELIHADMN. (Krishna Iyer, J.) 419

The relevance of the thought that accentuation of injury, beyond

imprisonment, may

be counter-productive of the therapeutic objective

of the

penal cystem will be clear when we test such infliction on the

touchstone of Art.

19 and the 'reasonableness' of the action. In depth

application

of these seminal aspects may be considered after unfolding

the lact-situaiions in the two cases. Suffice

it to say that, so long.as

jndges are invigilators and enforcers of constitutionality

and perfor­

mance auditors of legality, and convicts serve terms in that grim

microcosm called prison by the mandate of the court, a continuing

institational responsibility vests in the system to monitor in the incar­

ceratory process and prevent security 'excesses·. failors are bound

by the mlc of law and cannot inflict supplementary sentences under

disguises or defeat the primary purposes of imprisonment. Additional

torture by forced cellular solitude or iron iinmobilisation-that is the

complaint

here-stands the peril of being shot down as unreasonable,

arbitiary •and is perilously near unconstitutionality.

Court's interpretative function when faced with invalidatory alternative.

Batra puts in issue the constitutionality of S. 30(2) of the Prisons

Act, 1894 (the Act, for short) while Sobhraj impugns the vires of

S. 56. But the Court does not 'rush in' to demolish provisions where

judicial endeavour, amelioratively interpretational, may achieve both

constitutionality and compassionate resurrection. The salutary Sfril­

tegy of sustaining the validity of the l~w and softening its application

was, with lovely dexterity, adopted by Sri Soli Sorabjee appearing for

the State. The semantic technique of updating the living sense of a

dated legislation is, in our view, perfectly legitimate, especially when,

in a developing country like ours, the

corpus

j11ris is, in some measure

a Raj hang-over.

Parenthetically,

we may express surprise that, going by the Pnnjab

....___ __ . Jail Manual (1975), the politically notorious Regulation III of 1818

and ban on 'Gandhi cap' still survive in Free India's Corpns Juris,

what with

all the sonnd and fury against detention without trial and nat10nal homage to Gandhiji.

~ To meet the needs of India today, the imperatives of Independence

desiderate a creatives role for the Courts in interpretation and applica­

' tion, especially when enactments from the imperial mint govern.

Words grow with the world. That is the dynamics of semantics.

Read Dickerson(') has suggested :

" ... the Courts arc at least free from control by original

legislatures. Curtis, for one, has contended that, consis­

tently with the ascertained meaning of the sl'atnte, a court

1) The Interpretation and Application of Statutes, p. 245.

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420 SUPREME COURT REPORTS [1979] 1 S.C.R.

should i1c able to shake off the dust of the past and plant its

feet firmly

in the present.

... The legislature which passed the statute has

·

adjouraed and its members gone home to their constituents

or to a long rest from all law making. So why bother about

B what they intended or what they would have done? Better be prophetic than archaeological, better deal with the future

than with the past, better pay a decent respect for a future

Jcgislattlre than stand in awe of one that bas folded up its

papers and joined its friends at the country club or in the

c

D

E

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ce1netcry ....... .

...... Let the courts deliberate on what the present or

future legislature would do after it had read the court's

opinion, after the situation has been explained, after the

ccPr! has exhibited the whole fabric of the law into which

this particular bit of legislation had to be adjusted."

Constitutional deference to the Legislature and the democratic

assumption that people's representatives express the wisdom of the

community lead courts into interpretation of statutes which preserves

and sustains the validity of the provision. That

is to say, courts must,

with intelligent imagination, inform themselves of the values

of the

Constitution

and, with functional flexibility, explore the meaning of .

meanings to adop that construction which humanely constitutionalizes

the statute in question. Plainly stated, we must endeavour to inter­

pret the words in sections 30 and 56 of the Prisons Act and the

paragraphs of the Prison Manual in such manner that while the words

belong to the old order, the sense radiates the new order. The lumi­

nous guideline on

Weems v.

United States sets our sights high : Cl

"Legislation, both statutory and constitutional is enacted,

it is t1uE, from an experience of evils, but-its general

language should not, therefore, be necessarily confined to

the form that civil had therefore, taken. Time works

changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider

application than the mischief which gave

it birth. This is

peculiary true of constitutions. They are not ephemeral en­actments designed to meet passing occasions. They are, to

use the words of Chief Justice Marshall, "designed to

approach immortality as nearly

as human institutions can

approach

it". The future is their care, and provisions for

events of good and bad tendencies of which no prophecy

(I) 54 L. ed. 801 (Weems v. United States)

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 421

can be made. In the application of a constitution, there'

fore, our contemplation cannot be only of what has been,

but of what may be. Under any other rule a constitution

would indeed be

as easy of application as it would be.

Under any other rule

'a constitution would indeed be as easy

of applications as it would be deficient in efficacy

and power.

Its general principles would have little value, and be con­

verted

by precedent into impotent and lifeless formulas.

Rights declared in the words might be lost in reality. And

this has been recognised. The meaning and vitality of the

Constitution have .developed against narrow and restrictive

construction.:•

A note in Harvard Law Review(

1

) commenting on Weems v.

lJnited States urges such a progressive construction :

"The inhibition of the infliction of 'cruel and unusual

punishment' first appears in the Bill of Rights

of

1680. at

a time when the humanity-of Judge Jeffreys of Bloody

Assizes' fame and

of his [ellows under the

Stuarts, loomed

large in the popular mind. . . . In the eighth Amendment

to the Constitution of the United States the same prohibition

is found ......... (Courts) have held that whatever is now

considered cruel and unusal in

fact is forbidden by it An­

other difference

of interpretation intersects these divergent

views and separates the Courts which confine the words to

the kind

or mode of punishment from those who extend their

meaning to include

as well its degree or severity. Tn a

recent case concerning such a provision in the

Bill of Rights of

the Philippine Islands, which has the same meaning

as the

Eighth Amendment, the Supreme Court of United States,

committing itself to the most liberal interpretation, not only

held that the clause was concerned with the degree of

punishment, but approved of the extension of its scope

to

keep pace

with the increasing enlightenment of public opi-

11ion (Weems v. United States, 217 US, 349). It i<, indeed,

difficult to believe that a

law passed in the

twemieth centurv

is aimed solely at abuses which became almost unknow~

two hundred years before, even though it is an exact trans­

cript of an old Bill. And excessive punishment may be

quite

as bad as punishment cruel in its very nature. The

fear. of judicial intermeddling voiced by one of the dissent-

11) Hervard Law Review, Vol. 24 (1910-11) p. 54-55 .

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SUPREME COURT REPORTS (1979J j S.C.R.

ing judges seems scarcely warranted, for the power to pre­

vent disproportionate punishment is to be exercised only

when the punishment shocks public feeling. With thin limi­

tation, the progressive construction of this clause laid down

by this case seems desirable."

(emphasis added)

The jurisprudence of statutory construction, especially when a.

vigorous break with the past and smooth reconciliation with a radical

constitutional value-set arc the object, uses the art of reading down

and reading wide, as part of intcrpretational engineering. Judges are

the mediators between the societal tenses. This Court in

R. L. Arora

v. State of

Uttar Pradesh & Ors(') and in a host of other cases, has

lent preeedential support for this proposition where that process ren­

ders a statute constitutional. The learned Additional Solicitor General'

il'as urged upon us that the Prisons Act (Sections 30 and 56) can be

vehicle of enlightened values if

we pour into seemingly fossilized

words a freshness of sense.

"It is well settled that if certain pro­

visions of law construed in one way

will be consistent with the

Consti~

tution, and if another interpretation would render them unconstitu­

tional. the Court would lean in favour of the former construction."

To put the rule beyond doubt, interstitial legislation through inter­

pretation

is a life-process of the law and judges are party to it. In

the present case we are persuaded to adopt this semantic readjustment

so

as to

obviate a Iegicidal sequel. A validation-oriented approach

becomes the philosophy of statutory construction, as we will presently

explain

by application.

The two problems and our basic approach The specific questions before us are whether the quasi-solitudinous

cellular custody of sorts imposed on Batra

is implicit in his

death

sentence and otherwise valid and, the heavy irons forced on the per­

son of Sobhraj still standing his trial comport with our constitutional

guarantees qualified and curtailed

by the prison environs. Neces­

sarily our perspective has to be humanistic-juristic becoming the

Karuna of our Constitution and the inte;rnational consciousne·ss on

human rjghts.

Three quotes set this tone sharply. In the words of

Will

Durant(') : 'It is time for all good man to come to the aid of their

party,

whose name is civilization'. And, more particularised is

the·

observation of Chief Justice Warren E. Burger ~bout what is to be

(1) [1964] 6 S.C.R. 784.

(2) Will L)ur:lnt's Article "What Life has taught Me". published in Bhawan~

Journal, Vol. XXIV, No. 18, April 9, 1978. p. 71 at p. 72.

'

..

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)

'

1

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t

•

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer,!.) 423

done with an offender once he is convicted, that this is 'one •JI man­

kind's unsolved and largely neglected problems'. And Winstoa

Churchill's choice thought and chiselled diction bear repetition :

"'The mood and temper of the public with regard to the

treatment of crime and criminals

is one of the most unfailing

tests of the civilization of any

country."

And a clinching comment concludes this thought. The White Paper

entitled "People in Prison" published by the British Government in

November, 1969, articulates a profound thought in its concluding

paragraph, much less true for India as for the United Kingdom :

"A society that believes in the worth of individual beings

can have the quality of its belief judged, at least in part,

by the quality of its prison and probate services and

of the

resources made available to

them."

Batra facts

I begin with the critical facts in the first writ petition. Sunil

Batr.i, sentenced to death but struggling survive, supplicates patheti­

cally that although his appeal against the death sentence still pends

he is being subject to solitary confinement which is contrary to the provision of the Pell'al Code, the Criminal Procedure Code, the Prison

Act and Articles 14, 19 and 21 of the Constitution. The Sessions

Court of Delhi held hlm guilty of a gruesome murder compounded

•

with robbery and awarded the capital penalty, way back in January,

1977. Until then, Batra was B class prisoner eligible for amenities

which made his confinement be•arable and companionable. But once

the death peaalty was pronounced, the prison superintendent promptly

tore him away from fellow human, stripped him of the B class

faci­

lities and locked him up in a single cell with a small wailed yard

attached, beyond the view and voice of others save the jail

guards and formal visitors in discharge

of their official chores and

11

few callers once in a blue moon. TI1e prisoner filed an appeal against

his conviction and sentence

to the High Court, which also heard the

reference for confirmation of the death sentence under sec. 395 of

the

Criminal Procedure Code (for short, the Code). In the mean­

while-and it proved a terribly long while-he was warehoused, as it

were, in a solitary cell and kept substantially incommunicado.

The quasi-solitary confinement was cha:!lenged in the High Court,

perhaps vaguely

(not particularising the constitutional infirmities of Sec. 30 of the Prisons Act Md the Punjab Jail Rules) but was given

short shrift

by the High Court. The learned single Judge reasoned : "The only point for consideration is whether the petitioner can have

the facility as demanded by him till the sentence of death

is confirmed.

By going through

all these rules I am of the clear view that he cannot

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424 SUPREME COURT REPORTS [1979] 1 S.C.R.

be given the facilities as it might lead to disastrous consequenc;es.

It also becomes the function of the State to look to the personal safety

of such a condemned prisoner. There

is no force in the petition

which

is hereby

dismissed". The appeal to a division bench was

withdrawn and the present writ petition under Art. 32

was filed,

where the lay prisoner urged his litany of woes and some constitu­

tional generalities, later supplemented by

Sri Y. S. Chitale as amicus

curiae.

Hi's lurid lot was pathetically painted by counsel. Grim walls

glare at him from all sides night and day;

his food is

ins"rtcd into

the room and his excretory needs must be fulfilled within the same

space. No pillow

to rest his restless head, no light inside. save the

bulb that

burns blindly through the night from outside. No human

face or voice or

view except the warder's constant compulsory intru­

sion into the prisoner's privacy

·and the routine revolutions of officials'

visitations, punctuated

by a few regulated visits of permitted relatives

or friends, with iron bars and peering warder's presence in between.

No exercise except a generous half hour, morning and evening, in a

small, walled enclosure from where he may

do asanas

were he yogi,

do meditation were he sanyasi and practist: communion with Natlire

were he Wordsworth or Whiteman or break down in speechless sorrow

were

he but common clay. A few books, yes; newspapers? No.

Talk to others? No; save echoes of one's

own soliloquies; no sight

of others except the stone mercy

in pathetic fallacy. This segregation,

notwithstanding the prescribed category of visitors permitted and

censored

letters allowed, argues Sri Chitale, is violation of the primor­

dial gregariousness which, from the beginning of the species, has been

man's social milieu and so constitutes a psychic trauma, ,when pro­

longed beyond years, too torturesome for tears, even in •lur ancient

land of silent mystics and lonely cavemen. For the great

few, solitude

sometimes

is best society but for the commonalty the wages of

awe­

some seculsion, if spread over Jong spells, is insanity. For the fevered

life of the modern man, more

so under the stress of sentence, solitude

is

terro.r and cellular vacuum horror. Just think not of the contem­

plative saint but of the run of the mill mortal. Cage

his lonely person

and monitor his mind and mood with a sensitive understanding.

Then

you know that moments bear slow malice; hours hang heavy with

ennui; days drop dead, and lonely weeks wear a vicious stillness; for

sure, weary months or singleness, with monotonous nights,

lll'ilde more

hurtful by the swarms of mosquitoes singing and stinging, and in many

cells, by the blood-thirsty armies of bugs, invisibly emurging from

noctural nowhere, to hide and bite, make for lunacy.. Time cries

halt and the victim wonders,

is death a better deal? Such is the

torture and tension of the solitary cell, picturised by counsel.

'

1

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 425

The Tihar Jail is the scene und a glimpse of it is good. Law is

not a brooding omnipresence

in the sky but a behavioural omnipo­

tence on the earth, a do-don't calculus of

principled pragmatism. So,

auy discussion of prison law problems must be preceded by a feel of

the cell and surroundings.

For this reason we now set out the ins­pectio1• notes left by Chief Jµstice Beg, who visited the 'condemned

cell' along with his two brothers on the bench :

"W.: inspected the cell in which the prisoner was con­

fined. We were relieved to find that conditions there did

not correspond to the picture which eloquent arguments of

hls counsel before us conjured up in our minds. We had

been led to believe that the .Prisoner was kept in some kind

of a dungeon with only a small hole through which light

could penetrate only wlien there was enough sunshine. It

was true that the prisoner was living in a room with a

cemented

floor and with no bed,

furniture, or windows ilJ it.

The iight came from a ventilator with iron bars on the wall

at the back

of the room and the wide gate of iron bars in

front. J'he light was, however, enough. It is also true that

there was no separate room for the petitioner to take a bath in or to answer calls of nature. But in this very room, the

site

of which given on a diagram fumished by the jail

autho­

rities, water and sanitary fittings were installed in one cor­

ner

of the room. In front of the room there was a small

verandah with pakka walls and iron gates separating each

side

of

it from a similar verandah in front of an adjoining ·

cell. The entrance into this verandah was also through a

similar iron gate. The inner roonz in lvhich the prisoner

was confined had ·also a gate of iron bars. All gates were

with ir;m bars on frames so that one could see across them

through the spaces between the bars. All these gates were

locked. We learnt that the petitioner was able to come into

the verandah at certain tilnes of the day. At that time only

he could communicate with other similarly kept prisoners

whom

he could see and talk to through the iron bars. In

other words, for all practieal purposes, it was a kind of soli­

tary confinement.

We did not see a separate guard for each prisoner in

the

row of cells for prisoners sentenced to death. All these

prisoners were certainly segregated and kept apart.

But it

is diflkult to determine, without going into the meaning of

'solitary confinement',

as a term of Jaw whether the condi­

tions in which the petitioner was kept amounted to 'solitary

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426 SUPREME COURT REPORTS (1979] l S.C.R.

confinement'. Probably. if small windows with iron bars

were p10vided between one cell and another, the prisoners

could talk to each other also so that the confinement would

no longer be solitary despite the fact that they are kept in

separate adjoining cells.

The petitioner did not complain of any discomfort

other than being kept in 'solitary confinement' and being

made to sleep on the floor. He asked us to see another

part of the prison where undertrials were kept. When we

visited that part, we found dormitories provided them for

under-trial prisoners who had beds there and their own

bedding and clothing. They also had, in that part of the

prison, radio sets, some of which belonged to the prisoners

and others to the jail. The under-trials were allowed

to

mix with each other, play games, or do what they wanted

within a

compound." (emphasis, ordered).

The basic facts bearing upon the condition of the prisoner

in his

cell are not denied although ce1iain

materials have been averred in

the counter affidavit to make out that the mental mayhem imputed

to the system vis a vis the petitioner is wild and invalid.

For updating the post-sentence saga

of Batra it

is,. necessary co

state that the High Court has since upheld the death penalty imposed

on him; and open to him still is

the. opportunity to seek leave

1o

appeal under Art. 136 and, if finally fmstratcd in this forensic pur­

suit, to move for the ultimate alchemy of Presidential communication'

under Art.

72. The cumulative period from when

the Sessions Court

sentences

to death to when

the Supreme Court and the President

say 'nay' for his right to life may be considerqblc as in this very case.

From them, if discomfited at all stages and condemned to execution,

to when

he swings on the rope to reach 'the undiscovered country

from whose bourn

no traveller returns' is a different, dismal chapter.

Keeping these spells of suffering separate,

we may approach the

poignant issu of quasi-solitary confinement and its legality.

Art.

21 insists upon procedure established by law before any

G person can be denuded

of his freedom of locomotion. What then is

the law relied upon by the State to cut down the liberty of the person

to the bare bones

of utter isolation?

Section 30 of the Prisons Act

is pressed into service in answer. The respondent's counter-affida''it

alleges, in substantiation of cellular seclusion and deprivation of

II

fellowship, the following facts :-

"In fact, I submit that the provisions of Sec. 30 of the

Prisons Act take in · all necessary safeguard for the protec­

tion

of the prisoners sentenced to death which are abso-

•

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"

i

SUN!L BATRA v. DELHI ADMN. (Krishna Iyer, I.) 4 27

lutely nece55ary in view of the state of mind of such

prisoners as well as all the possible circumstances in which

these prisoners may indulge in harming themselves

or any

-0ther criminal activity in their voluntary discretion and in ·

the alternative the possibility of their being harmed by any

other prisoner. A prisoner under sentence of death can

connive with such prisoners and may thereby succeed in

_getting some instrument by which he may commit suicide

or may be enabled

to escape from the jail. Moreover a

prisoner under sentence

of death has a very harmful

influence

on the other prisoners.

In the administration of prisoners

in jail the maximum

security measures have to be adopted in respect of the

prisoners under sentence. of death. As they are highly frus­

trated lot, they will always be on the look out for an

opportunity to over-power the watch and ward guard, and

make attempt

to escape. It is quite relevant to add that

under the existing provisions of Jail Manual, Armed Guard

cannot be posted to guard the prisoners. The Warder guard

has to guard them bare handed.

In case the prisoners under

sentence of death

are allowed to remain outside the cells,

then

it would be next to impossible for the guard to control

them bare handed.

Under the provisions of the new Cr. P.C. the Capital

Punishment

is awarded only to the exceptionally few

prisoners because now it is the exception rather than rule, and the learned Courts have to record special reasons for

awarding the extreme punishment. This implies that the

prisoners under sentences of death are exceptionally

dangerous prisoners, who do require maximum security

measures while confined in

Jail.

Under the existing

arrangements in the Jail there can

be no substitute to the

confinement treatment of such prisoners otherwise than in

the cells. After having

been awarded the capital punish­

ment the prisoners sentenced to death harbour feelings of

hatred against the authorities.

If such prisoners are

allowed

to remain outside the cells then there is every possibility of

incidents

of assaults etc. on the fact (sic) of such prisoners .

. . . . . If the prisoners sentenced to death are mixed up

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with other categories of prisoners then the very basic II

structure of superintendence and management of jails will

be greatly jeopardised.

I l-526SCI/78

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428 SUPREME COURT REPORTS [1979] 1 s.c.R.

..... I submit that the, provisions of Section 30 of the

Prisons Act are absolutely necessary looking to the state of

mind of prisoners under sentence of death, the possibility

of such prisoners harming themselves or getting harmed

by

others or escaping in view of the relevant sociological

aspects of security relating to the

Society in the modern

States."

These factual-legal submission deserve examination. When argu­

ments spread out the learned Additional Solicitors abandoned some of

the extreme stances taken in the States affidavit and reduced the rigour

of the averments by gentler postures. J.-.

J,

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Essentiality, we have to decide whether, as a fact, Batra is

being subjected to solitary confinement. We have further to explore

whether S.30 of the Act contemplates some sort of solitary confine­

ment for condemned prisoners and,

if it does, that legalizes current

prison praxis.

We have further to investigate whether such total seclu-

sion, even

if covered by

S. 30(2) is the correct construction, having

regard to the conspectus of the relevant provision of the Penal Code

and Criminal Procedure Code. Finally,

we have to

pronounce upon

the vires

of

S. 30(2), if it does condemn the death sentencee to dis­

mal solitude.

The learned Additional Solicitor General made a broad sub-

E mission that solitary confinement was perfectly constitutional and

relied on citations from the American Courts at the lesser

levels

Its bearing on the structure of his argument is that if even in a

country like the

United States where the Vlllth Amendment bans

cruel and unusual punishment, the 'solitary' has survived judicial

scrutiny, it

is a fortiori case in India, where there is no constitutional

F prohibition against cruel and unusal punishment.

G

B

True our Constitution has no 'due process' clause or the VIII

Amendment; but, in this branch of Jaw, after Cooper

and Maneka

Gandhi, the consequence is the same. For what is punitively outrage­

ous, scandalizingly unusual or cruel and rehabilitatively counter­

productive,

is unarguably unreasonable and arbitrary and is shot

down

by Art. 14 and 19 and if inflicted with procedural unfairness, falls foul

of Art. 21. Part III of the Constitution does not part company with the

prisoner at the gates, and judicial oversight protects the prisoner's

shrunken fundamental rights,

if flouted, frowned upon or frozen by

the prison authority. ls a person under death sentence or undertrial

unilaterally dubbed dangerous liable to suffer extra torment too deep

for tears

? Emphatically no, lest social justice, dignity of the individual,

equality before the law, procedure established

by Jaw and the seven

•

•

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, !.) 429

lamps of freedom (Art. 19) become chimerical constitutional claptrap.

Judges, even within a prison setting, are the real, though restricted,

ombudsmen empowered to prescribe and prescribe, humanize and

civilize the life-style within the

careers. The operation of Articles 14,

19 and 21 may be pared down for a prisoner but not puffed out al­

together. For example, public addresses

by prisoners may be put down

hut talking to fellow prisoners cannot.

Vows of silence or taboos on

writing poetry or diawing cartoons are violative of Article 19.

So

also, locomotion may be limited by the needs of imprisonment but

binding hand and foot,

with hoops of steel, every man or women sen­tenced for a term is doing violence to Part III. So Batra pleads that

until decapita'.ion

he is human and so should not be scotched in mind

by draconian cellular insulation nor stripped of the basic fellowship

which keeps the spirit flickering before being extinguished

by the

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, swinging rope.

{

Is it legal or legicidel to inflict awesome loneliness on a living

human ? The lesser poser to the prison administration

is, what is its D

authority, beyond bare custody, to wound the

condemned men by

solitary confinement

? Indeed, the Additional Solicitor General, at

the threshold, abandoned such an 'extinguishment' stance ambiguous-

ly lingering in the

State's counter affidavit and argued only for their

realistic circumscription, since a prison context affects the colour,

content and contour of the freedoms of the legally unfresh. The neces- E

sary sequitur is that even a person under death sentence has human

rights which are non-negotiable and even a dangerous prisoner,

standing trial,

has basic liberties which cannot be bartered away.

The Cooper effect and the Maneka armour vis-a-vis prisons.

The ratio in A. K. Gopa/an's case where the Court, by a majo­

rity, adopted a restrictive construction and ruled out the play of

fundamental rights for anyone

unde.r valid detention, was upturned

in

R.C. Cooper's case.(') In Maneka Gandhi, the Court has high­

lighted this principle in the context of Art.

21 itself,

And what

is 'life' in Art. 21? In Kharak Singh's case.

Sobba Rao,

J. qnoted Field,

J. in Munn v. lllino's (1877) 94, U.S. 113, to empha­

sise the quality of life covered by Art. 21 :

"Something more than mere animal existenoe. The in­

hibition against its deprivation extends to all those limbs

and faculties by which life

is enjoyed. The provision

(I I (19711 1 SCR 512.

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430 SUPREME COURT REPORTS [ 1979] 1 S.C .II.

equally prohibits the mutilation of the body by the amputa­

tion of an arm

or leg, or the putting ont of an eye, or

th~

destruction of any other organ of the body through which

the soul communicates with the outer world."

[1964(1) SCR 232 at 357]., A dynamic meaning must attach to life

B and liberty.

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II

This court has upheld the right of a prisoner to have his work

published if it does not violate prison discipline. (State ·v.

Parulurang)('). Tht martydom of Gopalan and resurrection by

Cooper paved the way for Maneka (') where the potent invocation

of the rest of Part ill, even after one of the rights was validity put

out of action, was affirmed in indubitable breadth. So the law is that

for a prisoner all fundamental rights are an enforceable reality,

though restricted by the fact of imprisonment. The omens are hope­

ful for imprisoned humans because they can enchantingly invoke

Maneka and, in its wake Arts. 14, 19 and even 21, to repel the

deadening impact

of unconscionable incarceratory inflictions based

on some lurid legislative text or untested tradition. As the twin cases

unfold the facts, we have

to test the contentions of law on this

broader basis.

'Prisons are built with stones of Law' (sang William Blake) and

so, when human rights are hashed behind bars, constitutional .iustice

impeaches such law.

In this sense, courts which sign citizens into

prisons have an onerous duty

to ensure that, during

detention and

subject to the Constitution. freedom from torture belongs to the

detenu.

I may project, by way of recapitulation, issues in the two cases.

ls Batra or any convict condemned to death-liable to suffer, by

implication, incarceratory sequestration, without specific punishment

of solitary confinement, from when the Sessions Judge has pro­

nounced capital sentence until that inordinate yet dreadful interregnum

ends when the last court has finally set its seal on his liquidation and

the highest executive has signed 'nay' on his plea for clemency?

Is prison law, which humiliates the human minima of jail justice,

unlaw?

Is Batra, strictly speaking, 'under sentence of death' until its

executability, and his terrestrial farewell have become irrevocable by

the

final refusal to commute, by the last

court and the highest Exe­

cutive ? Till then, is he. entitled to integrity of personalities viz. free­

dom from crippling on body, mind and moral fibre, even while in

(I) (1966] (1) S.C.R. 702 and see (1975] 3sec185 (Chandrachud, J.)

(2) (19781 1 S.C.R. 248.

SUNIL BATRA v. DELHI ADMN. (KrishlUl Iyer, J) 431

custody, or is he deemed under s. 30 of the Act to suffer lone A

imprisonment until cadaverisation?-a qualitati\ie hiatus in approach

and impact.

I have limned the key questions canvassed on behalf of Batra

before

us and, if I may forestall my eventual response, Law India

...

• stands for Life, even the dying man's life and lancets its restorative B

way into that limbo where languish lonely creatures whose person­

hood is excoriated even if their execution 1s unexecutable until

,

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{

further affirmation.

In the next case we have Sobraj, an undertrial prisoner kept

indefinitely under bar fetters,

as a security risk, arguing against the c

constitutionality of this obvious torture, sought to be justified by the State under the prison law as a safety procedure. The two cases have

a certain ideological kinship. The jurisprudential watershed between

the jail sub-culture under the Raj and criminological consciousness

in Free India is marked by the National Charter of January 26,

19~ D

Bluntly put, are jailkeepers manegerie managers? Are human

beings, pulverized into living vegetables, truly deprived of life, the

quality

of life, or at least of liberty, that limited loop of liberty, the

fundamental Law, in its basic mercy,

offers to the prison commu-

nity ? Are punitive techniques

of physio-psychic torture practiced E

as jail drill, with the trappings of prison rules, coustitutional anethema

when pressed beyond a point? Every Constitution projects a cultural

consciousness and courts must breathe this awareness.

A few more variants of these interrogatories may be spelt out.

Is solitary confinement or similar stressful alternative, putting the F

prisoner beyond the zone

of sight and speech and society and wreck-

ing his psyche without decisive prophylactic or penological gains, too

discriminatory to

be valid under Art. 14, too unreasonable to be

intra vires Article 19 and too terrible to qualify for being human

law under Article 21? If the penal law merely permits safe custody

of a 'condemned' sentencee,

so as to ensure his instant availability

for G

execution

with all the legal rituals

on the appointed day, is not the

hurtful severity

of hermetic insulation during that tragic gap between

the first judgment and

the; fall of the pall, under guise of a prison

regulation, beyond prison power?

This epitome, expressed tartly,

lays bare the human heart of the H

problem debated with elaborate legal erudition and compassion at

the Bar.

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432 SUPREME COURT REPORTS [1979] 1 S.C.R.

These. are critical problems which symboliz.e the appeal to highet

values, and inspired by this lofty spirit, counsel ha\'e argued. I must,

right at

the outset, render our need of appreciation for the industry

and illumination brought in by

Shri Y. S. Chitale, amicus curiae, as

he pressed these points of grave portent and legal moment.

So am I

beholden to

Shri Soli Sorabjee, the Additional Solicitor General, who

has displayed commendable candour and benign detachment from his

brief· and shown zealous con~m to advance the rights of man, even

'condemned' man, against the primitive drills behind the 'iron curt­

tain' sanctified by literal legality. The Prison Manual is no Bible.

This shared radical humanism at the bar has narrowed the area of

dispute and reduced the constitutional tension, and this has made

my task

easy.

Right now we will examine some of the fallacies in the counter­

aftidavit

filed by the

State. This will help us judge the reasonableness

or otherwise, the arbitrariness or otherwise, and the processual fair­

ness or otherwise of the prescription of the

de facto solitary con-J) finement, especially where the Court has not awarded such a sen­

tence and the Jail Superintendent bas read it into S. 30(2).

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n

A prefatory clarification will melt the mist of obscurity in the

approach of the State. Many a murderer is a good man before and

after the crime and commits

it for the first and last time under cir­

cumstantial crises which rarely repeat.

Some murderers are even

noble souls, patriotic rebels,

or self-less sacrificers for larger, some­

times misguided, causes. Not an unusual phenomenon

is the spectacle

of persons in the death row being political

or social dissenters, sensi­

tive revolutionaries, national heroes, coloured people socio-economic

pariahs or victims of fabricated evidence. Brutus and Bhagat

Singh

plus some proletarians, blockheads and blackguards! And this power­

ful realisation has driven many countries to abolish death penalty and

our own to narrow the area of this extreme infliction by judicial

compassion and executive clemency. Against this contemporary

current

of penological humanity, it is presumptuous to impose upon

this court, without convincing back-up research, the

preposterous

proposition that death sentences, often reflective in their terminal

chapter and 'sicklied over by the pale cast of thought, are homicidal

or suicidal beasts and must therefore be kept in solitary confine­

ment.

(1)

" ..... the evidence given to us in the countries we

visited and the information we received from others, were

uniformly to the effect that murderers are no more likely

(!) Royal Commission on capital Punishment, 1949-1953 Report pp. 216-217.

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SUNJL BATRA v. DELHI ADMN. (Krishna Iyer, J)

than any other prisoners to commit acts of violence against

officers or fellow prisoners or to attempt escape; OD the

contrary it would appear that in all countries murderers are,

on the

whole better behaved than most prisoners ....

433

Political coups, so frequent in our times, put 'murderers' in power

who

would otherwise have been executed. To universalise

Is to be

unveracious

when validation is founded on habituated hunch, not

authentic investigation. Once we set our sights clear, we see a string of non-sequitur

in the naked assertions of the State and an encore of the folklore of

'dangerousness' surrounding human sentenced to death The burden

A

B

of the song, strangely enough, is that solitary confinement is a com-c

passionate measure to protect the prisoner lest he be killed or kill

himself or

form a mutual

aid society with other condemned prisoners

for

hera kiri ' Community life for a death sentence, the social psy­

chology of the

Jail Superintendent has convinced him to swear, is a

grave risk to himself.

So, ·solitary segregation; The ingenious plea in

the counter affidavit is like asserting not only that grapes are sour but D

that

sloss are sweet. Not only is group life bad for him because he

may murder but 'solitary' is a blessing for him because otherwise

he may

be murdered! To swear that a solitary oell is the only barri­

cade against the condemned

men being killed or his killing others is

straining credulity to snapping point. Why should he kill or be killed?

Most murderers are first offenders and often are like their

fellow-E

men once the explosive stress and pressure of motivation are releas·

ed. Are there prison studies of psychic perversions or lethal

pre­

cede.its probabilising the homicidal or suicidal proclivities of death

sentencee, beyond the non-medical jail superintendent's ip~e dixil?

We are dealing with men under sentence of death whose cases

pend in appeal or before the clemency jurisdiction of Governor or

President. Such men, unless mad, have no motive to commit suicide

or further murder within the jail.

If they mean to take their life

themselves

wlfy plead in appeal or for commutation? The very legal

struggle to escape death sentence strongly suggests they want to

cling to dear

life. Dostoevsky(') once said that if, in the last moment

before being executed, a man, however brave, were given the alter­

native of spending the rest

of his numbered days on the top of a bare

rock,

with only enough space to

·sit on it, he would choose it with

relief.

The instinct of self preservation

is so inalienable from biological

beings that the

easy oath of the Jail Superintendent that condemned

(I) L.M. Hiranandani, The Sentence of Death, The Illustrated Weekly of

India, Aug. 29, Sept. 4, page 8.

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434 SUPREME COURT REPORTS [1979) I s.C.R'.

A prisoners are prone to commit suicide if given the facility looks too

recondite to commend credibility.

Likewise, the facile statement that men

in the death row are

sa

desperato that they will commit more murders if facility offers itself

Jach rational appeal. It is a certainty that a man in the death row

B who has invited that fate by one murder and is striving to save him­

self from the gallows

by frantic forensic proceedings and mercy

petitions

is not likely to make his hanging certain by committing any

murder within the prison. A franker attitude might well have been

for the Superintendent to swear that prison praxis handed down from

the British rule has been this and no fresh

orientatiO'n to the prison

C staff or re-writing of the jail manual having taken ·place, the Past has

persisted into the Present and he is an innocent agent of this m­

herited incarceration ethos.

Nothing

is averred to validate the near-strangulation of the

slender liberty of locomotion inside a prison,

barring vague genera-

D lilies. The seat of crime is ordinarily explosive tension, as stresso­

logists have substantiated and the award of death sentence

as against

life sentence turns on a plurality of imponderables. Indeed, not in­

frequently on the same or similar facts judges disagree

On the award

of death sentence.

If the trial Court awards death sentence the Jail

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Superintendent holds him dangerous enough to be cribbed day and

night.

If the High Court converts it to a life term the convict, accord­

ing to prison masters, must undergo a change of heart and become

sociable, and

if the Supreme Court enhances the sentenee

·he reverts

to

wild

Hfe! Too absurd to be good! To find a substantial difference

in prison treatment between the two-'Jifers' and 'condemned' con-

victs-is to infer violent conduct or suicidal tendency based on the

fluctuating sentence alone, for which no expert testimony

is forth­

coming.

On the other hand, the 'solitary' hardens the criminal, makes

him desperate and breaks

his spirit or makes him break out of there

regardless of risk.

In short, it is counter-productive.

A

few quotes from a recent American study on prisons, hammer

home the negativity of the

"solitary".(') The "hole", or solitary

confinement,

is often referred to as an

"Adjustment Center" (AC).

Here

is one man's memory of it

ifom San Quentin prison in Cali­

fornia.

When I first

saw it, I just couldn't believe it. It was a

dungeon. Nothing but cement and filth. I could not imagine

(I)

Rosers G. Lamphear : Freedom From Crime throuah the M. Sidhi

Program, pp. 128-129.

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 435

who have lived in there before me. All day I just sat there

on

my bunk, in a sort of daze, staring at my new abode .....

. . . . Instead of bad spring there was a flat steel plate

(which

is the same throughout the Hole): the window was

cemented up, except for the very top section, which was

one quarter the standard size, and without any glass panes, thu; exposing the occupant to all kinds of weather (the

nin would actually come through, into the cell); there was

no shelving whatsoever-not so much as a hook to hand a

t•>Wel or clothes on (and it was against the regulations to

fix up a clothes line; so anyone who did so, did it at the

ri;k of being beefed). Jn short, there was nothing; just four

walls, and room enough to take five paces-not strides-

from one end of the cell to the other. Nothing to break the

monotony of cement except the usual

graffiti. The window

was too high

f9r a view of anything but the roof of the wing

next door.

It was truly a dungeon; a bomb; a crypt. And

it was

"Home" for twenty four hours a day, every day."(

1

)

One prisoner wrote :

I swear I want to cry sometimes, when I look at some

of the older prisoner who have been in prison so long that

they hold conversations with people who aren't there and

blink their sad

eyes once every four or five minutes .

. . . All I can do at this

stage. of the game is to look at

my older brothers of oppression and wonder if this will be

me 15 or 20 years from now. Gin I hold on? Will I last?

Will I some day hold conversations with ghosts?

. . . I have seen cats leave here twice

as hostile, twice

as confused, twice as anti-social than they were when they

entered. Depleted of nearly all of them mental justices, they

are

"thrown back" into society where they are expected to

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function like normal human beings. And then society G

wonders

why recidivism is so high in the country; why a

man serves five or te11 years in prison only to go out and

con1mit the same act again.

They seem to fall apart emotionally and mentally;

To say that I became a nervous and paranoid wreck

would be understatement. My mother would end up crying

(1) Ibid pp.

131-132._

H

436 SUPREME COURT REPORTS [1979] ! S.C.R.

A every time 'she came to see me, because of my nervousness,

which caused my hands to shake, and I had developed a

sty in my right eye."

When handling the inner dynamics of human action, we must

be informed of the basic factor of human psychology that "Nature

B abhors a vacuum; and man is a social animal". (Spinoza). In such

an area we must expect Brandies briefs backed by opinions of spe­

cialists on prison tensions, of stressologists

on the etiology of crime

and of psychiatrists who have focussed attention on behaviour when

fear of death oppresses their patients. A mere administrative officer's

deposition about the behaviourial may be of men under contingent

C sentence of death cannot weigh with us when the limited liberties of

expression and locomotion of prisoners are sought to be unreason­

ably pared down

or virtually wiped out by oppressive cell insulation.

No medical or psychiatric opinion or record of jail events as a

pointer,

is produced to

prove, even prima facie, that this substan­

tial negation of gregarious jail life is reasonable. Where total depri-

D vation of the truncated liberty of prisoner's locomotion

is challenged

the validatory burden is on the State.

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The next fallacy in the counter-affidavit is that if the murder is

monstrous deserving death sentence the murderer

is a constant

monster manifesting continued dangerousness. Does this stand to

reason? A woman who coldly poisons all her crying children to death

to elope with a paramour may be guilty of maniacal murder and,

perhaps, may be awarded death sentence.

But is she, for that reason,

a dangerously violent animal?

Other dfabolical killings deserving

death penalty but involving no violence, in special social se~tings,

may be visited with life term; though the offender is a ghastly

murderer. Imagine how the respondent's test of behaviourial violence

breaks' down where death sentence

is demolished by a higher

court

for the r~ason it has been on his head for years or he is too young

or too old,

or commuted by the

President for non-legal yet relevant

considerations as in the case of patriotic 'terrorists. The confusion

between sentencing criteria and blood-thirsty p1"ison behaviour is

possible to understand but not to accept.

Having dealt with some of the untenable pos1tlons taken by the

affient, I move on to a consideration of the torture content of solitary

confinement. The Batra treatment is little short of solitary confine­

m~nt. This inclination persuaded the court to make the interim

direction on 5th May,

1978 :

"We direct that until further orders of this Court the

petitioner Sunil Batra will not be kept in 'confinement' as

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J) 4 37

contemplated by S. 30(2) of the Prisons Act, 1894. A

Reasons to follow".

Even so, from a larger angle, it becomes necessary to explain

why a sensitized perspective repels judicial condonation of solitary

confinement of sorts. What is solitary confinement, experiencially,

juristically, and humanistically understood? At the close of this

consideration, a legal definition of solitary confinement may be given

to the extent necessary in this case. •

American high-security prisons, reportedly with their toughs,

tantrums and tensions, may not help comparison except minimally.

Even so, the Additional Solicitor General drew our attention

to

observations of the

U.S. Court of Appeals decisions affirming segre­

gated confinement in maximum security prisons. His point was

autonomy for the jail administration in matters of internal discipline,

especially where inmates were apt to be :

(1) "threat to themselv><s, to others, or to the safety and

security of the institution. Such a policy

is perfectly proper and lawful and its administration requires the highest degree

of expertise in the discretionary function of balancing the

security of the prison with fairness to the individual con­

fined. In the case at bar the record reveals that appellant's

confinement in segregation

is the result of the considered

judgment

of the prison authorities and is not

arbitrary".

f In the specific cases cited the facts disclose some justification for

insulation.

"Appellant has indeed, been in segregation [or a protracted

period, continuously fo.r more than two years prior to the

present hearing. However, his record during these ·separate

periods when he was allowed confinement "within the popula­

tion" of a _prison reflects a history of participation, directly or

indirectly, in conduct of extreme violence. Although his con­

duct in segregation has since been entirely satisfactory the

trial court was manifestly correct in determining that appellant

has been denied no constitutioual right and that the deter­

mination of whether appellant presently should be considered

a threat to others

or

the' safety or security of the penitentiary

is a matter fo.r administrative decision and not the courts."

(I) Ktnn1th Grahm v. J. T. Willingham, Federal Reporter, 2d Series Vol. 384

F.

2d. p. 367.

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438 SUPREME COUH REPORTS (1979] 1 S.C.R.

But. in our cases, no record revealing balancing of considerations

or compelling segregation or murderous in-prison violence save that he

is potentially 'under death sentence',

is shown. To be mindless is to

be cruel and that

is reflex action of the jail bosses when prisoners are

routinely sent to the solitary cell on hunch or less. Alleging

chance&

of killing or being killed as the alibi for awarding 'solitary' is an easy

'security' phobia which

'shows little appreciation of the suffering so

heaped. And abuse

is undetected and indiscriminate in that walled

world within the world. "Commenting on solitary cellular confinement, Pandit

Nehru observes that the gaol department adds

to the sentence

of the court an additional and very terrible punishment, so

far

as adults and even boys accused of revolutionary activi­

ties are concerned. Over-zealous prison administrators in the

past have contributed not a little to the disrepute and

un­

popularity of the Government by making reckless use of this

on political offenders or detenus."(')

The great Judge Warren, CJ in Trop. v. Dulles(') refers to the con­

demnation of segregation and observes :

"This condemnation of segregation is the experience years

ago of people going stir crazy, especially in segregation".

That compassionate nov5list, Charles Dickens, in his 'American

Notes and Pictures from Italy' describes the congealing cruelty of 'soli­

tary confinement' in a Pennsylvania Penitentiary (p. 99) :

"I am persuaded that those who devised this system of

prison discipline, and th06e benevolent gentlemen who carry

it into execution, do not know what it

is that they are doing.

I believe that very

few men are capable of estimating the

immense amount of torture and agony which this dreadful

punishment prolonged for years, inflicts upon

the sufferers;

and in guessing at it myself, and in reasoning from what I

have seen written upon their faces, and what

to my certain

knowledge they

feel within, I am only the more convinced

that there

is a depth of terrible endurance in it which none

but the sufferers themselves can fathom, and which no man

has a right to inflict upon his fellow-creatures. I hold this

slow and daily tempering with the mysteries of the brain,

to

be immeasurably worse than any torture of the body; and

(I) B. K. Bhattacharya: Prisons, p.111.

(2) Leonard Orland, Justice, Punishment, Treatment, p. 297.

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 439

because its ghastly signs and tokens are not so palpable to

the eye and sense of touch as scars upon the flesh; because

its wounds are not upon the surface and it extorts

few cries

that human ears can hear; thereore, I the more denounce it,

as a secret punishment which slumbering humanity is not

roused up to stay. I hesitated once, debating with myself

whether,

if I had the power of saying

"Yes" or "No", I

would allow

it to be tried in certain cases, where the terms of

imprisonment were short; but now, I solemnly declare, that

with

no rewards or Honours could I walk a happy man

be­

neath the open sky by day, or lie down upon bed at night,

with

the consciousness that one human creature, for any

length of time,

no matter what lay suffering this unknown

punishment in his silent cell, and I the cause

or I consenting

to it in the least

degree."

A

B

c

Viewing cellnlar isolation from a human angle, that literary genius,

Oscar Wilds, who crossed the path of the criminal law, was thrown D

into prison and wrote De Profundis, has poetized in prose, with pes­

simism and realism, the lonely poignancy of the iron infinnary. I

quote:

"A great river of life flows between me and a date so

distant. Hardly,

if at all, can you see across so wide a

waste

... suffering is one very long moment. We cannot

divide

it by seasons. We can only record its moods, and

chronicle their return. With

us time itself does not progress.

It revolves. It seems to circle round one centre of pain. The

paralysing immobility of a life every circumstance of which is

regulated

... according to the inflexible laws of an iron

formula : this immobile quality, that makes each dreadful

day in the very minutest detail like its brother, seems to

communicate itself to those external forces the very essence

of whose existence is ceaseless change .

..... For us there is only one season, the season of sorrow.

The very sun and moon seem taken from

us. Outside. the

day may be blue and gold, but the light that creeps down

through the thickly-muffled glass of the small iron-barred

window beneath which one sits

is grey and niggard. It is

always twilight in one's

celL as it is always twilight in one's

heart. And in the sphere of thought, no less than

in the

sphere of time, motion is no

more."

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440 SUPREME COURT REPORTS [1979] 1 s.c.R.

A And Shri Jawaharlal Nehru has recorded in his Autobiography in the

Thirties(') :

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"Some individuals, sentenced for revolutionary activities

for

life or Jong term of imprisonment, are often kept

in solitary confinement for long period

... But in the case of

these perscms-usual\y young

boys-they are kept along

although their behaviour

in gaol might be exemplary. Thus

an additional and very terrible punishment is added by the

Gaol Department to the sentence of the Court, without

any

reason therefor. This seems very

extraor~inary and hardly

in confirmity with any rule of law. Solitary confinement,

even !or a short period,

is a most painful affair, for it to be

prolonged for years is a terrible thing. It means the slow

and continuous deterioration of the mind, till it begins to

border on insanity; and the appearance of a look of vacancy,

or a frightened animal type

of expression. It is killing of the

spirit

by degrees, the slow vivisection of the soul. Even

if a

man survives

it. he becomes abnormal and an

absolute mis­

fit in the world."

Much has been said in the course of the argument about ihe

humanism imparted by interviews and letters. Nehru wrote' about the

Naini Prison, which retains its relevance for many prisons even today,

speaking generally

:-"Interviews are only permitted once in three months, and

so are letters--a monstrously long period. Even so, many

prisoners cannot take advantage of them. If they are illite­

rate,

as most are, they have

to rely on some gaol official to

write

on their behalf : and the latter, not being keen on add­

ing to his other work, usually avoids it.

Or, if a letter is

written, the address is not properly given and the letter does

not reach. Interviews are still more difficult. Almost in­

variably they depend on a gratification for some good official.

Often prisonen; are transferred to different gaols, and their

people cannot trace them. I have met many prisoners

who

had lost complete touch with their families for years, and

did not kno'v what had happened. Interviews, when they

do take place after three months or more are most extraordi­

nary. A number of prisoners and their interviewers are

placed together on either side of a barrier, and they all try

to talk simultaneously. There

is a great deal of shouting at

each other, and the slight human touch that might have

come

from the interview is entirely

absent."

11) Jawaharlal Nehru, Ao Autobiography, p. 222.

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, I.) 441

The curse of the system is, in Nehru's words :

"Not the least effort is made to consider the prisoner as

an individual, a human being, and to improve or look after

his mind. The one thing the UP administration excels is in

keeping its prisoners. There are remarkably few attempts

to escape. and I doubt if one in ten thousand succeeas in

escaping."

A sad conunentary on the die-hard 'solitary' in some Indian Jails

is gleaned from a recent book, "My Years in an Indian Prison-Mary

Tyler" (Victor Gallantz Ltd.; London 1977). The author, a young

British, Mary Tyler, was in a female ward, kept solitary as a naxa­

lite, and deported eventually. She writes :

"By ten o'clock that morning I found myself locked in a

room fifteen feet square and completely bare except for a

small earthen pitcher and three tattered, coarse, dark grey

blankets stiff with the grease and sweat of several generations

of pri·soners, which I folded to make a pallat on the stone

floor.

My cell formed one corner of the dormitory building

and looked out on to a yard

at the end

of the compound far­

thest from the gate. The two outer walls were open to the

elements; instead of windows, there were three four-foot wide

openings barred from the floor to a height of eight feet. The

door was fastened with a long iron bolt and heavy padlock;

the walls, covered in patchy whitewash, were pock ·marked

high and low with holes of long-removed nails. In one cor­

ner a rickety waist-high wooden gate concealed a latrine, a

niche with raised floor, in the centre of which was an oblong

slit directly over a cracked earthen tub. My latrine jutted out

adjacent to the one serving the dormitory where the rest of

the women prisoners slept. The open drains from both these

latrines and Kalpana's

ran past the two outer walls of my

cell, filling the hot nights with a stench that made me

wretch. The crevices between the broken concrete and crum­

bling brickwork of the drains were the breeding

irrounds of

countless

flies and giant mosquitoes that, as if

by ~utual pre­

arrangements, performed alternate day and night shifts in my

cell to disturb

my sleep and rest.

My first

few days in 'solitary' were spent as in a dream,

punctuated only by the Chief Head

Warder's morning and

evening rounds to check the lock, the bustling appearance

of the matine bringing food and wate.r, or the wardress

fumbling with her keys

to unlock me to clean my teeth and ooth,.s.

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442

SUPREME COURT REPORTS [1979] 1 S.C.R.

During the daytime, the key to the gate of the female ward

was in the custody of a 'duty-warder', one of the hundred

am! fifty warders in the jail. He was

responsible for opening

the gate to admit convicts bringing food, the doctor or other

persons on essential business. Administration of the jail was

in the hands of a staff of Assistant Jailors and clerks, sub­

ordinate to the Jailor who had overall responsibility for the

day to day running of the prison. He was answerable to the

most exalted personage in the jail hierarchy, the Superinten­

dent.

His unpredictable temper and behaviour were a source of

as much exasperation to his subordinates as to ourselves.

He demonstrated his authority by reversing his previous ins­

tructions so many times that in the end nobody was really

sure what he wanted. The jail staff operated by by-passing

him as much as possible so as not

to get caught out if he

happened to change his

mind."

Judicial opinion acr06s the Atlantic, has veered to the view that

it is near-insanity

to inflict prolonged solitary segregation upon

prisoners.

And the British System has bid farewell to solitary confinement as a

punishment. I refer

to these contemporary developments not to hold

on their basis but to get a feel of this jail within a jail. Without

empathy, decision-making may be futility.

It is fair to state that

Shri Soli Sorabjee, expressed himself fur jail

reform and his heart was with those whose limited liberty was ham­

strung, although he pleaded strenuously that the reformist goal could

be reached by reading new meaning without voiding the provision. So

he tried to tone down the acerbity of the isolation imposed on Batra

by calling it statutory segregation, not solitary confinement. But, as

will be later revealed. the former hides the harshness verbally but

retains the sting virtually. Presbyter is priest writ large.

A J:iost of criminological specialists has consistently viewed with

consternation the imposition of solitary confinement

punitively-and,

obviously, preventive segregation stands on a worse footing since it

does not have even a disciplinary veneer. I may, with

ecl~ctic brevity,

quote from the wealth

of juristic erudition presented to us by Sbri

Chitale

in support of bis thesis that forced human segregation,

whatever

its label, is a barbaric cruelty which has outlived its utility and the

assumption that condemned prisoners or lifers are dangerously violent

is a facile fiction.

J I

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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, l) 443

"One main thrust, however, of the congregate school came

on the

issue of the effects of constant and unrelieved isolation

of prisoners. It

was unnatural, the New York camp insisted,

to leave man in solitary, day after day, year after year;

indeed, it

was not unnatural that it bred

insanity."(

1

)

"Harlow

and Harlow (1962) have conducted experiments

with species closely related

to human beings.

Of special

interest are the variables involved in the causation of psycho­

pathological syndromes in man. In measuring the relation

between social environment and social development, Harlow

reports that the most constant and dramatic finding

is that

social isolation represents the most destructive abnormal

environment.

As this isolation progresses from partial to

total, the severity of impairment increases, ranging from

schizord-like postures to depressive-type

postures."(')

"Eloquent testimony to man's need for belonging, accept­

ance, and approval

is provided by the

exp~rience of small

groups of scientists,

officers, and enlisted personnel who voJuntarily subjected themselves to isolated antartic living

for the better part of a year (Rohrer, 1961). During this

period troublesome individuals were occasionally given the

"silent treatment" in which a man would be ignored by the

group

as if

lfe did not exist. This 'isolation' procedure

resulted in a syndrome called the 'long eye', characterized by

varying combinations of sleeplessness, outbursts of crying,

hallucinations, a deterioration in habits of personal hygiene,

and tendency for the man to move aimlessly about or to

lie in

his bunk staring into space. These symptoms cleared up

when he was again accepted by and permitted to interact

with others in the

group."(

3

)

B

c

D

E

F

"The use of the dark or isolation cell-the hangover of the G

medieval dungeon-known in prison parlance

as

'Klondika·,

is probably the most universally used prison punishment in

(1) David J. Rotman. Historical persp~ctives-Justice, Punishment, Treat­

ment by Leonard Oreland, 1973, p. 144.

(2) Psychiatrist and the Urban-setting-C..omprehensive Text Book of Psychia-

trist· II, 2nd Ed. Vol. II (1976) by A. M. Freeman. Harlod 1. Kaplan, H

Benjamin J. Sedock, p. 2503.

(3) James C. Coleman-Abnormal Psychology and Modern Life ._ IOS.

12-526SCI/78

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444 SUPREME COURT REPORTS Ll 979] 1 S.CR.

the history of American penology.(!)

Some prisoners are kep,t in these gloomy places for months.

What to do with a rebellious prisoner bedevils all wardens,

but a sustained sojourn in a punishment cell is not the answer.

The excessive use of Klondike is a grim example of what is

known to students of corrections as 'deed end' penology.

Resorting to

it for long periods of time is an illustration ot

total lack of imagination and outmoded prison

administra­

tion, all too current in most of our prisons even today.

Not much different from the dark or isolation cell is the

'segregation' block or ward.

In this isolated part of the prison

an inmate may

be placed because he is

'uncooperative', i'

considered dangerous or a bad influence, or for some other

reason arrived

at by the warden or

his deputy in charge ot

custody."

A much more recent case which bids well to become a

cause celebre is that of Robert Stroud who has spent approxi­

mately the same period of time

in 'segregation' in the federal

prisons of Leavenworth and Alcatraz.

Stroud was first sent

to prison when he was nineteen for killing a man in Alaska

in 1909. While in the Leavenworth prison he killed a guard

in the dining room for which

he was sentenced to be hanged.

This sentence was commuted to life by

President Woodrow

Wilson. While in prison in 'segregated cell', Stroud became

an expert

in disease of birds and is alleged to have become

a world-wide authority in his field.(')

"Regarde,d as a rational method of treatment, cellular con­

finement is a curious monument of

hnman perversity. That

it should have been established shows the absolute ignorance

of criminal nature which existed

at the time; that it should

still persist shows

the present necessity for a widespread

popular knowledge of these matters.

It may

be possible. to

learn to ride

on a wooden horse, or to swim

on a table, but

the solitary cell docs not pro'iide ~even wooden substitute for

the harmonising influence of honest society.(')

Criminological jurists like

Dr. Bhattacharya, who

was also judge of the

Calcutta High Court, take

the view that cellular or separate confinement deserves to be condemned :

(I) Harry Elmer Barn.,. and Negley K. T"tcrs---Ncw Horzons in Crimino­

logy, 3rd Ed. 2 p. 351-352.

(2) Royal Commission on Capital Punishment 1949-1953 Report pp. 21ll-2t7.

(3) Havelock Ellis, The Criminal, 5th Edn. 1914, p. 327.

,__

•

' ..

'

·- ..

•

SUNIL BATRA v. DELlll ADMN. (Krishna Iyer, !) 445

"Many penologists in India take exception to !he solitary

confinement rule.

It is hard to differentiate between this as

a mode of judicial punishment and by way

of a jail punish­

ment for the results are equally disastrous

to the physical and

mental health of those 'subjected to

them". (

1

)

Yahya Ali, J., in 1947, long before our constitutional charter came

into being, had expressed himself strongly against 'solitary confinement'

and we feel more strongly about it and against it. Our humane order

must reject 'solitary confinement' as horrendous. The learned Judge

observed :

(')

"Solitary confinement should not be ordered unless there

are spc-cial features appearing in the evidence such as extreme

violence

or brutality in

!he commission of the t)ffence. The

only reason given

by the Magistrate is !hat the

·sanctity of

home

life has become to him (the appellant) a mere mockery

and the desire

to

take what he wan!£ regardless of ownership

is not

in him'. This can be said of every person convicted

under

S. 379, Penal Code and I do not consider that to be a

circumstance justifying the passing of

an order of solitary

confinement. The direction regarding solitary confinement

will

be

deleted."

"As regards the sentence relating to solitary confinement the

attention of the Magistrate is invited to my judgment in

Criminal Appeal No.

114 of 1947. As pointed out in that

judgment although the imposition of the sentence of solitary

confinement was

legal, under the Larceny Act of 1861 (24

and 25 Viet. Ch. 96) the power was very rarely exercised

by a criminal Court.

By enacting 56 and 57 Viet. Ch. 54 on

22-9-l 893 the provisions in Larceny Act relating to solitary confin~ment which had become obsolete for several decades

by that date were formally repealed. A century of experience

has thus led to its abandonment

in the

United Kingdom and

at the present day it stand~ condemned and bas generally

given place to work

in association during the day and

confine­

ment in cell for the night, in cases where isolation at night

is considered necessary for a brief time for particular prisoners

and exclusively for the maintenance of prison discipline.

Although in the medieval times under the influence of the

ecclesiastics

it was considered that cellular confinement was

a

(I) B. K. Bhattacharya,' Prisons, p. 117.

(2) AIR 1947 Ma<lras 381.

A

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446 SUPREME COURT REPORTS [1979] 1 s.c.11..

means of promoting reflection and penitence, it came since

to be realised that this kind of treatment leads to a morbid

state of mind and not infrequently to mental derangement and

as a form of torture it fails in its effect on the public. It

must, therefore, so Jong as is part of the Indian Penal Code,

be administered, if ever in the most exceptional cases of unparallelled atrocity or brutality."

The Law Commission of India

in its 42nd Report took the view

that solitary confinement was

"out of tune with modern thinking and

should not find a place in the Penal Code as a punishment to be

ordered by any criminal court". Some ambivalent o\Jservation that

such treatment may perhaps be necessary

as a measure

of jail discipline

has been made without any special supportive reasons

as to why such

a penelogical horror

as long solitary confinement should be allowed

to survive after death within the prison. Probably, all that was meant

by the Commission was that, for very short spells and

under ameliora­

tive conditions, the 'solitary' may be kept alive as a disciplinary step.

The propositions of law canvassed

in Batra's case turn on what

is solitary confinement

as a punishment and what is non'punitive

custodial isolation of a prisoner awaiting execution. And secondly,

if

what is inflicted is, in effect, 'solitary', does section 30(2) of the Act

authorise it, and,

if it does, is such a rigorous regimen constitutional.

In one sense, these questions are pushed to the background,

because

Batra's submission is that he is not 'under sentence of death' within

the scope of section 30 until the Supreme Court has affirmed and

Presidential mercy has dried up by a final 'nay'. Batra has been

sentenced to death by the Sessions Court. The sentence has since

been confirmed, but the appeal for Presidential commutation are

ordinarily precedent to the hangmen's lethal move, and remain to be

gone through. His contention

is that solitary confinement

is a sepa­

rate substantive punishment of maddening severity prescribed by

section 73 of the Indian Penal Code which can be imposed only by

the Court; and so tormenting is this sentence that even the socially

less sensitive Penal Code of 1860 has interposed, in its cruel tenderness,

intervals, maxima and like softening features in both sections 73 and

7

4.

Such being the penal situation, it is argued that the incarceretory

insulation inflicted by the Prison Superintendent on the petitioner 1s

virtual solitary confinement unauthorised by the Penal Code and, there­

fore, illegal. Admittedly, no solitary confinement has been awarded

to Batra.

So, if he is de facto so confined it is illegal. Nor does

a

sentence of death under section 53, I.P.C. carry with it a supplementary

-

•

•

•

-

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J) 447

secret clause of solitary confinement. What warrant then exists for

solitary confinement on

Batra? None. The answer offered is that

he is not under solitary confinement. He

is under 'statutory

confine·

ment' under the authority of section 30(2) of the Prisons Act read with

section

366(2) Cr.

P.C. It will be a stultification of judicial power if[

under guise of using section 30(2) of the Prisons Act, the Superinten­

dent inflicts what

is substantially solitary confinement which is a species

of punishment exclusively within the jurisdiction of the criminal court.

We hold, without hesitation, that

Sunil Batra shall not be solitarily

confined. Can he be segregated from view and voice and visits and

comingling, by resort

to section 30(2) of the

Prisons Act and reach

the same result?

To give the answer we must examine the essentials

of solitary confinement to distinguish it from being 'confined in a cell

apart from all other prisoners'.

If solitary confinement is a revolt against

society"s humane essence,

there

is no reason to permit the same punishment to be smuggled into

the prison system by naming it differently. Law

is not a formal label,

nor logomnchy but a working technique of justice. The Penal Code

and the Criminal Procedure Code regard punitive solitude too harsh

and the Legislature cannot be intended to permit

preventive solitary

confinement, released even from the restrictions of section 73 and 74 I.P.C., Section 29 of the Prisons Act and the restrictive Prison Rules.

It would be extraordinary that a far worse solitary confinement, masked

as safe custody. sans maximum, sans intermission, sans judicial over­

sight or natural justice, would be sanctioned. Commonse11se quarrels

with such nonsense.

A

B

c

D

E

For a fuller comprehension of the legal provisions and their cons­

truction

we may have to quote the relevant sections and thereafter F

make a laboratory dissection thereof to get an .understanding of the

components which make up the legislative sanction for semi-solifary

detention

of

Shri Batra. Section 30 of the Prisons Act rules :

"30. (1) Every prisoner under sentenc~ of death shall, imme-

diately on his arrival in the prison after sentence, be G

searched by,

or .by order of, the Deputy Superinten-

dent. and all articles shall be taken from him which

the Deputy

Superintendent deems it dangerous or

inexpedient to leave in his possession.

(2) Every such prisoner, shall be confined in a cell apart H

from all other prisoners, and shall be placed by day

and

by night under charge of a

guard."

A

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c

D

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448 SUPREME COURT REPORTS [1979] 1 S.C.R.

This falls in Chapter V relating to discipline of prisoners and has to

be read

in that context. Any separate confinement contemplated in

section

30(2) has this disciplinary limitation as we will presently see.

It we pull to pieces the whole provision it becomes clear that scction-30

can be applied only to a prisoner "under sentence of Jcath". Section

30(2 J which speaks of "such" prisoners necessarily relates to prisoners

under sentence of death. We have to discover when we can designate

a prisoner as one under sentence of denth.

'fhc next attempt is to discern the n1eaning of confinc1T1cnl "in a

cell apart from all other prisoners". The purpose is to maintain dis­

cipline and discipline is to avoid disorder, fight and other untoward

incidents,

if apprehended.

Confine111ent inside a prison docs not

necess._trily import cellular

isolation. Segregation of one person all alone in a single cell is solitary

confinement. That

is a separate punishment which the

Court alone

can impose.

It would be a subversion of this statutory

provision

(section 73 and 74 I.P.C.) to impart a meaning to section 30(2) of

the Prisons Act whereby a disciplinary variant of solitary confinement

can be clamped dow11 on a prisoner, although no court has awarded

such a punishment, by a mere construction, \vhich clothes an executive

officer, who happens to be the governor of the jail, with h::rsh judicial

powers

to

be exercised by punitive restrictions and unaccountable to

anyone, the po,ver being discretionary and disciplinary.

l ndeed, in a jail, cells are ordinarily occupied by more than one

inmate and community life inside dormitories and cells

is common.

Therefore,

"to be confined in a cell" docs not compel us tel' the conclu­

sion that the confinement should be in a

solitary cell.

"'Apart from a11 oth~r prisoners" used in section 10(2) is also

a phrase of flexible import. 'Apart' has the sense of 'To one side,

aside,

... apart from each other, separately in

action or function'

(Shorter Oxford English Dictionary). Segregation into an isolated cell

is not warranted by the word. All that it connotes is that in a cell

G where there are a plurality of inmates the death sentencee will have

to be kept separated from the rest in the same cell but not too close to

the others. And this separation can be effectively achieved because

the condemned prisoner will be placed under the charge of a guard by

day and

by night. The guard will thus stand in between

the several

inmates and the condemned prisoner. Such a :neaning preserves the

H disciplinary purpose and avoids punitive harshness. Viewed function­

ally, the separation

is authorised, not obligated. That is to say, if

discipline needs it the authority shall be entitled to and the prisoner

-

•

•

SUN!L BATRA v. DELHI ADMN. (Krishiut Iyer, J) 449

shall be liable to separate keeping within the same cell as explained

above. "Shall" means, in this disciplinary context, "shall be liable to".

If the condemned prisoner is docile and needs the attention of fellow­

prisnners nothing forbids the jailor from giving him that facility.

When we move on to Chapter XI we come across Prison Offences

which are listed in section 45. Section 46 deals with punishment for

such offences. We reproduce the relevant portion :

"46. The Superintendent may examine any person touch­

ing any such offence, and determine thereupon and punish

such offence by-

( 6) imposition of handcuffs of such pattern and weight,

in such manner and for such period, as may be pres­

cribed

by rules made by the Governor General in

Council;

(7) imposition of fetters of such pattern and weight, in

such manner and for such period, as may be prescribed

by the rules made by Governor General in Council:

(8) separate confinement for any period not exceed

in)'

A

8

c

three months; E

Explanation :-Separate confinement means such con-

finement with or without Jabour

as secludes a prisoner

from communication with, but not from sight of

other prisoners, and allows him not

less than

•me

hour's exercise per diem and to have his meals rn

association with one or more other prisoners;

( 10) cellular confinement for any period not exceeding

fourteen days;

F

Provided that, after such period of cellular confinement G

an

interval of not less duration than such period must

elapse before the prisoner

is again sentenced to cellu-

lar or solitary confinement :

Explanation :--Cellular confinement means such

confinement with or without labour

as entirely H

secludes a prisoner from communication with, but not

from sight of other

prisoners."

'

.1

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450

SUPREME COURT REPORTS (1979] 1 S.C.R.

Sub-section ( 6) and (7) relate to "irons" and have relevance to

the Sobraj case which we will presently deal with. Sub-section ( 8)

speaks of "separate confinement" for any period not exceeding three

months.

There is a further explanation which to some extent softens

the seclusion. It obligates the authority not to keep the prisoner

"from

sight of other prisoners" and allows him not less than one hour's exercise

per diem and to have his meals in association with other prisoners.

Thus it is clear that even if a grave prison offence has been committed,

the punishment does not carry segregated cellular existence and permits

life

in association in mess and exercise, in view and voice but not in

communication with other

prisoners. Moreover, punitive separate

confinement shall

not exceed three months and section 4 7 interdicts the

combination

of cellular confinement and

"separate confinement" so as

not to exceed together the periods specified there. It is useful to men­

tion that "cellular confinement" is a stricter punishment than separate

confinement and it cannot exceed 14 days because of its rigour. It

entirely excludes a prisoner from communication with other prisoners

but it shall not exclude a prisoner from sight of other prisoners.

Solitary confinement has the severest sting and is awardable only

by Court. To island a human being, to keep him incommunicado

from his fellows is the story of the Andamans under the British,

of

Napoleon in

St. Helena ! The anguish of aloneness has already been

dealt with by

me and I hold that section

30(2) provides no alibi for

any form of solitary

or separated cellular tenancy for the death

sentence, save

to the extent indicated.

This study clearly reveals

that solitary confinement as a sentence

under the

Penal Code is the severest. Less severe is cellular confine­

ment under section 46(10) of the Prisons Act and under section 46(8).

Obviously, disciplinary needs of keeping apart a prisoner do not involve

any

harsh element of punishment at all. We cannot, therefore, accede

to any argument which will upset the scheme or subvert the scale of

severity.

Section 30(2), understood in the correct setting, plainly

excludes any trace

of severity and merely provides for a protective

dis­

tance being maintained between the prisoner under death sentence and

the other prisoners, although they are accommodated in the same cell

and are allowed to communicate with each other, cat together, see

each other and for all other practical purposes continue c0mmunity

life.

An analysis of the provisions of the Penal Code and of the Prisons

H Act yields the clear inference that section 30(2) relates to separation

without isolation, keeping

apart without close confinement. Whatever

the name, the consequence

of the 'solitary' regime has been maddening :

•

•

!l

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J)

"So many convicts went mad or died as a consequence of

the solitary regime that by the mid-19th century it was

generally abandoned ... "(

1

)

451

The 'separate system', the "silent system", the "hole" and other variants

possess

the same vice. In the present case we are satisfied that what

reigns

in Tihar for 'condemned' prisoners is sound--proof, sight-proof,

society-proof cellular insulation which

is a first cousin to solitary

confinement.

• - Section 366(2), Cr.P.Code has bearing on this discussion, for it

> states :

,

•

-----

"The Court passing the sentence shall commit the convded

person to jail custody under a warrant."

So, the Court awards only a single sen~nce viz., death. But it

cannot

be instantly executed because its executability is possible only

on confirmation

by the High Court. In the meanwhile, he cannot be

let loose for he must be available for decapitation

when the judicial

processes are exhausted.

So it is that section 365(2) takes care of

this awesome interregnum

by committing the convict to jail custody.

Form

40 authorises safe keeping. We may extract the relevant part

of the Form :

"This is to authorise and require you to receive the said

( prisoner"s name) into your custody in the said jail, together

with this warrant, and him there

safely to keep until you shall

receive the further 'Yarrant or order of this Court, carrying

into

effect the order of the said

Court".

This 'safe keeping' in jail custody is the limited jurisdiction of the

jailor. The convict

is not sentenced to imprisonment. He is not

sentenced to solitary confinement. He is a gnest in custody, in the

safo

keeping of the host-jailor until the terminal hour of terrestrfol farewell

whisks

him away to the halter. This is trusteeship in the hands of the

Superintendent, not imprisonment

in the true sense.

Sectfon 366(2)

Criminal Procedure Code (Jail Custody) and Form 40 (safely to keep)

underscore this concept, reinforced by the absence of a sentence of

imprisonment under section 53, read with section 73, Indian Penal

Code. The inference is inevitable that if the 'condemned' men were

harmed

by physical or mental torture the law would not tolerate the

doing since injury and safety are obvious enemies. And once this

qualitative distinction between

imprisonment and safe keeping within

(1) Britannica Book nf the Year 1975-·Events of 1974. p. 567.

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452 SUPREME COURT REPORTS [\979] I S.C.R.

the prison is grasped, the power of the jailor becomes benign. Batra,

and others of

his ilk, are entitled to every

creature comfort an,[ cultural

facility that compassionate safe-keeping implies. Bed am! pillow,

opportunity to commerce with human kind, worship

in shrines, if

imy,

games, books, newspapers, writing material, meeting family members,

and all the good things of life, so long as life lasts and prison facilities

exist. To distort safe-keeping into a hidden opportunity

to

cage the

ward and to traumatize him

is to betray the custody of the law. Safe

custody does not mean

deprivatioo, isolation, banishment from the

lenten banquet of prison life and infliction of travails as if guardianship

were best fulfilled by making the ward suffer near-insanity. May be,

the Prison Superintendent has the alibi of prison usage, and may be, he

is innocent of the inviolable values of our ConstiL.tion. May be,

there

is something wrong in the professional training and

th0 prison

culture. May be,

he misconceives his mission unwittingly to

help God !

'Whom God wishes to destroy, He first makes mad'. For, Jong

segregation lashes the senses until the spirit lapses into the neighbour-

D hood of lunacy. Safe-keeping means keeping his body and mind in

fair condition. To torture

his mind is unsafe keeping. Injury to his

personality

is not safe keeping. So, section 366,

Cr.P.C. forbids any

act which disrupts the man

in his body and mind. To preserve his

flesh and crush his spirit is not safe keeping, whatever else it

be.

E

Neither the Penal Code nor the Criminal Procedure Code lends

validity to any action beyond the needs of safety and any other depriva­

tion, whatever the reason, has not the authority of

law. Any executive

action which spells infraction of the life and liberty of a human being

kept

in prison precincts, purely for safe custody, is

a challenge to the

basic notion of the rule of law-unreasonable, unequal, arbitrary and

F unjust. A death sentence can no more be denuded of life's amenitie.s

than a civil debtor, fine defaulter, maintenance defaulter or co11temner

-indeed, a gross confusion accounts for this terrible maltreatment.

The Prisons Act (Sec. 30(2)) spells out with specificity the point

of departure from ordinary jail custody needed in the case of those

G 'under sentence of death'. That is to say, they get the same conditions

of prison life

as other general prisoners, except in two

particulaffi. During

hours of cellular confinement, condemned prisoners shall be secluded

from others. Dusk to dawn keeping aside

is one re'striction.

Such

sentences shall also be subject to twenty-four hour watch by guards.

Both these are understandable restraints in the setting of death sentence

H

as

reasooable coocomitants of safe custody without inflicting cruelty.

To exaggerate security unrealistically is morbidity and, if it is a

pervasive malady, deserves psychiatry for the prison administration.

..

..

•

•

~-

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J) 45 3

In C\Cry country, this transformation from cruelty to compassion within

jaih has found resistance from the echelons and the Great Divide

between pre-and-post Constitution penology has yet

to get into the

metabolism of the

Prison Services. And so, on the national ageiida

of prison reform

is on-going education for prison staff, humanisation

of

th~ profession and recognition of the human rights of the human

beings in their keep.

111 my judgment section 30(2) does not validate the State's treat­

ment of Batra.

To argue that it is not solitary confinement since

visitors are allowed, doctors and

officials come and a guard stands by,

is not to take it out of the category.

Since arguments have been addressed. let

us enquire what are the

vital components of solitary confinement" Absent statutory definition,

the

indication we have is in the Explanation to Paragraph 5 i 0 of the

Jail Manual :

"Solitary confinement means such confinement with or

without labour as entirely secludes the prisoner both from

sight of, and communication with, other prisoners."

The hard core of such confinement is (a) seclusion of the prisoner,

(b) from sight of other prisoners, and ( c) from

communic~tion with

othcl' {'risoners. To see a fellow being is a solace to the soul. Com­

munication with one's own kind is a balm to the aching spirit. Denial

of both, with complete segregation superimposed,

is the journey to

insanity. To test whether a certain type of

segrq~.ation is, in Indian

terms, solitary confinement, we have merely to veri[y whether interdict

on sig!1t and communication with other prisoners is imposed. It is no

use providing view

of or conversation with jail visitors, jail otliccrs or

stray relations. The crux of the matter is communication with other prisonas in full view. Bad fellows in misery have heartloads to un­

load and real conversation between them has a healing effect. Now that

we ha vc an Indian conceptualisation of solitary confinement in tl'ie

Prison Manual itself, lexical exercises, decisional erudition from other

countries and legomachic niceties with reference

to law dictionaries

are

supercrngatory. Even the backward psychiatry of the Jail Manual

considers continuation of such confinement as "likely to prove injurious

to mind or body" or even prone to make the person "permanently

unfit tu undergo such confinement" [vide paragraph 512(7) and (9)

of the Jail Manual].

In Words and Phrases (Permanent Edn.) solitary confinement as a

punishment is regarded as "the complete isolation of the prisoner from.

all human society and his confinement in a cell of considerable size so

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454 SUPREME COURT REPORTS [1979] I S.C.R.

arranged that he had no direct intercourse or sight of any human being

and no employment or instruction". It is worthwhile comparing ffie

Bllied but less harsh confinement called "close confinement" which

means "such custody, and only such custody as will S1fely secure the

production of the body of the prisoner on the day appointed for bis

execution".

A more practical identification of solitary confinement is what we

find in Black's Law Dictionary :

"In a general sense, the separate confinement of a priso·

ner, with only occasional access of any other person, and

that only at the discretion of the jailor; in a stricter sense,

C the complete isolation of a prisoner from all human society

and his confinement in a cell so arranged that he has no

direct intercourse with or sight of any human being, and no

employment or

instruction."

Complete isolation froni all human society is solitary confinement in

D its stricter sense. The separate confinement of a person with occasional

access of other persons

is also solitary confinement.

E

F

G

n

The ingenious arguments to keep Batra in solitudinous cell must

fail and he shall be given facilities and amenities of common

prisoners

even before he is 'under sentence of death'.

Is he under sentence of death? Not yet.

Clearly, there is a sentence of death passed against Batra by the

Sessions Court but it is provisional and the question

is whether under

section

30(2) the petitioner can be confined in a cell all by himself

under a 24-hour guard. The key words which call for hunwnistic

interpretation are "under sentence of death" and "confined in a cell

apart from all other prisoners".

A convict is 'under sentence of death' when, and only when. the

capital penalty inexorably operates by tbe automatic process of tho law

without any slip between the lip and the cup. Rulings of this Court

in

Abdul Azeez v.

Karnataka(') and D. K. Sharma v. M. P. State('),

though not directly on this point, strongly suggest this reasoning to be

sound.

Section 366 Cr. P.C. has pertinence at this point :

"366. (I) When the Court of Sessions passes a sentence

of death, the proceedings shall be submitted

to the High

Court and the sentence shall not be executed unless

it is con­

firmed by the High Court.

(I) [1977] (3)

S.C. R. 393.

(2) [1976] (2) S.C.R. 289.

-

•

~UNI1' BATRA v. DELHI ADMN. (Krishna Iyer, J) 45 5

(2) The Court passing the sentence shall commit the

convicted person to jail custody under a warrant."

A

So it is clear thit the sentence of death is inexecufable until 'con­

firmed by the High Court'. A self-acting sentence of death does not

come into existence

in view of the impediment contained in section

366(1) even though the

Sessions Court might have pronounced that B

sentence.

I go further. Let

us assume that the High Court has confirmed

~ ~ that death sentence or has de nova imposed death sentence. Even

.i there is quite a likelihood of an appeal to the Supreme Court and the

plenary power of the highest court extends to demolition of the death C

sentence. Naturally, the pendency of the appeal itself inhibits the exe-

., cution of the sentence. Otherwise, the appellate power will be frus­

trated, the man executed and the Supreme Court stultified if it upsets

the death sentence later. In our

view, when an appeal pends against

a conviction and sentence in regard to an offence punishable with death

sentence, such death sentence even if confirmed by the High Court shall

D

not work itself out until the Supreme Court has pronounced. Section

415 Cr.P.C. produces this result inevitably.

"415. (!) Where a person is sentenced to death by the

High Court and an appeal from the judgment lies to the

Supreme Court under sub-clause (a) or sub-clause (b) of

clause

(!) of article 134 of the Constitution, the High Court

shall order the execution of the sentence to be postponed until

the period allowed for preferring such appeal has expired,

or, if an appeal

is preferred within that period, until such

appeal

is disposed of.

·

(2) Where a sentence of death is passed or confirmed

by the High Court, and the person sentenced makes an appli­

cation to the High Court for the grant of a certificate under

article 132 or under sub-clause (c) of clause

(!) of article

1

34 of the Constitution, the High Court shall order

the execu­

tion of the sentence to be postponed until such application

is disposed of by the High Court, or if a certificate is granted

on such application, until the period allowed for preferring

an appeal to the

Supreme Court on such certificate has

expired.

E

F

G

( 3) Where a sentence of death is passed or confirmed H

by the High Court, and the High Court is satisfied that the

person sentenced intends to present a petition to the

Supreme

A

B

c

D

E

F

G

H

456 SUPREME COURT REPORTS [1979] 1 S.C.R.

Court for the grant of special leave to appeal under article

J 36 of the Constitution, the High Court shall order the execu­

tion of the sentence

to be postponed for such period

as it

considers sufficient to enable him to present such petition."

Article 72 and 161 provide for commutation of death scnte!1cc even

like sections 433, 434 and 435 Cr.P.C. The rules made under the

Prisons Act, taking note of theoe provisions, provide for a petition for

commutation by the pris~er. Rule 547 and rule 548 framed under

the Prisons Act relate to the subject of petition' for mercy :

"(a) I~ule!J fra111ed by the Gover11111e11t of Jndiu :

J.-Inunediately on receipt of a warrant ior execution

consequent on the confirmation by the High Court

of sentence

of death,

Jail Superintendent shall inform the convict con­

cerned that

if he

desireo to submit a petition for mercy, it

should be submitted in writing within seven days of the date

of stK:h intimation.

11.-If the convicts submit a petition within the period

o! seven days prescribed by Rule I it should be addressed

bo;h to the local Government and to the Governor-General

in Cooncil, and the Superintendent of Jail shall forthwith

despatch it, in duplicate,

to the Secretary to the local Govern­

ment in the Department concerned, together with a covering

letter reporting the date

fixed for the execution and shall

certify that the execution has been stayed pending receipt

of the orders of the

Governor in Council and the Governor

General in Council

on the petition if no reply is received

within

15 days from the date of the despatch of the petition,

the Superintendent shall telegraph

to the Secretary to the local

Government drawing attention

to the fact, but he shall in no

case carry out the execution before the receipt

of the local

Government's reply."

It follows that during the

pendency o~ a petition for mercy before

the State Governor or the President of India the death sel!tence shall

not be executed. Thus, until rejection of the clemency motion by these

•

•

•

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,

SUNJL BATRA v. DELHI ADMN. (Krishna Iyer, J) 45 7

two high dignitaries it is not possible to predicate that there is a ~elf

e:i:ecutory death sentence. Tuetefore, a prisoner becomes legally sub1ect

to a self-working sentenCt> of death only when the clemency apJ?li~alJon

by the prisoner stands rejected. Of course, thereafter section. 30( 2)

is attracted. A second or a third, a fourth or further applicauon !or

mercy does not take him out of that category unless there is a specific

order

by the competent authority staying the execution of the death

sentence.

The conclusion inevitably follows that Batra, or, for

thu1 matter,

others like him, cannot be classed as persons "under sentence of denth.'.

Therefore. the)' cannot be confined apart from other prisoners. Nor

is he sentenced to rigorous imprisonment and so cannot be forced ~o

do hard labour. He is ;n custody because the Court has, pending

confirmation of the death sentence, commanded the Prison Authority

to keep the sentencee in custody. The concrete result may

be clearly

set out.

Condemned

prisoners like Batra shall be merely kept in custody

and shall not be put to work like those sentenced to rigorous imprison­

ment. These prisoners shall not be kept apart or segregated except

on

their own volition since they do not come under section

30(2). They

shall be entitled to the amenities cf ordinary inmates in the prison

like games, books, newspapers, reasonably good food, the right to

expression, artistic

or other, and normal clothing and bed. In a sense,

they stand better than ordinary prisoners because they are not serving

any term of

rigcxrous imprisonment, as such. However, if their grega­

rious wishes induce them to live in fellowship and work like other

prisoners they should be allowed

to do so. To eat together,

to sleep

together, to work together, to live together, generaIIy spea1<ing, cannot

be denied to them except on specific grounds warranting such a course,

such

as homosexual tendencies, diseases, violent proclivities and the

like. But if these grounds are to

be the basis for revocation of advant­

ages to the prejudice of the sentencee he should be given a hearing

in

brief in essential compliance with the canons

of natural justice.

Deference

to the erudite efforts of Counsel persuades me, before I

part with this topic to refer to an anthology of Anglo-American

opinions, judicial and academic, which has been made

available to us,

to some of which I have made reference. The Judge~ in the United

States have had to deal with the issu~ and before I wind up on the

legal implications of solitary confinement I may refer to some of them.

Pw1itive segregation

is regarded as too harsh that it is limited to

110

more than 8 days except with Special approval. of the Commi.Hioner

A

B

c

D

E

F

G

II

A

458 SUPREME COURT REPORTS (1979) l S.C.R.

'

of Corrections in many American States ... The average period for this

type of punitive incarceration is five days. Now note what the U.S.

District Court states (

1

) :

"This punishment is imposed only after a formal written

notice, followed by a hearing before the disciplinary com-

B mittee."

c

D

The emphasis on limited periods and hearing before punisnment

have been built int9 the procedure for punishment of solitary conline­

ment. This

is important when we consider whether any form of harsh

imprisonment, whether of solitary confinement or of

ba• ftcters, should

not comply with natural justice and be severely lint1ted in duration.

Preventive solitude and fetters are an

a fortiori case.

An Afro-American citizen Sostre, brought a Civil Rights

actlon in

Sostre v. Rockfeller(') complaining of solitary confinement otherwise

called punitive segregation. The year

Jong stay in that segregation cell

was bitter. The sting

of the situation was 'human isolation loss of

group privileges'.

On this Judge held :

"This court finds that punitive segregation under the con­

ditions to which plaintiff was 'ubjected at Green Haven ts

physically harsh, destructive of morale, dehumanizing in the

sense that it is needlessly degrading, and dangerous to the

E maintenance of sanity when continued for more than a short

period

of time which should certainly not exceed 15

dfiyi".

F

G

H

The decision on pnnitive segregation confinement in Sostre v.

Rockfeller is of value since the case, as here, is one of indefinite puni­

tive confinement. The Court held that

it was so disproportionate that

it amounted to cruel and unusual punishment :

"The Court also holds that the totality of the circum­

stances to which Sostre

was subjected for

mar~ than a year

was cruel and unusual punishment when tested against

'the

evolving standards of decency that mark the progress of

maturing society'.

(Trap v. Dulles, 356

U.S. 86, 101 (1958)

(Opinion of Warren C.J.).

This condemnation of segregation is the experience years

ago of

people going stir crazy, especially in

segregation". (T.

320) The conditions which undeniably existed in punitive

segregation of Green Haven this Court finds, "could onlv

(1) Justice. Punishment, Treatment by Leonard Orland, The Free Press

New York, p. 293.

(2) 312 F. Suppl. 863 (1970).

•

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t

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•

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, Jc) 459

serve to destroy completely the spirit and undermine the sanity

of tile prisoner" Wright v. Machmann, supra, 387. F. 2nd

at 526, when imposed for more than fifteen days.

Subjecting a prisoner to the demonstrated risk of the loss of his sanity

as punishment for any offence in prison is plainly cruel and

unusual punishment as judged by present standards of

decency."

What is of considerable interest is the observation on procedural

due process which in our country has its counter-part in Axticle 21,

as expounded in Maneka Gandhi. The American Judge observed in

Sostre's case :

"V cry recently, the Supreme Court reiterated the firmly

established due process principles that where governmental

action may seriously injure an individual and the

reas<}nab1c­

ness of that action depends on fact findings, the

evidence used

to prove the governmenf s case must be disclosed to the indi­

vidual .w that he has an opportunity tu show that it is untrue.

The individual must also have the right to retain counsel. The

decision-maker"s co,nclusion must rest solelY' on the kgal

rules and evidence adduced at the hearing. In this con nee·

tion, tlte decisioH-111aker should J;tate the reasons for the deter­

n1ination and indicate the evidence upon which he relied.

Finally, in such cases, the High Court ruled, an impartiul

decis/{lfl-n;aker is esseniial.

The Court holds that pluintifj was, in effect, 'sentenced'

to 1 f1ore than a year in punitive segregation without the 1ni11i­

mal procedural drastic punishment upon a prisoner."

There has been considerable emphasis by the Additional Solicitor

General on the prison setting in truncating processual justice. The

U.S. District Court in Sostre had this to say :

"The difficult question, as always, is that process was

due. In answering that qnestion, we may not uncritically

adopt

the holdings of decisions that take color from contexts

where the shadings are as different from the instant case as

the cases

we have discussed:

As a generalization, it can be said that due process

embodies the differing rules of fair play, which through the

years, have become associated with differing

types of pro­

ceedings. Whether the constitution requires that a par­

ticular

right· obtain in a specific proceeding depends upon a

13-526 SCl/78

A

B

c

D

E

F

G

H

A

B

c

•

460 SUPREME COURT REPORTS [1979] 1 S.C.R.

·tomplexity of factors. The nature of the alleged right

involv•ed, the nature of the proceeding, and the. possible

burden

on that proceeding, are all considerations which must

be taken into account."

A meaningful passage in the appellate judgment in the same

case may be excerpted :

"We are not to be understood as disapproving the judg­

mei;t of many courts that our constitutional scheme does not

contemplate that society may commit

law breakers to the capricious and arbitrary actions of prison officials. If subs­

tantial deprivations

are to be visited upon a prison, it is

wise

that such action should at least be premised on facts ratio-

nally aetermined.

This is

no< a concept without meaning.

In most cases it would probably be difficult to

find an inquiry

minimally fair and rational unless the

prisoner were con­

fronted with the accusation, informed

of the evidence against

D

him."'

The Supreme Court of the United States in Wolf v. McDonnell(')

considered the question of due process and prison disciplinary hear­

ing, confrontation and cross-examination and even presence

of counsel.

Mr. Justice White, speaking for the majority, struck the balance that

E the due process clause demanded and insisted :

F

G

H

" .. We hold that written notice of the charges must be

given to the dsciplinary-action defendant in order to inform

him

of the charges and to enable him to marshal the facts and prepare a defence. At least a brief period of time after

the notice,

no less than 24 hours, should be allowed to the

inmate to prepare for the appearance before the Adjustment

Committee.

We also hold that there must be a "written statement by

the fact-finders as to the evidence relied on and reasons" for

the disciplinary action.

Although Nabraska does not seem

to provide administra­

tive review

of the action taken by the. Adjustment Com­

mittee, the actions taken at

such proceedings may involve

review by other bodies. They might furnish the basis of a

decision by the Director of Corrections to transfer an inmate

to another institution because he

is considered

"to be incor-

(I) 41 L. Ed. 2d p. 935.

•

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•

•

SUN!L BATRA v. DELHI ADMN. (Krishna lyer, J.) 461

rigible by reason of frequent intentional breaches of disci­

pline", and are certainly likely to be considered by the state

parole authorities in making parnle decisions. Written

records of proceedings will thus protect the inmate against

collateral consequences based on a misunderstanding of the

nature of the original proceeding. Further, as to the disci­

plinary action itself, the provision for a written record helps

to insure that administrators, faced with possible scrutiny

by state officials

and the public, and perhaps even the courts,

where fundamental constitutional rights may have been

abridged, will act fairly. Without written records, the inmate

will be at a severe disadvantage in propounding his own

cause to

or defending

himself from others. It may be that

there will be occasions when personal or institutional safety

are so implicated, that the statement may properly exclude

certain items

of evidence, bnt in that event the statement

should indicate the fact

of the omission. Otherwise, we per­

ceive no conceivable rehabilitative objective

or prospect of

prison disruption that can flow from the requirement of these

statements. We are also of the opinion that

the inmate

facing disciplinary proceedings should be allowed to call

witnesses and present documentary evidence in the defence

when permitting him

to do so will not be unduly hazardous

to institutional safety

or correctional

goals".

As to the right to counsel Mr. Justice White felt that then the pro­

ceedings may receive an "adversary cast", but proceeded to observe :

"Where an illiterate inmate is involved, however, or where

the complexity

of the issue makes it unlikely that the

inmatr

will be able to collect and present the evidence necessary for

an adequate comprehension of the case, he should be free

to seek the aid of a fellow inmate, or if that is forbidden, to

have adequate substitutes aid in the form to oolp from the

staff

or from a sufficiently competent inmate designated by

the staff. We need not pursue the matter further here, how­ever, for there is no claim that respondent Mcdonnell, is

within the class of inmates entitled to advice or help from

others in the course of a prison disciplinary hearing."

~ The learned Judge, however, felt that in situations where Habeas

C?rpus applications had to be made qualified inmates lflay be per­

mitted to serve as legal advisers.

Mr. Justice Mjshall went much farther than the majority and

observed:

A

B

c

D

E 1

F

G

H

A

B

c

462 SUPREME COURT REPORTS (1979] J S.C.R.

" by far the greater weight of correctional authority

is that greate.r procedural fairness in disciplinary proceedings,

including permitting confrontation and cross-examination,

would enhance rather than impair the disciplinary process

as

a rehabilitative, tool.

Time has proved . . . . that blind deference to correc-

tional

officials does no real service to them. Judicial

con­

cern with procedural regularity has a direct hearing

upon the maintenance

of institutional order; the orderly

care

with which decisions are made by the prison authority is

intimately related to the level of respect with which prisoners

regard that authority.

There

is nothing more corrosive to the fabric of a public

institution such

as a prison than a feeling among those whom

it contains that they are being treated unfairly,

As the Chief Justice noted. . .

"fair treatment. ... will

O e,nbanee the chance of rehabilitation by avoiding reactions to

arbitrariness."

Ji

G

H

.... We have recognized that an impartial decision­

maker is a fundamental requirement of due process in a

variety

of relevant situations, and I would hold this

require­

ment fully applicable here. But in my view there is no

constitutional impediment to a disciplinary board composed

of responsible prison officials like those on the· Adjustment

Committee here. While it might

well be desirable to

haYc

persons from outside the prison system sitting on disciplinary

panels,

so as to eliminate any possibility that subtle

institu­

tional pressures may effect the outcome of disciplinary cases

and to avoid any appearance

of unfairness, in my view

due

process is satisfied as long as no member of the disciplinacy

board has been involved in the investigation or pr~ecution

of the particular case, or has had any other form of persona I

involvement in the case."

Mr. Justice Douglas, in bis dissent, quoted from an earlier case :

"Certain principles have remained relatively immutable

in onr jnrisprudenee. One of these is that where govern­

mental action seriously injnres an individnal, and the reason­

ableness of the action depends on fact findings, the evidence

used to prove the Government's case must

be disclosed to

the individual so that he bas an opportunity

to show that it is

untrue. While this is important in the case of documentary

•

,

•

'

•

•

SUNIL BAWA v. DELHI ADMN. (Krishna Iyer, J.) 463

evidence, it is even more important where the evidence con­

sists of the testimony of individuals whose memory might

be faulty or who in fact, might be perjurers or persons moti­

vated by malice, vindictiveness, intolerance, prejudice, or

jealously.

We. have formalized these protections in the

requirements

of confrontation and cross-examination ....

This Court has been zealous to protect these rights from

erosion.

It has spoken out not only in criminal cases ....

but also in all types of cases where administrative and regu­

latory actions were under scrutiny. The decision

as to

whether an inmate should be allowed to confront his accu­

sers should

not be left to the unchecked and unreviewable

discretion of the prison disciplinary board. The argu;nent

offered for that result is that the danger of violent response

by the inmate against his accusers

is great, and that only the

prison administrators are in a position to

weigh, the necessity

of secrecy in each

case. But it is precisely this unchecked

power of prison administration which

is the problem that

due process safeguards are required to cure.

"Not only, the

principle of judicial review, but the whole scheme of

American government, reflects an institutionalized mistrust

of any such unchecked and unbalanced power over essential

liberties. That mistrust does not depend on an assumption

of inveterate venality or incompetence on the part of men

in power ....

"

Going the whole length of extending the right to cross-examina­

tion, the learned Judge took the view that fair procedure inside prisons

is part ot a successful rehabilitative programme, and observed :

"The goal is to reintegrate inmates into a society where

men are supposed to be treated fairly by the government, not

arbitrarily. The opposed procedure will he counter-produc-

tive. A report prepared for

the Joint Commission on Cor-

rectional Manpower and Training has pointed out that the "basic hurdle (to reintegration) in the concept of a prisoner

as a non-person and the jailor a's an absolute monarch. The

legal strategy to sunnount this hurdle

is to adopt rules ....

maximizing the prisoner's

freedom, dignity, and responsibi-

lity. More particularly, the Jaw must respond to the subs-

tantive and procedural claims that prisoners may have

....

"

A

B

c

D

E

F

G

The substance of these decisions is that

'a prisoner is not tempo- H

rarily a slave of the State and is entitled to the fair process of law

before condemnation to solitary confinement. The U.S. Judges

''

I,.::

464 SUPREME COURT REPORTS (1979] 1 S.C.R.

A generally have refused to accept arbitrary or capricious discipline in

jail administration.

B

c

D

E

F

G

H

"We would not lightly condone the absence of such

basic safeguards against arbitrariness as adequate notice, an

opportunity for the prisoner to reply to charges lodged

against

him, and a reasonable investigation into the

;ubstau­

tial discipline."(')

Another passage from Judge Fainberg in the same case deserves

our attention :

"In this Orwellian age, punishment that endangers sanity,

1W less than physical injury by the.strap, is prohibited by the

Constitution. Indeed, we have learned to

our. sorrow in the

rest few decades that true inhumanity seeks

to destroy the

psyche rather than merely the body.

The majority opinion

emphasizes that after all

Sostre could have obtained release

from isolation at

my time by agreeing to abide by the rules

and to cooperate. Perhaps that is

so, but that does not

change the case. . . . . . The possibility

of endless

solitary

confinement is still there, unless the prisoner 'gives in'. The

same observation could

be made if Sostre were tortured

until he so agreed, but no one would argue that torture is

therefore permitted.

The point is that the means used to

exact submission must

be constitutionally

acceptable, and

the threat

of virtually endless isolation that endangers sanity

.

is

11ot." (emphasis, added)

Quite a

few other decisions of this lesser

level courts of the United

States have been brought to our notice. by counsel in an endeavour to

validate or invalidate solitary confinement from a constitutional angle.

Unless driven to pronounce upon constitutionality we may not gq into

the question at

all. Even so, for a perspicacious understanding of the

facets of solitary confinement, its

soul or rather its soullessness, I may

refer to a few of the cited cases. The Court will stand four square

between a prisoner and the methodology of destroying completely lite

spirit and undermining the sanity of the prisoner in jail. This we do,

not because of anything like the Eighth Amendment but because un­

rea~onable restrictions and arbitrary deprivations are abnoxious to

Part III, especially Articles 14 and 19, even within the prison setting.

(I) Sottre v. Rockefeller, 312 F. Suppl. 863 (1970)

•

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•

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer,/.) 465

The facile submission, 'that the determination as to tne methods

of dealing

with such incorrigible persons is a matter of internal

man­

agement of State prisons and should be left to the discretion of prison

administrators .... ' is nntenable if, within the cell, fnndamental con­

cepts

of decency do not prevail and barbaric conditions and degrading

circumstances do violence to civilised standards

of

humane decency,

as the Court pointed out in Hancock v. Avery. The goals of prison

keeping, especially

if it is mere safe keeping, can be attained without

requiring a prisoner to live

in the exacerbated conditions of bare floor

solitude.

Functionally speaking, the court

has a distinctive duty to reform

prison

practices· and to inject constitutional consciousness into the

system :

"The challenge of prison reform is too compelling for

courts to decline to exercise their inherent power to protect

the constitutional rights of the .incarcerated. Affording such

protection demands that courts do more than merely inva­

lidate

specific practices; it demands that they confront the

institution of prison as a whole. The totality

of conditions

a

1oproach and the purposive model of analysis afford a

framework for this confrontation."(')

Moreover, prison officials may welcome judicial inter­

vention, because it enables them to initiate reforms that are

politically

and financially costly. Studies have demonstrat­

ed that one by-product to totality of conditions prison cases

is that they sensitized both the public and prison offi­

cials to the need for prison reform. As a result, progressive

A

B

c

D

prison authorities and humanitarian citizens' groups are able F

to take advantage

of this increased sensitivity to advocate

reform."

The Sobraj Case

I now switch to the averments in the petition by Sobraj. Chief

Justice Beg and his companion Judges including

me, it may be right G

to state here, did incidentally

see

Sobraj (the other petitioner),

standing

in. chains in the

yard, with iron on wrists, iron on ankles

iron

on waist and iron to link up, firmly rivetted at appropriate places,

all according to rules

!

The manacled numbers of the Tihar Jail community appear to

be n

alarmingly large and fluctuating, if we go by the averments in the

(I) Harward Civil Right -Civil Liberties Law Review (Vol. 12)

A

B

c

D

E

F

G

H

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466 SUPREME COURT REPORTS [1979] ! S.C.R.

affidavit of the petitione~ and the counter affidavit by the State. In

January, 1978 according to Sobraj, there were 207 under trial prison­

ers

witl1 bar fetters in Tihar Jail and all of them. exception

Sobriij,

were Indian citizens, all of them belonging to the 'C' class, whi.ch is a

poverty sign, and

many of them minors!

We are remind of what

Douglas, J. observed in

Hicks :

(')

"The wanderer, the pauper, the unemployed-all were

deemed to be potential criminals ......... .

"I do not see how economic or social statutes can be made

a crime

any more than being a drug

1'ddict can be."

Even the intervener, Citizens for Democracy, have, with pas·sion but

without partisanship, complained that 'over a hundred other prisoners

in Tihar Jail are subjected to these inhuman conditions' ! The State

has controverted the arithmatic but has not refuted the thrust of the

submission that a substantial number of undertrial prisoners has

suffered aching irons over their anatomy.

As against

207 the State

admits 'a total of 93 prisoners ........ 'in bar fetters'. There is no

dispute that all but the petitioner were of the 'C' class category, that is,

men whose socio-economi.c lot was weak. The Superintendent of tbe

Central Jail has a case that on January 20, 1978, 'the bar fetters of 41

prisoners were removed'. Likewise, on February 6, 1978, bar fetters

of 26 prisoners were removed. The trend of the counter-affidavit is

that this Superintendent has taken some ameliorative measures to nor­

malise conditions in the Jail. The discrepencies between the competing

statements

do not demolish the gravemen of the charge that the

"iron'

methodology of keeping discipline has had a somewhat dangerous

access into the prison Superintendent's mental kit.

If irons must rule

the jail community there

is jejune justice in our prison campuses. The

abolition

of irons altogether in some states without calamitous sequel as,

e.g. Kerala and Tamil Nadu,

is worth mention.

Now the

Sobraj facts. Sobraj has been in custody since July 6,

1976, having been arrested from Vikram Hotel, along with three cri­

minal companions of British, Australian and French extraction. His

Interpol dossier

is stated to be terrible and his exploits include jail

break and grave crime.

We merely mention this fact but decline to

be deflected by it because it

is disputed, although the jail officers

can­

not be faulted if they are influenced by such information. The Sobraj

story, since his arrest in July 1976, is one of continuous and indeter­

minate detention, partly under the Maintenance of Internal Security

Act and currently

as an undertrial facing serious charges, including

(l) 383 us 252 (1966)

,

-

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SUNIL BATRA v. DELIII ADMN. (Krishna Iyer,!.) 467

murder. The prisoner challenged the legality of arbitrary 'irons' in

the High Court but was greeted with laconic dismissal. The parsimo­

nious words, in which the order was couched, ran :

'This is a petition from jail. In view of the facts the

petition is not maintainable. It is dismissed in limine. The

petitioner informed of the order''.

Discomfited Sobraj has moved this Court.

The disturbing fact of years of pre-trial imprisonment apart, the

agonising aspect, highlighted by Dr. Ghatate for the petitioner and liy

Shri Tarkunde as intervener, is that until the Court sometime ago

directed

a little relaxation in the rigour of the 'iron' prescription, Sobraj (and how many submissive sufferers like him there are?) has

been continuously subjected to the torturesome 'bar fetters', through

twenty four hours daily and every day of the ioonth, 'religously' for

nearly two years, what with the kindly presumption of innocence juris­

prudentially playing upon him in tragic irony. Sobraj bitterly com­

plains of persistence in

bar fetters notwithstanding wounds on heels and

medical advice to the contrary. The

State defends bar fetters statu­

torily by section 56 of the Prisons Act and realistically

as preventive

medicine for 'dangerousness' pathology,

in exercise of the wise discre­

tion

of the Jail Superintendent, overseen by the revisory eye of the

Inspector General of Prisons and listened

to by Jail Visitors. The bar

fetter procedure, denounced by counsel

as

intolerable, is described by

the State as inconvenient but not inhumane, evil but inevitable, where

the customer

is one with dangerous disposition and attainments. It is

admitted that Sobraj has been in fetters to inhibit violence and escape.

The sorrows of Sobraj cannot

be appreciated nor his constitutional

claims evaluated without a fuller account of the bar fetter chapter of

his jail

life. Ever since July 6, 1976, he has been kept in bar fetters,

duly

welded, all these months without respite through the period of

preventive detention and after. We have it on the petitioner's word

that

no holiday was given to the bar fetter therapy, although the Resi­

dent Medical Officer has noted, in the history ticket

of the prisoner,

entries which are tell-tale.

"9-2-1977-multiple infected wounds on right ankles.

Bar fetters be removed from right leg for

15 days. Sd/-Dr. Mittal, R.M.O.

9-2-1977-Bar fetters removed from right leg for 15

days on medical advice.

Sd/-Mr. Mukhreja

A

B

c

D

E

F

G

Assistant Superintendent of Jails. H

A

B

c

D

468 SUPREME COURT REPORTS (1979] 1 S.C.R.

Sd/-Mr. Andhur

Dy. Superintendent of Jails.

12-2-1977-Bar fetters also to be removed from left foot.

Sd/-Dr. Bokra.

12-2-1977-Fetters be removed from left foot for two

\Veeks, on medical advice.

Sd/-Mr. Marwa,

Dy. Superintendent of Jails

(Respondent No. 3)

18-2-1977-He is desperate and dangerous prisoner; fvr

security reasons it is necessary to keep him in fetters. His

wounds may also be dressed.

(emphasis added)

Sd/-Mr. Marwa,

Dy. Superintendent of Jails

(Respondent No. 3)

The counter-affidavit of Shri Marwa, the then Superintendent, has

· taken up an extreme position about which I am sceptical. For ins­

tance, he has asserted that the Resident Medical Officer had examined

E the petitioner on 3rd September 1977, and found no wound on his

ankles. Significantly on September

4, 1977, this Superintendent has

recorded a note in his journal :

"I was informed by Shri S. S. Lal, A.S.,

that Charles Sobraj has inflicted injury on his ankles deliberately. I am

certain in my mind that he has done so as to be produced before

Hon'ble Supreme Court of India on 6-9-1977 in connection with his

F Writ Petition, wherein he has mentioned that his ankles are injured and

thus his bar fetters should be removed.

In an endeavour to make out that there was discrimination and

recklessness

in the imposition of bar fetters, the petitioner has set out

two circumstances.

G He has averred :

"It is significant to mention that the undertrial prisoners

in the following serious cases who were confined in Tihar

Jail were without any fetters

:-

(i) All undertrial

prisoners in Baroda Dynamite case

H who were also detained under MISA;

(ii) All the persons accused in the Hon'ble Chief Justice

of India ( Shri A. N. Ray's) attempt;

•

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer,!.) 469

(iii) All accused persons in Samastipur Bomb Blast case A

where the former Railway Minister, Shri L. N.

Mishra,

was killed; '

(iv) All accused persons

in Vidya Jain murder

case; and

(v) All accused persous in famous Bank Van Robbery B

case held at

New Delhi;

What may have relevance to the criticism of the bar fetters

techno-

logy running riot in Tihar Jail is another set of circumstances about

this

high security Jail which was commissioned after Independeuce

(1958).

The first is, that a large number of prisoners, a

few hundred at

times-minors and undertrials too-are shackled day and night for

days and months on end by bar

fetters-too shocking to contemplate

with cultural equanimity. And, this, prima facie, shows up the

cl'lss

character of jail injustice for an incisive sociologist. Practically all

these fettered creatures are the poor. Sobraj is the only B class pri­

soner subjects fetters, the others being C class people. A cynical but

to observer may comment necessarily violent

in Gandhian India but

that the better-off are

able to buy the class justice current in the 'caste

system' behind the bars-according to rule, of course. Anyone whose

socio-economic level is higher is a B class prisoner, undertrial oc cvn­

vict; everyone whose lot is below that line is a C class jailbird who is

often deprived of basic amenities and obliged to do hard labour if he

is a convict. Poverty cannot be degraded as 'dangerousness' except by

subversion of our egalitarian ethos. How come that all the under­

trial

who are under bar fetters are also from the penurious ?

This,

suspiciously, is 'soft' justice syndrome, towards the rich, not social

justice response towards the poor.

The petitioner has alleged additional facts to paint a para-violent

picture of the prison atmosphere and frightening profile of the jail

hierarchy. For instance, if I may excerpt the portious od' his affida-

c

D

E

F

~; G

'1n para 630 of the Punjab Jail Manual, which is of

1898, still the punishment of Whipping, para 628 and 629,

is valid and the Jail

Authocities used the said Whipping

Rule at their

own discretion, that is to say almost daily beating

the prisoners and some

time beating them up to Death as a H

case which happened in 1971 and went unpunished but for

some Jail Officials suspended for an

year."

A

B

c

D

E

F

G

H

470 SUPREME COURT REPORTS [1979J 1 S.C.R.

Some flegellations and killings are referred to by him which may be

skipped.

The lurid lines so drawn are blistering commentary on the

barbarity of prison regimen even

if a fraction of the imputations pos­

sesses veracity. A

fraction of the facts alleged, if true may warrant

the fear that a little Hitler lingers· around Tihar precincts.

The counter-version

on the factual and legal aspects of the

Sobraj

charges against the Prison Authorities has already been indicated.

Right at this stage, I may read S. 56, which is the law relied on to

shackle the limited freedom of movement of Sobraj :

'56. Whenever the Superintendent considers it neccssar)

(with referenc•;, either to the State of the prison of the char­

acter of the prisoners) for the safe custody of any prisoners

that they should be confined in irons, he may, subject

to

such rules and

instructions as may be laid down by the

Insp•octor General with the sanction of the Local Govern­

ment, so confine them.'

Before formulating the heads

of argument in the

Sobraj case it

is nec;,ssary to state that the respo'ndent, after a vain effort to secure

certain pre-Independence government proceedings of the Punjab, now

in Pakistani archives, admitted that it could not make good the vali­

dating existence of the local government's sanction for the instructions

of the Inspector General of Prisons, as required by S. 56 of the Act,

although such an instruction is found in the Jail Manual. Nothing

else, which compels judicial notice is available, and

so the rule is not

show'n to be valid. Sobraj's grv~vance is shocking shackling with bar

fetters. Iron

on wrists, iron on ankles, iron in between, welded

strong·

ly that an oppressive 6 lbs. weight hampers movement, hinders sfoep

and hurts all th~ time so much that life is poor purchase. And yet

he is in a stage of presumptive innocence and under judicial custody.

The basic fact that Sobraj is fettered during the Jail Superintendent's

sole discretion

is not

denv~d; and he has been enduring this distress

for a chronic couple of years with no hope of relief except the 1m­

likely cha:nge of heart of the head of the prison. The ddencc of the

State is that high-risk prisoners, even the under-trials, cannot be allow­

ed to bid for escape, and where circumstances justify, any result·

oriented measure, including fetters, is legally permissible. It is argued

that a prison

is not play-ground and hyper-sensitive reaction to irons

may

b~ functional folly, if we realise that custodial security has high

prison_ priority. Dangerous persons, if they are to be produced to·

answer justice, must suffer indefinite immobilisation, even if painfully

inconvenient, not punitively· imposed but preventively clamped down,

until the danger lasm.

•

·~

....

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.)

471

Rights and Realities

Sobraj, in chains, demands constitutional rights for man. For

there are several men like him in the same prison, undertrials, indi­

gents, even minors. The official journal allegedly registers the laco-

A

nic reason for the Jail Sup"ri"ntednent's fiat to impose bar fetter& and

these 'dangerous' reasons are recorded

in English in the history tickets B

of the

(Juostly) 'C' class 'un-English' victims. This voodoo is in com­

pliance with the formula of the rule aud fail visitors march past. The

Inspector-G~neral of prisons revises, if moved, and the spirit-crushing

artifice survives as a technique of jail discipline. Ordinarily, the cur-

tain falls, the groan or moan is hardly heard, the world falls to sleep,

the Constitution and the Court sublhnely uphold human rights but C

the cells WC'~P for justice unheard.

There

is a sad fascination to read Nehru on the Naini Prison

which

is but a portrait of any Indian prison of those times :

"For years and years many of these 'life.rs' do not see a

child or woman, or even animals. They lose touch with the

outside WQrld completely and have no human contacts left.

They brood and warp themselves in angry thoughts of fear

and revenge and hatred; forget the good of the world, the

kindness and

joy,_ and live only wrapped up in the' evil, till

gradually even hatred

lose5 its edge and life becomes a soul­

less thing, a machine like routine. Like automations they pass

their days each exactly like the other, and have

few sensations;

except one

feat! From time to time the prisoner's body is

weighed and measured. But how is one to weigh the mind

and

the_ spirit which wilt and stunt

themselveS and wither

away in this terrible atmosphere of oppression

? People

argue against the

death penalty, [Ind their arguments appeal

to

me greatly. But when I see the long drawn out agony, of

a life spent in prison, I feel that it is perhaps better to have

that penalty rather than to kill a person slowly

and by degrees.

One of the 'lifers' came up to me once and asked me. "What

of us lifers ? Will Swaraj take us out of this hell ?"

The great problems of law are the grave crises <:Jf life and both can

be solved not~by the literal instruction of printed enactments, but by the

interpretative sensitization

of the heart to 'the still, sad music of

humanity'.

D

E

F

G

The humane thread of jail

juri~rudence that runs right through is H

that no prison authority enjoys amnesty !o.r unconstitutionality, and

forced farewell to fundamental rights is an institutional outrage in onr

472 SUPREME COURT REPORTS [1979] l S.C.R.

A system where s.tone walls and iroJ!,bars shall bow before the rule of law.

Since life and liberty are at stake the gerontocracy of the Jail Manual

shall have to come to working terms with the paramountcy of funda­

mental rights.

A valuable footnote to this approach may be furnished by recalling

B how Mahatma Gandhi regarded jails

as 'social hospitals' and

Prime

Minister(') Shri Morarji Desai, while he was Home Minister of

Bombay way back in

1952, told the conference of Inspectors-General

of

Prisons :

c

D

E

F

G

"it is not enough to · consider a prisoner merely as a

prisoner

.... To my mind a

prisoner is not a matter of con­

tempt. Even the worst criminal, as you call him, is after all

a huil}an being as goaj or bad as any other outsider; what­

ever remedies you can

find out to treat prisoners, unless your

attitude changes, and

you consider that the prisoners inside

the jails are really

human beings equal in self-respect to your

self-respect, you

will never be affective in whatever you do,

because

you will affect them only in so far as you extract from

them the same respect for you and also good feeling for

you

and that cannot come unless you behave on equal terms with

them

......

"(')

A synthetic grasp of the claims of custodial security and prison

humanity

is essential to solve the dilemma posed by the Additional

Solicitor General.

If we are soft on security, escapes will escalate : so

be stern,

'red in tooth and claw' i's the submission. Security firstand

security last, .. is an argument with a familiar and fearful ring with

Dwyerli'st memories and recent happenings. To cry 'wolf' as a cover

for

official violence upon helpless prisoners is a cowardly act.

Chain­

ing all prisoners, amputating many, caging some, can all be fobbed off,

if every undertrial or convict were painted as a potentially dangerous

maniac. Assuming a

few are likely to escape, would you shoot a

hun­

dred prisoners or whip everyone every day or fetter all suspects to

prevent one jumping jail

? These wild apprehensions have no value

in our human order, if Articles 14,

19 and 21 are the prime actors

in the constitutional play. We just cannot accede to arguments intended

to stampede courts into vesting unlimited power in risky hands

with no

convincing mechanism for prompt, impartial check. A sober balance,

a realistic system, with monitoring of abuses and reverence for human

rights-that alone will fill the constitutional bill.

(I) Indian Correctional Journal, Vol. I, No. 2, July 1957 p, 6a.

(2) Indian Correctional Journal, Vol. I, No. 2, July 1957 pp. 2-5,

•

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, /.) 47 3

The grave danger of over-emphasizing order, discipline and security

within the prison, while interpreting S. 56, is that it lands itself unawares

to a pre-conceived, one sided meaning.

"The unconscious or half-conscious wresting of fact

and word and idea to suit a pre-conceived notion or the

doctrine or principle of one's preference is recognised by

Indian logicians as one of the most fruitful sources of fallacy;

and it is perhaps the one

which it is most difficult for even

the

most_ conscientious thinker to avoid. For

th' human

reason is incapable of always playing the detective upon itself

in this respect; it

is its very nature to seize upon some partial

conclusion, idea, principle, become its partisan and make it

the

key to all truth, and it has an infinite faculty of doubting

upon itself so as to avoid detecting in its operations this neces-

sary and cherished

weakness."(')

Judges must warn themselves against this possibility because the

nation's confidence in the exercise of discretionary power affecting life

and liberty has been rudely shaken especially when the Court trustingly

left it to the Executive. A prison Is a sound-proof planet, walled

from

view and visits regulated, and so, rights of prisoners are hardly

visible, checking

is

mo•e difficult and the official position of the re­

pository

of power inspires little credibility where the victims can be

political protesters, unpopular figures, minority champions or artless

folk

who might fail to propitiate arrogant power of minor minions.

The learned Additional

Solicitnr General commended for our con­

sideration the judicial strategy of softening draconian disablement

implied in S. 56 by a process of interpretation as against invalidation.

A

B

c

D

E

We agree, and proceed to consider whether the language of S. 56 lends F

itself to such leniency. The impngned provision runs thns :

"Whenever the Superintendent considers it ·necessary

(with refe.rence either to the state of the prison or the

character of the prisoners) for the safe custody of any pri­

soners that they should be confined in irons, he may, subject

to such rules and instructions as may be laid down by the

Inspector-General with the sanction of the Local Government,

so confine

them."

The relevant 'rules' may also be refe.rred to. A whole fascicnlus of

rules under the heading 'confinement in irons' deals with this subject.

The more relevant ones are Rules 423, 428, 432, 433 and 435. These

(I) Sri Aurobindo-Essays on the Gita, p. 37.

G

H

474 SUPREME COURT REPORTS (1979] I S.C.R.

A 'rules' merely provide for stacking irons, describe their details, specify

the category and conditions of prisoners who may be required to wear

irons, direct their medical examination, the removal of fetters and the

like.

B

c

Il

E

F

G

II

Besides, there arc provisions which specify situations where ordi­

narily prisoners are exempt from fetters, and fetters shall not, ordinarily

and without ·special reasons to be reco.rded by the Superintendent in his

Journal, be imposed on any

'unconvicted criminal p1isoner' (See R. 430). Sobraj is yet unconvicted. The other categories so exempted

need not detain us.

To avoid confusion it is not apt to state that

th"'>e

'rules and instructions' have no legal force as the source of power, S. 56.

desiderates for their validity the sanction of the 'Local Government'.

After

"strenuous efforts to trace such sanction, the

Addi. Solicitor

General failed to make good this condition precedent. The sanction

being absent, the instructions are no more than self-presented proce­

dure and cannot qualify for recognition under Art. 21.

In this

semc,

S. 56 stands unclad and must be constitutionally tested on its sweeping

phraseology of naked brevity.

Even ot11erwise, the rule's come into play only to the extent the Act

permits, since the stream c~nnot rise above the source. Therefore,

S. 56 demands close scrutiny. Confinement in irons is permitted for

the safe custody of prisoners. Therefore, the sine qua non is the

presence

of safety to the point of necessity compelling fetters. Safe

custody

is imperilled only where escape probability exists.

Such escape

becomes a clear and present danger only where the prisoner has hy

his precedents shown an imminent attempt to escape. Mere violence

by a prisoner or bad behaviour or other misconduct which has no re­

ference to ·safe custody has no relevance to S. 56. Supposing a prisoner

~ere short-tempered, vulgar or even homosexual, his safe custody

within the prison is not in jeopardy. His misbehaviour unrelated to

security

is the only issue then involved and correctional therapy

is the

prescription. S. 56 is not attracted so long as the "safe custody of that

prisoner

is not shaky. The focus is on his escape and, maybe.

nn

overt and covert attempts in that behalf. Other disorder or vice may

deserve disciplinary attention but S. 56 is not a nostrum for all admini'­

tmtive aches within jails.

The second requiniment of S. 56 is that the Superintendent mmt

consider it necessary to keep the prisoner in irons for the sake of safe

custody. The char.acter of the prisoner, not gene.rally, but with specific

reference to safe custody, must be studied by the Superintendent and

if

he reaches the conclusion re·sponsibly that there is necessity to confine

•

..

~-·

I

I

•

•

I

•

SUNIL BATJtA v. DELHI ADMN. (Krishna Iyer, J.) 4 75

the man in irons to prevent escape from custody, he may exercise his

pcwers under S. 56. To consider a step as necessary the autho.rity

must exercise intelligent care, bestow serious consideration and con­

clude that the action is not only desirable or advisable but necessary and

unavoidable. A lesser standard shows scant regard for the statutory

imperative.

S.56 empowers the Deputy Superintendent to put a prisoner in irons

only in situations of

urgent necessity followed by an immediate report

to the Superintendent. The point that emerges

is that only a finding

of absolute necessity can justify the exercise of the 'iron' power by

the Deputy Superintendent and the Superintendent must respect the

spirit of

S. 58 when he uses the power. This must be an objective

finding, and must, therefore, be based on tangible matters which

will

be sufficient to satisfy a man acting with a sense of humane justice.

properly instructed in the law and

a~sessing the prognosis carefully.

Random decisions, freak impressions, mounting suspicions, subjective

sadsfaction and well-grounded allergy

to a particular prisoner

m"a y be

insufficient.

We must remember that even though s. 56 is a pre-Cons­

titution measure its application must be governed by the imperative of

Articles 14, 19 and 21. Life and liberty

are precious values. Arbitrary

action which tortuously tears into the flesh of a living man is too serious

to be reconciled with Articles 14

or 19 or even by way of abundant

caution. Whatever is arbitrary in executive action

is pregnant with

discrimination

and violates Art. 14. Likewise, whatever decision is

the product of insufficient reflection or inadequate material or unable to

lead to the inference of a clear and present danger, is unreasonable

under Art. 19, especially when human freedom of helpless inmates

behind prison walls is the crucial issue. Article 21, as

we have ex­

plained while dealing with Batra case, must obey the prescriptions of

natural justice (see

Maneka Gandhi) as

IL-the quantum and quality

of natural justice even in an ellll'rgency). Reasonableness in this a<ea

also involves some review of the action of an executive officer so that

the prisoner who suffers may be satisfied that a higher official has with

detachment, satisfied himself about the necessity to better him. Such

administrative fairness is far more productive of order in prison than

the counter productive alternative of requiring every security su·spect

to wear iron. Prison disorder is the diyidend from such reckless 'dis­

cipline' and violent administrative culture, which myopic superinten­

dents miss.

B

c

D

E

F

G

This constitutional perspective receives ideological reinforcement

from the observation's of Mr. Justice Douglas in

Morrissey v. H

Brewer.(')

(1)

33 !.. Ed. 484, 505.

14-526SCI/78

A

B

c

D

47 6 SUPREME COURT REPORTS [1979] 1 S.C.R.

"The rule of law is important in the stability of society.

Arbitrary actions in the revocation of paroles can only im­

pede and impair the rehabilitative aspects of modern peno­

logy.

"Notice and opportunity for hearing appropriate to the

nature of the case", are the rudiments of due process which

restore faith that our society

is run for the many, not the few,

and that fair dealing rather than caprice will govern the

affairs of

men."

To judge whether Sobraj's fetters were legal, we must go further

into the period for which this cruel process was to persist. Even pri­

soners who are 'lifers' shall not

be retained in iron

for more than three

months except with the special sanction of the Inspector General (See

S. 57). The rules also take a horrifying view of the trauma of fetters.

The power to confine in iron can be constitutionalised only

if it is

hemmed in with severe restrictions. Woven around the discretionary

power there must be

protective web that balances ·security of the prison

and the integrity of the person.

It is true that a

discretion has been

vested by S. 56 in the Superintendent to require a prisoner to wear

fetters.

It is a narrow power in a situation of necessity. It has to be

exercised with extreme restraint. The

discretion has to be based on an

objective a·ssessment of facts and the facts themselves must have close

relevance to safe custody.

It is good to highlight the total assault on th€ human flesh, free movement and ·sense of dignity this, 'iron' com­

mand involves.

To sustain its validity in the

f~ce of Art. 19 emer­

gencies uncontrollable

by alternative procedures are the only situations

in which this drastic disablement can be prescribed. Secondly

proccss­

ual reasonableness cannot be burked by invoking panic-laden pleas,

rejected in

Charles Wolff by the

U.S. Supreme Court.

Such a power, except in cases of ex!reme urgency difficult to ima­

gine in a

grim prison setting where armed guards are obviously available

at instant notice and watch

towers vigila11tly observe (save in case of

sudden riot or mutiny extraordinarly), can be exercised only after giving

notice and hearing and in an unbiased manner. May be that the hearing

G

is summary,

m_ay be that the communication of the grounds is brief,

maybe that oral examination does not

always take place; even so

natural justice, in its essentials, must be adhered to for reason's we have

explained in

Gill and Maneka Gandhi.

I regard as essential that reasons must be assigned for such harsh

ii action as is contemplated and such reasons must be recorded in the

history ticket of the prisoner

as well as in the journal. Since the

reasons are intended to enable the petitioner to challenge,

if aggriev-

'

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer,!.) 477

·ed the record must be in the language of the petitioner or of the ,

Tegion, and not in English as is being done now.

There must be special reasons of an extraordinary or urgent

character

when fetters are fastened on an unconvicted

prisoner. Those

substantial reasons must be recorded and its copy furnished to the

prisoner. Rule 430 commands that this be done. Even otherwise,

the procedural panacea of giving

specific reasons (not routine chants)

has a wholesome restraining

effect. And the constitutional survival

of

S. 56 depends on the formula of reasonableness.

The spirit

and substance of rule 432 make it clear that the record

of the reasons is

imperntive and has a function. Rule 433, what­

ever the Superintendent's affidavit may say, clearly shows that the

wearing of fetters must be for the briefest periods and deserves fre­

quent scrutiny. Indeed, in our view, except in remotely extraordinary

situations, rational justification for bar fetters of an unconvicted

prisoner cannot

be found except on the confession that the Prison

Superintendent and his staff are incompetent to manage and

indiffer­

ent to reasonableness. We cannot be swept off our constitutional

feet by scary arguments of deadly prisoners and rioting gangs, especi-

ally when

we find

States in India which have abandoned the discip­

linary barbarity of bar fetters (Tamil Nadu, Kerala et. al).

A

B

c

D

The import of rule 435 is that even in cases where security

compels imposition of fetters this should

be only for the shortest pos-E

sible time. The fact that, even

as a punishment, iron's must be

restricted

in its use (see

S. 46(7)) argues for prophylactic irons being

for the shortest spell. At night, when the prisoner

is in a cell there

is no particular reason to apprehend or possibility of escape.

So

nocturnal hand-cuffs and chains are obnoxious and vindictive and

anathema

in law. F

The infraction of the prisoner's freedom

by bar fetters is too

·serious to be viewed lightly and the basic features of 'reasonableness'

must be built into the administrative process for constitutional sur­

vival. Objectivity is essential when the shackling is prima facie

shocking. Therefore, an outside agency, in the sense of an officer G

hi~_her than the Superintendent or external to the prison department,

must be _given the power to review the order for 'irons'. Rule 423

speaks of the Inspector General of Prisons having to be informed of

the circumstances necessitating fetters and belchains. Rule 426 has a

similar import.

It is

right to generalise that the substance of the 'rules'

and the insistence of the Section contain the command that the Inspector H

General of Prisons shall post haste, say within 48 hours at least. receive

a report of such an infliction and consider whether

it is just and neces-

A

B

c

D

E

478

SUPREME COURT REPORTS [1979] I S.C.R.

sary. He should also be ready to receive complaints by way of appeals

abont 'irons' from prisoner concerned. A right of appeal or revision

from the action of the Superintendent to the Inspector General of

Prisons and quick action by way of review are implicit in the provi­

sion.

If

there is delay, the negation of good faith, in the sense of

absence

of due care, is inevitable and the validity of the order is in

peril.

Another remedy also may be visualised

as feasible. The visitors

of jails include senior executive

officers of the Division, Sessions Judges

and District Magistrates (see rule 47). This

is ordinarily an All­

India pattern. The duties of official visitors include satisfying

them­

seleves that the provisions of the Prisons Act, rules, regulations, orders

and directions are duly observed. Undoubtedly, the proper adher­

ence to S. 56 and the related rules falls within the purview of 'rule'

49. 'Rule' 53 states that all visitors shall have the opportunity of

observing the state of jail, its management and every prisoner con­

fined therein. The visitors,

official and non-official, have power to

call for and inspect jail records. 'Rule'

53 and 53B are pregnant

prov1S1ons. We read humane amplitude into this group of 'mies' so

as to constitutionalise the statutory prescriptions. They spell out a

duty on the part

of the visitors and the Inspector General of

Prisons

to hear appeals or complaints from the prisoners regarding irons forc­

ed on them. The reasonableness of the restriction being the constitu~

tional badge, the only way we can sustain s. 56 of the Act is to imply

in the broad group of provisions external examinership, immediate re­

view and cutting short of the iron regime to the briefest spell.

A

few submissions linking up 'dangerousness' with bar fetters urged

F

by the Additional Solicitor General may now be considered.

The learned Additional Solicitor General urged that there

was

a

built"in guideline for the superintendent's discretion. Considerations

of safety, expressed

in paragraph 435 and

S. 56. remove the vice of

arbitrariness and unreasonableness. Reference

to paragraph 433 was

G made to make out that only dangerous prisoners were to be chained

in this manner.

We cannot lose sight of the fact that a non-convict

prisoner

is to be regarded differently and it may even be a misnomer

to treat such a remandee

as a prisoner. We see a distinction between

unconvicted prisoners and convicted prisoners being dealt with differ­

ently.

(See paragraph 392 of the Manual). Assuming the indiscri-

H minate provision in para 399 embracing dangerous prisoners 'whether

they are awaiting trial or have been convicted' to

be applicable, we

should deal with the two categories differently.

Para 399 (3) reads :

~·

I<..

•

.

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 479

"Special precautions should be taken for the safe cus­

tody of dangerous prisoners whether they are awaiting trial

or have been convicted. On being admitted to jail they 'should,

be (a) placed in charge of trustworthy warders, (b) con­

ftned in the most secure building available, ( c) as far as

practicable confined in different barracks or cells each night,

.(d) thoroughly searched at least twice daily and occasi.on­

:ally at uncertain hours (the Deputy Superintendent must

search them at least once daily and

he must satisfy

him-

self that they are properly searched by a trustworthy sub­

.ordinate at other time), ( e) fettered if necessary (the special

reasons

for having recourse to fetters should be

full,y record­

ed in the Superintendent's journal and noted in the prisoner's

history ticket). They should not be employed on any in­

dustry affording facilities for escape and should not

be entrusted

with implements that can be used as ·weapons. Warders on taking over charge of such

prisoners

must satisfy themselves that their fetters are intact and the iron bars or the gratings of the barracks in which they

·are confined are secure and all locks, bolts, etc. are in proper

-order. They should during their turns of duty frequently

satisfy themselves that all such prisone<s are in their palces,

should acquaint themselves with their appearance."

All these factors focus our attention on the concept of 'dangerous­

ness'

as controlling discretionary power and validate the Section.

The learned Additional Solicitor General

argued that the expression

'dangerous'

was neither vague nor irrational but vivid and precise, and regulated the discretion of the officer sufficiently to eliminate

the

vice of arbitrariness. He cited authorities to which we will

presently come but before examining them as validation of incapa­

citation

of risky prisoners we may as well refer to

SO!lle aspects of

the problem presented by ( 1) what kind of danger should lead to

incapacitation?

(2) what authority is to make the decision on

whether or not that danger

is present ? ( 3)

On what basis is that

authority to decide

who among offenders is dangerous and for how Jong?

Predictions of dangerousness are hazardous. In 1966 the Supreme

Court released 967 offenders held in New York psychiatric institu­

tions beyond the term

of their sentences because they were consider-

A

B

c

D

E

F

G

ed dangerous. (They had been confined without proper procedures). H

Researchers

who followed the subsequent careers of these persons for

four years found that only 2 percent were returned

to institutions for

A

B

c

D

E

F

G

H

480 SUPREME COURT REPORTS [ 1979] I S.C.R ..

the criminally insane; more than half were not readmitted to any

institution. However, the criteria by which these persons had been

declared dangerous in the first place are questionable, and they had

been held

an average of thirteen years beyond their sentences.

The prognosis depends on the peculiarities of the individual and

on interpretation by the individuals who study his

case-i.e. on the

idiosyncrasies of their (intuitive

?) judgment criteria.

All institutions that hold people against their wishes need

outside·

supervision, for, by definition, they lack the internal checks and bal­

ances that make such supervision unnecessary elsewhere. One can

check out of a hotel

if abused, but not out of a

prison. Prison staffs,

which, unlike hotel staffs, can also totally circumscribe the activities

of inmates-have extensive coercive power that must be checked by·

an outside authority if it is not to be abused. While sharing the

purposes of the penal system, the outside authority should be alto­

gether independent of the management of the institutions it

is to super­

vise and of its personnel. (The general supervisory power of the

judiciary

is too cumbersome and has not proven sufficient anywhere).

Such outside authorities exist abroad : In Great British a 'Board of

visitors' deals with violations of pris011 rules and deals with complaints

by prisoners.

In France a Judge de l' application des peines is

pre­

sumed to do so, and in Itlay a guidice di sorveglienza.

Kent S. Miller writes on the subject of dangerousness(') :

" .... a definitional problem needs to be dealt with. State

statutes have been notoriously vague in their references to

dangerousness, in large parts leaving the determination of

dangerousness to the whims

of the Court and of others

in­

volved in applying the concept."

Professionals concerned with predi.ction of violent behaviour had'.

differed in their judgments. Writes Miller :

"Considerable attention has been given to the role of

psychological tests in predicting dangerous behaviour, and

there is a wide range of opinion as to their

value."

"Thus far no structured or projective test scale has been

derived which, when used alone,

will predict violence in the

individual case in a satisfactory manner. Indeed, none has

been developed which

will adequately post diet let alone

pre diet, violent behaviour. However, our review of the

literature suggests that it might

be possible to

demonstrate·

. -.. ~!! __ viol~ce could be predicted using psychological tests if

l. Kent S. Miller : Managing Madness, pp. 58, 66, 67, 68.

r--

•

,..

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, !.) 481

programs of research were undertaken that were more A

sophisticated than the studies done to date."

"Courts and community agencies must muddle through

these difficulties and deal with such problems in the best way

they can. The fact that we have difficulty defining the pre-

dicting dangerous behaviour does not mean that members B

of the community can disregard such patterns of behaviour.

And the fact that psychiatrists do not agree on the nature

and scope

of mental illness does not imply that the law

can be oblivious to such matters .

. . . . But

we are on dangerous ground when deprivation

of liberty

occ·urs under such conditions. C

.... The practice has been to markedly overpredict.

In addition, the courts and mental health professionals in­

volved have systematically ignored statutory requirements

relating to dangerousness and mental illness ....

.... In balancing the interest of the state, against the

loss of liberty and rights of the idividual, a prediction of

dangerous behaviour must have a high level of probability,

a condition which currently does not exist), and the harm

to

be presented should be considerable.)"

If our law were to reflect a higher respect for life, restraint of the

person is justified only

if the potential harm is considerable. Miller's

conclusions are meaningful and relevant :

"If confinement takes place, there should be a short-term

mandatory review."

" .... the basis for police power commitment should be

physical violence or potential physical violence which is

imminent, constituting a 'clear and present' danger and based

on testimony related to actual conduct. Any such com­

mitment should be subject to mandatory review within two

weeks."

" .... Restraint shouW..b~ .. ti.m,er,lh1;1ite4,, with a. maximum

of five to seven days."

Tiie inference is inevitable that management of dangerousness in

the prispn setting is often overkill. and, upq~_rscientjfic. The irration­

ality

of. bar fetters based on subjective judgment by men without

psychiatric training and humane feeling

rna_kes every prisoner 'dan­

gerous'. Dr. Bhattacharya writes(') :

----I

(I) Dr. B. K. Bhattacharya : Pri<ons. p. 116.

D

E

G

ff

A

B

c

D

482 SUPREME COURT REPORTS [1979] l S.C.R.

"In the Delhi jail particularly in 1949 one came across

an astonishing sight of numerous under-trial prisoners in

fetters. merely on the ground that they had more than oee

case pending against them. This was noticed, though in a

far

less degree, in

Patiala and in Jaipur. Numerous trans­

portation prisoners were secured behind bars in cells, yet

they were put in bar-fetters, not to mention the escapes and

condemned prisoners.

In Delhi jail one gained an impres­

sion that bar-fetters were the rule of the

day."

The key jurisdictional preconditions are :

(i) absolute necessity for fetters;

(ii) special reasons

why no other alternative but fetters

will alone secure custodial assurance;

(iii) record of those reasons contemporaneously in extenso;

(iv) such record should not merely be

full but be docu-

mented

both in the journal of the Superintendent and

the history ticket of the prisoner. This latter

should

be in the language of the prisoner so that he may have

communication and recourse to redress.

(

v) the basic condition of dangerousness must be well-

E grounded and recorded;

(vi) all these are conditions precedent to 'irons' save in a

great emergency;

(vii) before preventive or punitive. irons (both are inflic­

tions of bodily pain) natural justice in its minimal

F form shall be complied with (both audi alteram and

the nemo

.iudex rules).

(viii) the fetters shall be removed at the earliest opportuni­

ty. That is to

say, even if some risk has to be taken it

shall be removed unless compulsive consideration•

G continue it for necessities of safety;

H

(ix) there shall tie a daily review of the absolute need for

the fetters, none being easily conceivable for noctur­

nal manacles;

( x) if it is

found

that the fetters must continue beyond a

day. it shall be held illegal unless an outside agency

like the District

Magistrate or Sessions Judge,

oo

materials placed, directs its continuance.

~·

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer,!.) 483

Although numerically large, these requirements are reasonably

practical and reconcile security with humanity. Arguments to the

contrary arc based on alarmist

a priori and may render

S. 56 ultra

vires. Having regard to the penumbra! zone, fraught with potential

for tension, tantrums and illicit violence and malpractice,

it is healthy

to organize a prison ombudsman

;'or each

State. Sex is an irrepres­

sible urge which is forced down by long prison terms and homosexu­

ality is of hidden prevalence in these dark campuses. Liberal paroles,

open jail's, frequency

of familial meetings, location of convicts in

jails nearest their homes tend to release

stross, relieve distress and

insure security better than flagellation and fetters,

The upshot of the discussion is that the shackles on Sobraj shall

be shaken

off right away and shall not be re-worn without strict

adherence to the injunctions spelt

ouL Active prison justice bids fare­

well to the bloodshot heritage of fierce torture of flesh and spirit, and

liabilitative processes reincarnate

as a healing hope for the tense, warped and morbid minds behind bars. This correctional orienta­

tion is a constitutional implication of social justice whose index finger

points

to Art 14 (anti-arbitrariness),

Art 19 (anti-reasonableness)

and Art 21 (sensitized processual humanism),

Prison reform is burgeoning in ti,e administrative thinking and,

hopefully one may leave it to legishtive ancl executiv~ effort lo .:on­

cretise, with feeling for 'insiders' and concern for societal protection,

with arcrnt on perimeter security and correctional strategy, lhe prnjcct

of prison reform.

Presumptive innocence blushes "hen ad libitum discretion 1s

vested in the jai!or to put preventi.ve fetters unfettered by the annoy­

ing rn!es of natural justice, The ·prisons become houses of horror if

hundreds of undertrials and even minors have to suffer, on grounds of

dangerousness, this disciplinary distress in one

jaiL That Prison

Superintendent surely needs his discretion to be disciplined, being

otherwise dangerous.

Since constitutionality focusses on rationality and

realistic reasonableness these forensic dissections

go to the heart of the

jssue.

I hold that bar fetters are a barbarity generally and, like whipping,

must vanish. Civilised consciousness

is hostile to torture within the

walled

campus, We hold that solitary confinement, cellular segrega-

A

B

c

D

E

F

G

tion and marginally modified editions of the same process are in­

human and irrational. More dangerous are these expedicn!> when

imposed by the untuned and untrained power of a jail superior who

H

has, as part of his professional equipment, no course in human

psy­

chology, stressology or physiology, who has to depend on no medical

A

B

c

D

F

484 SUPREME COURT REPORTS [1979} 1 S.C.R.

or psychiatric examination, prior to infliction of irons or solitary,.

who has no obligation to hear the victim before harming him, whose·

'reasons' are in English on the histcry-tickets and therefore unknow­

able and in the Journal to which the prisoner has no access. The·

revisory power of the Inspector General of Prison,; is illusory when

the prisoner does not know of his right to seek revision and the·

Inspector General has no duty to visit the solitary or 'fettered' crea­

tures or to examine every case of such infliction. .Tail visitors have·

no powers to cancel the superintendent's orders nN obligation to

hold enquiry save to pity and to make remarks. Periodical parades

of prisoners, when the visitors or dignitaries call for a turn-out, prove

a circus in a zoo

from a practical 'tandpoint or/and journal entries

and history-tickets a voodoo according

to rule, the key point to

be noted being that after this public exhibition within the prison,

the complaining prisoners are marked

men at the iron mercy of the

hierarchy, there being no active

!egaf aid project busy within the

prison. This ferocious rule of law, rule and nude, cannot be sustain­

ed as anything but arbitrary, unreasonable and procedurally heartless.

The peril to its life from the lethal stroke

of Articles 14, 19 and 21

read with 13 needs no far-fetched argument. The

abstrnse search for

curative guidelines

in such words as 'dangerous' and 'necessary'

for­

getting the totalitarian backdrop of stone walls and iron bars, is bid­

ding farewell to raw reality and embraeing verbal marga. The law is

not abracadabra but at once pragmatic and astute ~nd does not sur­

render its power before scary exaggerations of security by prison

bosses. Alternatives

to 'solitary' and 'irons' are available to prison

technology,

give the will, except where indifference, incompetence and

unimaginativeness hold prison authorities prisoner. Social justice

cannot

sleep if the Constitution hangs

limp where its consumers most

need its humanism.

Access and the Law

An allegedly unconscionable action of Government which dis­

ables men in detention from seeking judicial remedies against State·

G torture was brought to our notice. I would have left the matter as an

unhappy aberration

of govermnental functioning but the fundamental'

character of the imputation leaves

us no option but to drive home a

basic underpinning

of our government of laws. Democratic legality

stands stultified if the Corpus Juris

is not within the actual ken or

rea­

sonable reach· of the citizen; for it is a travesty of the rule of law if

11 legislation, primary or subordinate, is not available in published form,

or is beyond the purchase of the average affected Indian. To come to­

the point, we were told that the Punjab Jail Manual was not made·

-

-

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer,!.) 485

available to the prisoners and, indeed, was priced so high that few

could buy. The copy of the Manual handed over to us is seen to be

officially published in 1975 and priced at Rs. 260.30, although it con­

tains merely a collection of the bare text of certain statutes, rules and

instructions running into 469 printed pages.

If what was mentioned

at the Bar were true that the Manual as sold before at around Rs.

20/­

but a; suddenly marked up more than ten times the former price solely

to deter people from coming to know the prison laws, then the rule of

law were surely scandalized.

It was suggested that by this means the

indigent prisoner could be priced out of his precious liberties because

he could not challenge incarceratory injury without precise awareness

of

th~ relevant provisions of law beyond his means. Were this moti­

vation true the seriousness of the impropriety deepens. But

we have

not been taken into these vicious coils and keep out of that probe.

However, let

us be clear. Access to law is fundamental to freedom

in a government

of laws.

If the rule of law is basic to our constitu­

tional order, there

is a double imperative implied by it-on the citizen

to know and on the State to make known. Fundamental rights cease

to be viable

if laws calculated to canalise or constrict their sweep are

withheld from public access; and the freedoms under Article 19

(I)

cannot be restricted by hidden on 'low visibility' rules beyond dis­

covery by fair search. The restriction must be

reasonable under Article

19(2) to (6) and how can any normative prescription be reason­

able if access

to it is not available at a fair price or by rational search ?

Likewise, under Article 21, procedural fairness

is the badge of cons­

titutionality if life and liberty are to be leashed or extinguished;

and

how can it be fair to bind a man by normative processes collected

in

btioks too expensive to buy? The baffling proliferation and

frequent modification

of subordinate legisation and their intricacies

and inaccessibility are too disturbing to participative legality so vital

to democracy, to leave

us in constitutional quiet. Arcane law is as

bad as lawless

fiat, a caveat the administration will hopefully heed.

One of the paramount requirements of valid law is that it must be

within the cognizance of the community if a competent search for it were

made.

It is worthwhile recalling the observations of Bose J. made in

a different context but has a

phHosophic import :

"Natural justice requires that before a law can become

operative it must be promulgated

or published. It must be

broadcast in some recognizable way so that all men know what

it is; ...... The thought that a decision reached in the secret

recess

of a chamber to which the public have no access and

of which they can normally know nothing, can

nevertheles&

B

c

D

E

F'

G.

A

B

486 SUPREME COURT REPORTS [ 1979] I S.C.R.

affect their lives, liberty and property by the mere passing of '

a Resolution without anything more is abhorrent to civilized

men. It shocks conscience."(')

Legislative tyranny may be unconstitutional if the State by devious me­

thods like pricing legal publications monopolised by government too

high denies the equal protection of the laws and imposes unreasonable

restrictions on exercise of fundamental rights. The cult of the occult

is not the rule of law even as access to law is integral to our system.

The pregnant import of what I have said

will, I hope, be not lost on

the executive instrumentality of the State.

'r ·

--c Contemporary danger

D

E

G

H

We must have a sense of the prevalence of primitive cruelty haunt­

ing our prison cells and what is more alarming, of the increasing ver­

satility of prison torture in countries civilised and other. Our country

is no island and courts must be aware and beware. While I om far

from inclined to exaggerate possibilities of torture in the silent zone

called prison, we are not disposed to dismiss international trends col­

lected

in a recent article entitled

"Minds behind bars" (

2

):

"The technology of tonure all over the world is growing

ever more sophist'cated-new devices can destroy a prisoner's

wiU in a matter of hours-but leave no visible marks or signs

of brutality. And government-inflicted terror has evolved its

own dark sub-culture. All over the world, torturers seem to

feel a desire to appear respectable to their victims .... There

is an endlessly inventive list of new methods of inflicting pain

and suffering on fellow human beings that quickly cross con­

tinents and ideological barriers through some kind of interr1-

tional secret-police network. The 'wet submarine' means near­

suffocation of a prisoner by immersing him in water, or, fre­

quently, in urine; the 'dry submarine' is the same thing, except

that a plastic bag

is tied over the victim's head to deprive him

of oxygen. Another common technique, 'the telephone',

con­

sists of delivering sharp blows in both ears simultaneously,

which often causes excruciatingly painful rupture of the ear

drums. 'The helmet'

is put over the head

of a torture victim

to magnify his own screams.

In 'the hook' the victim is hoisted

off the ground by his hands, which are

t'e<l behind his back

in such a way that the stretching of the nerves often causes

(I) A.LR. 1951SC467.

(2) Lhtner, Dec. 1977 is.)ue.

'

..

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 48:7

paralysis of the arms. 'People on the hook' says one Urugu­

yan torture victim, 'cannot take a deep breath or hardly any

breath. They just moan; it's a dreadful, almost inhuman noise.'

And torturers all over the world use the language of grisly

disinformation to describe their work. In Uganda Amin's

secret police are known as the 'State Research Bureau', and

the main torture houses are called 'Public Safety Units'. In

Brazil, torturers call their sessions 'spiritual sessions' and

in

Chile, torturers refer to the Villa Grimaldi, their place of work,

as the Palacio de la Risa-the Palace of Laughter. In Iran, Otaq-e-Tamehiyat, 'the room where you make people walk',

meant the blood stained chamber where prisoner's were forced

to walk after torture to help their blood

to circulate .

. . . . What

is encouraging in all this dark picture is that we

feel that public opinion in several countries

is much more

aware of our general line than before. And that

is positive.

I think, in the long run, governments can't ignore that.

We

are also encouraged by the fact that, today, human rights are

discussed between governments-they are now on the inter­

national political agenda. But, in the end, what matters

is the

pain and suffer'ng the individual endures in police station or

cel1."

I imply nothing from the quote but it deepens our awareness in

approaching our task.

The

Conclusion

Now that the dilatory discussion overlapping at times, has come to

B

c

D

E

an end, I may concretise the conclusions in both the cases, lest diffu-F

~ sion should leave the decision vague or with ragged edges. They flow

from the elevating observations of Chandrachud, J. (as he then was)

in Bhuvan Mohan,(') amplified by humanity :

"We cannot do better than say that the directive principle

contained in Article 42 of the Constitution that 'The State shall G

make provision for securing just and humane conditions of

work' may benevolently be extended to living conditions in

jails. There are subtle forms of punishment to which con-

victs and undertrial prisoners are sometimes subjected but it

must be realised that these barbarous relics of a bygone era

offend against the letter and spirit of our Constitution."

ff

(l)Bhavao Mol>an PatnaU· v. Sttae of A.B [1975] (1) SCC'l85. 189,

A

c

D

E

G

11

488 SUPREME COURT REPORTS [1979] I S.C.R,

The correction and direction indicated by the Constitution have been

broadly spelt out by

me so that progressive prison reforms may move

towards 'fresh woods and pastures new'.

1. I uphold the vires of

Section 30 and Section 56 of the Prisons

Act, as humanistically read by interpretation. These and other pro­

visions, being somewhat out of tune with current penological values

and mindless

to human-rights moorings, will, I hope, be revised by

fresh legislation. It is a pity that

Prison Manua;ls are mostly callous

colonial compilations and even their copies are beyond prisoners' ken.

Punishments, in civilised societies, must not degrade human dignity or

wound

flesh and spirit. The cardinal sentencing goal is correctional;

changing the consciousness of the criminal to ensure social defence.

Where prison treatment abandons the reformatory purpose and prac­

tises dehumanizing techniques it

is wasteful, counter-productive and

irrational, hovering

on the hostile brink of unreasonableness (Art. 19).'

Nor can torture tactics jump the constitutional gauntlet by wearing a

'preventive' purpose. Naturally, inhumanity, masked

as secmity, is

outlawed beyond backdoor entry, because what is banned is brutality,

be its necessity punitive or prophylactic.

2. I hold that solitary confinement, even if mollified and modified

marginally, is not sanctioned by

Sec. 30 for prisoners 'under sentence

of death'. But it is legal under that Section to separate such senten­

cees from the rest of the prison community

du.ring hours when

prisoners are generally locked

in. I also uphold the special watch,

day and night, of such sentencees by guards. Infraction of privacy

may be inevitable, but guards must concede minimum human pri-

vacy in practice.

·

3. By necessary implication, prisoners 'under sentence of death'

shall not

be denied any of the community

amenities, including games,

newspapers, books, moving around and meeting prisoners and visitors,

subject to reasonable regulation of prison management. Be it noted

that Sec. 30 is no substitute for sentence of imprisonment and merely

prescribes the manner of organising safe jail custody authorised

by Sec.

366 of the Cr.

P.C. ·

4. More importantly, if the prisoner desires loneliness for reflec­

tion and remorse, for prayers and making peace with his maker, or op~

portunities for meeting family or friends, snch facilities shall be liberally

granted, having regard to the stressfull spell of terrestrial farewell his

soul may be passing through the compassion society owes to him whose

life it takes.

5. The crucial holding under Sec. 30(2) is that a person is not

'under sentence of death', even if the sessions court has sentenced him

-

-

SUN!L BATr.A v. DELHI AIJMN. (Krish1111 Iyer, J.) 489

~o death subject to confirmation by the High Court. He is not 'under

sentence of death' even

if the High Court imposes, by confirmation or

fresh

appellate infliction, death penalty, so long as an appeal .to the

Supreme Court

is likely to be or has been moved or is pending. Even

if th's Court has awarded capital sentence, Sec.

30 does not cover him

so long as

his petition for mercy to the Governor and/or to the

Presi­

dent permitted by the Constitution, Code and Prison Rules, has not

been disposed. Of course, once rejected by the Governor ancj the

President, and on further application there

is no stay of execution by

the authorities,

he is 'under sentence of death', even if he goes on mak­

ing further mercy petitions. During that interregnum he attracts the

custodial segregation specified in

Sec. 30(2), subject to the ameliorative

meaning assigned to the provision. To be 'under sentence of death'

means 'to be under a finally executable death sentence'.

6. I do not rule out further restraint on such a condemned prisoner

if clear and present danger of violence or likely violation of custody

A

B

c

is, for good reasons, made out, with due regard to the rules of fairplay

implied

in natural justice. Minimal hearing shall be accorded to the D

affected if he is subjected to further severity.

1. Sec. 56 must be tamed and trimmed by the rule of law and shall

not turn dangerous by making the Prison

1

brass' an itnperiunz in bnperio.

The Superintendent's power shall be pruned and his discretion bridled

fo the manner indicated.

2. Under-trials shall be deemed lo be in custody, but not under­

going

punitive imprisonment. So much so, they shall be accorded

more relaxed conditions than convicts.

3. Fetters, especially bar fetters, shall be shunned as violative of

human dignity, within and without prisons. The indiscriminate resort

to handcuffs when accnsed persons are taken

to and from court and

the expedient

of forcing irons on prison inmates are illegal and shall

be stopped forthwith save in a small category of cases dealt

with next

below. Reckless handcuffing and chaining in public degrades, puts to

shame finer

-sensibilities and is a slur on our culture.

4. Where an undertrial has a credible tendency for violence and

escape a humanely graduated degree of 'iron' restraint is permissible if

only

if-other disciplinary alternatives are unworkable. The burden

of proof of the ground

is on the custodian. And if he fails, he will be

liable in law.

5. The 'iron' regimen shall in no case go beyond the intervals, con­

ditions and maxima laid down for punitive 'irons'. They shall be for

short spells, light and never applied if sores exist.

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490 SUPREME COURT REPORTS [1979] ] S.C.R.

6. The discretion to impose 'irons' is subject to quasi-judicial over­

sight, even if purportedly imposed for reasons of security.

7. A previous hearing, minimal may be, shall be afforded to the

victims.

In exceptional cases, the hearing may be soon after. The

rule in

Gill's case and Maneka Gandhi's case gives the guidelines.

8. The grounds for 'fetters' shall be given to the victim. And when

the decision to fetter

is made, the reasons shall be recorded in the

jour­

nal and in the history ticket of the prisoner in the State language. If

he is a stranger to that language it shall be communicated to him, as

far

as possible, in his language. This applies to cases as much of

prlson

punishment as of 'safety' fetters.

9. Absent provision for independent review of preventive and puni­

tive action, for discipline or security, such action shall be invalid as

arbitrary and unfair and unreasonable. The prison officials

will then

be liable civilly and criminally for hurt to the person of the prisoner.

The

State will urgently set up or strengthen the necessary infra-struc­

ture and process

in this behalf-it already exists in embryo in the Act. 10. Legal aid shall be given to prisoners to seek justice from prison

authorities, and, if need be, to challenge the decision

in court-in cases

where they are too poor to secure on their

own. If lawyer's services

are not

given, the decisional process becomes unfair and unreasonable,

especially because the rule of law perishes for a disabled prisoner

if

counsel is unapproachable and beyond purchase. By and large,

priso­

ners are poor, Jacking legal literacy, under the trembling control of the

jai!or, at

his mercy as it were, and unable to meet relations or friends

to take legal action. Where a remedy

is all but dead the right lives

only

in print. Art. 39A is relevant in the context. Art. 19 will be

violated in such a case as the process will be unreasonable. Art. 21

will be infringed since the procedure is unfair and is arbitrary. In

Maneka Gandhi the rule has been stated beyond mistake.

11. No 'fetters' shall continue beyond day

time as nocturnal fetters

on Jocked-in detenus are ordinarily uncalled

for, viewed from

considera­

tions of safety.

12. The prolonged continuance of 'irons',

as a punitive or

preven­

tive step, shall be subject to previous approval by an external examiner

like a Chief Judicial Magistrate or Sessions Judge

who shall briefly hear

the victim and record reasons. They arc ex-officio visitors of most

central prisons.

13. The Inspector General of Prisons shall, with quick despatch

consider revision petitions

by fettered pr;soners and direct the

continu­

ance or discontinuation of the irons. In the absence of such prompt

SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.) 491

decision, the fetters shall be deemed to have been negatived and shall A

be removed.

Such meticulous clarification has become necessary only because

the prison practices have hardly inspired confidence and the subject

is

human rights. Because prison officials must be responsible for the

security of the prison and the safety of its population, they must have B

a wide discretion in

promulgating rules to govern the prison population

and in imposing disciplinary sanctions for their violation. But any

humanist-jurist

will be sceptic like the American Judges who iu William

King Jackson

v. D. E.

Bishop(') observed :

"(1) We are not convinced that any rule or regulation as

to the use of the strap, however seriously or sincerely con­

ceived and drawn, will successfully prevent abuse. The pre­

sent record discloses misinterpretation even of the newly

adopted

...

(2) Rules in this area are seen often to go unobserved ..

( 3) Regulations are

easily circumvented ....

( 4) Corporal punishment is easily subject to abuse in the

hands of the sadistic and the unscrupulous.

(

5) Where power to punish is granted to

~rsons in lowel"_

levels of administrative authority, there is an inherent and

natural difficulty in enforcing the limitations of that power."

We find many objectionable survivals in the Prison Manual like

whipping and allergy to 'Gandhi Cap'. Better classification for 'Eur<>­

peans' is still in the book ! I hope that Prison Reform will receive

prompt attention as the higher political echelons in the country know

the need and

we may not be called upon to pronounce on the inalien­

able minima of human rights that our

constitutional. order holds dear.

It is noteworthy that, as pointed out in Furman v. Georgia(') with re­

ference

to death sentence, by Justices Douglas and Marshall, the more

painful prison cruelties are often imposed on the

soci<>-economic weak

and the militant minorities. Our prisons, both in the matter of classi­

fication for treatment and in the matter of preventive or punitive

imposts, face the same criticism. To thoughtful sociologists it seems

evident that prison severities are visited mostly on agitators, dissen­

ters, protesters, proletarians and weaker sections. Moreover, puni­

tive 'vested interest' sometimes wears 'Qreventive' veils, when

challenged and

we cannot

wish away discretionary injustice by

(1) Federal Reporter, 2nd Series, Vol 404, p. 571.

(2) 33 L. Ed. 2d. 346.

15--526 SCI/78

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492 SUPREME COURT REPORTS [1~79] 1 S.C.R.

burying our heads in the sandi of incredible credulity. Collf!s must

be astute enough to end there 'crimes' against criminals by correc­

tional interpretation.

'Freedom behind bars' is part of our constitutional tryst and the

index of our collective consciousness. Th&t the flower of human divi­

nity never fades, is part of our cultural heritage. Bonded labour, cel­

lular solitary confinement, corporal punishments, status-based elitist

classification and the like deserve to

be sentenced to transportation from

prisons and humanising principles granted visa into prison campuses.

In short, transformation of consciousness is the surest 'security'

mea­

sure to antidote social entropy. That is the key to human develop­

ment-rights and responsibilities-within and without prisons.

Positive experiments in re-humanization-meditation, music, arts

of

self-expression, games, nseful work with wages, prison festivals,

sram­

dan and service-oriented activities, visits by and to families, even par­

ticipative prison projects and controlled community life, are among the

re-humanization strategies which need consideration. Social justice,

· in the prison context, has a functional versatility hardly explored.

The roots of our Constitution lie deep in the finer spiritual sources

of social justice, beyond the melting pot of bad politicking, feudal cru­

dities and sublimated sadism, sustaining itself by profound faith in Man­

and his latent divinity and the confidence that 'you can accomplish

by

kindness what you cannot do by

force'(') and so it is that tne Prisons

Act provisions and the Jail Manual itself must be revised to reflect this

deeper meaning in the behavioural norms, correctional attitudes and

humane orientation for the prison staff and prisoners alike. We can­

not become misanthropes and abandon values, scared by the off­

chance of some stray desperate character. Then amputation of

limbs of unruly suspects may be surer security measure and corporal

punishment may have a

field day atfer a long holiday.

The essence

of my opinion in both these cases is the infusion of the higher cons­

ciousness of the Constitution into the stones

of law which make the

prison houses.

The

winds of change must blow into our careers and self-expression

and self-respect and self-realization creatively substituted for the

de­

humanising remedies and 'wild life' techniques still current in the jail

armoury. A

few prison villains-they exist-shall not make martyrs

of the humane many; and even from these few, trust slowly begets

trust.

Sarvodaya and antyodaya have criminological dimensions which

our social justice awareness must apprehend and actualize. I justify

(I) Pubillu• Syrus

SUNIL BATRA v. DELHI ADMN. (Krishna Tyer, J.) 49 3

this observation by reference to tbe noble but inchoate experiment (or I

unnoticed epic) whereby Shri Jai Prakash Narain redcmptively brought

murderously dangerous dacoits of Chambal Valley into prison to turn

a responsible page in their life in and out of jail. The rehabilitative

follow-up Wai, perhaps, a flop.

In short, the technology of raising the level of awareness, not gene-B

rating hatred by repression,

shows the way to

making prison atmos­

phere safe and social defence secure. Criminology and consciousness

are partners in community protection.

The Final Directions

I hold that even though Sec. 30 is intra vires, Batra shall not be

kept under constant, guard in a cell, all by himself, unless he seeks

such an exclusive and lonely life.

If he loses all along the way right

to the summit court and the top

executiv~, then and only then, shall

he be kept apart from the other prisoners under the constant vigil of

an armed guard. Of course, if proven grounds warrant disciplinary

segregation, it

is permissible, given fair hearing

ar1J review.

The petitioner, Sobhraj, cannot be granted the relief of striking down

Section 56

or related prison rules but he succeeds, in substance,

with

regard to his grievance of bar fetters. Such fetters shall forthwith be

removed and he

will be allowed the freedom of undertrials inside the

jail, including locomotion-not if

he has already been convicted. In

the eventuality of display

of violence or escape attempts or creds evi­

dence bringing home such a potential adventure by him, he may be

kept under restraint. Irons shall not be forced on him unless the situa­

tion is one of emergency leaving no other option and

in any case that

torture shall not be applied without compliance with natural justice

and other limitations indicated in the judgment.

Prison Jaws, now in bad shape, need rehabilitation; prison staff,

soaked

in the Raj past, need reorientation; prison house and practices.

a hangover of the die-hard retributive ethos, reconstruction;

prisoners,

those noiseless, voiceless human heaps, cry for therapeutic techno­

logy; and prison justice, after long jurisprudential gestation, must now be

re-born through judicial midwifery, if need be. No longer can the

Constitution be curtained

off from the incarcerated community since

pervasive social justice is a fighting faith with Indian humanity. I,

hopefully, alert the nation and, for the nonce, leave follow-up action

to the Administration with the note that stone

walls and iron bars do

not ensure a people's progress and revolutiol!ary history teaches that

tense bastilles are brittle before human upsurges and many tenants of

iron cells are sensitive harbingers of Tomorrow-many a Socrates,

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494 SUPREME COURT REPORTS [1979] 1 S.C.R.

A Shri Aurobindo, Tilak, Thoreau, Bhagat Singh, Gandhi ! So it is that

there

is urgency for bridging the human gap between prison praxis

and prison justice; in one sense,

it is a battle of the tenses and in an

another, an imperative

of social justice.

B

If I may end with an answer to the question posed at the beginn-

ing, so long as constitutional guarantees are

no11-negotiable, human

rights, entrenched in the National Charter, shall not be held hostages

by Authority. Emergency, exigency, dangerousness, discipline, secu­

rity and autonomy are theoretically palatable expressions; but, in a

world where prison

houses are laboratories of torture or warehouses

c

where human commodities are sadistically kept and the spectrum of

inmates range from drift-wood juveniles to heroic dissenters,

courts­

and other constitutional instrumentalities-should not conrent to lllllke

jails jndgeproof to tearful injustice. Until current prison pathology

is cured and prison justice restored, stone walls and iron bars will not

solve the crime crisis confronting society today.

E

F

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. But when the issue

is grave and the nation,

now and again, groans because prisons breed horror and terror and

bruited reforms remain a teasing illusion and promise

of unreality,

brevity loses its Jure for me; and going it alone

to tell the country plain

truthS becomes unobviable. If Parliament and Government do not

heed to-day, the next day

comes. And, in an appeal to Human

To­

morrow, 'if none responds to your call, walk alone, walk alone !'

Judicial power is a humane trust-'to drive the blade a little forward

in your time, and to feel that somewhere among these milli£>ns you

have left a little justice or happiness or prosperity, a sense of man­

liness or moral dignity, a spring of patriotism, a dawn of intellectual

enlightenment or a stirring of duty where it did not exist

before'-

that is enough.

The petitions succeed in principle but in

view of the ad interim

orders which have been carried out and the

new meaning read into

G the relevant provisions of the Act the prayer to strike

down

·becomes

otiose. Batra and Sobraj have Jost the battle in part but won the

war in

full.

I agree that the petitions be dismissed.

DESAI, J.-These two petitions under Article 32 of the Constitu­

R tion by two internees confined in Tihar Central Jail chalJenge the

vires

of sections

30 and 56 of the Prisons Act. Sunil Batra, a con­

vict under sentence

of death chalJenges his solitary confinement sought

•

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SUNIL BATRA v. DELHI ADMN. (Desai, !.) 495

to be supported by the provisions of s. 30 of the Priso!!.S Act (fot

short the Act); Charles Sobhraj a French national and then an under

trial prisoner challenges the action

of the Superintendent of Jail putt­

ing

him into bar fetters for an unusually long period co=encing from

the date

of incarceration on 6th July 1976 till this Court intervented

by an

interim order on 24th Februa.ry 1978. Such a gruesome and

hair-raising picture

was pointed at some stage of hearing that Chief

Justice

M. H. Beg, V. R. Krishna Lyer, J and

P. S. Kailasam J who

were then seized of the petitions visited the Tihar Central Jail on

23rd January 1978. Their

notes of inspection form part of the re­

cord.

1here are certain broad submissions

co=on to both the petitions

and

they rnay first be dealt before turning to specific contentions

in each petition. It is no more open to debate that convicts are

not

wholly denuded of their fundamental rights. No iron curtain can be

drawn between the prisoner and the Constitution. Prisoners are

en­

titled to all constitutional rights unless their liberty has been consti­

tutionally curtailed (see

Procunier v.

Martinex).(') However, a prisi­

oner's liberty

is in the very nature of things circumscribed by the

very fact of his confinement. His interest in the

limited liberty left

to him is then all the more substantial. Conviction for crime does not

reduce the person into a

nonper"son whose rights are subject to the '?!.him of the prison administration and, therefore, the imposition of any

major punishment within the prison

system is

conditio,Dal upon the

observance of procedural safeguards (see Wolff v. McDonnell).(')

By the very fact of the incarceration prisoners are not in a position

to enjoy the full panoply of fundamental rights because

these very

rights are subject to restrictions imposed by the nature of the regime

to which they have been lawfully committed. In D. Bhuvan Mohan

Patnaik

&

Or&. v. State of Andhra Pradesh & Ors.(') one of us,

Chandrachud J ., observed : -

"Convicts are not, by me.re reason of the conviction,

denuded of all the fundamental

rights which they otherwise

possess. A compulsion under the authority of law, follow­

ing 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 or

the right

to

"practice" a profession. A man of profession

would thus stand stripped of his rjght to hold consultations

while serving out his sentence. But the Constitution guaran­

(1) 40 L. Ed. 2<l. 224 at 24'.

(<) 41 L. Ed. 2d. 935 a, 97).

i3l [1975} 2 SCR 24.

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496

SUPREME COURT REPORTS [1979] I S.C.R.

tees other freedoms like. the right to acquire, hold and dis­

pose of property for the exercise of which incarceration

can

be no impediment. Likewise, even a convict is entitled

to the precious right guaranteed by Article 21 of the Consti­

tution that he shall not be deprived

of his life or personal

liberty except according to procedure

establi~hed by law".

Undoubtedly, lawful incarceration brings about neccosary withdrawal

or limitation of

some of these fundamental rights, the

retraction be­

ing justified by the considerations underlying the penal system (see

Poll v. Procunier) (')

Consciously and deliberately we must focus our attention, while

examining the challenge, to one fundamental fact that we are required

to exnmine the validity of a pre-constitution statute in the context

of the modern reformist theory

of punishment, jail being treated

as a correctional institution. But the necessary concomitants of the

fact of incarceration, the security of the prison and safety of the

prisoner, are to be kept

in the forefront. Not that the court would

ever abdicate its constitutional responsibility to delineate and protect

the fundamental rights but it

must simultaneously put in balance the

twin objects underlying punitive or preventive incarceration. The

Court

need not adopt

:i "hands off" attitude as has been occasionally

done

by Federal Courts in the

United States 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. The Court has,

therefore, to strike a just balance between the dehumanising prison

atmosphere and the preservation

of

interµal order and discipline,

the maintenance of institutional security against escape, and the

rehabilitation of the prisoners. Section 30 of the Prisons Act ·reads

as under:-

"30. ( 1) Every prisoner under sentence of death shall,

immediately

on his arrival in the prison after sentence, be

searched

by, or by order of, the Jailer and all articles shall

be taken from him which the Jailer deems it dangerous or

G inexpedient to leave

in his possession.

(2) Every such prisoner shall be confined in a cell

apart from all other prisoners, and shall be placed by day

and

by night under the charge of a

guard".

The gravamen of the argument is that sub-section (2) of s. 30

H of the Act does not authorise the prison authorities in the garb of

securing a prisioner under sentence

of death, to confine him in a cell --rn4TL:Ed. 2d. 495 •t 501.

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SUNIL BATRA v. DELHI ADMN. (Desai, !.) 497

.apart from other prisoners by imposing solitary confinement upon A

him. It is alleged that since the date of his conviction by the Sessions

Judge awarding

him capital punishment, Batra is kept in

solitary

-confinement.

Mr. Chitale, who gave us competent a~sistance as an amicus curiae

for Batra, after drawing our attention to the development of psycho­

pathological syndrome in prisoners under solitary confinement for an

unlimited

period, urged that s.

30 of the Act does not empower the

prison authorities to place the prisoner in solitary confinement. It

was said that if s. 46(8) and (10) empower prison authorities to

impose separate or cellular co'nfinement as a punishment for jail

·offences, solitary confinement being more tormenting in effect, can­

not

be imposed on

the prisoner. more so because it is by itself a

punishment that can

be awarded under ss. 73 and 74 of the Indian Penal Code and that too by a Court. The jail authority cannot

arrogate to it>self the power to impose such a punishment under the

garb of

giving effect to sub-s. (2) of s.

30 .. In any event it was

contended that if sub-s. (2) of s. 30 of the Act is to be construed

to mean that it authorises prison authorities to impose solitary con­

finement it is violative of Articles 14, 19, 20 and 21 of the Consti­

tution.

It may be conceded that solitary

cohfinement has a degrading and

dehumanising

effect

on prisioners. Constant and unrelieved isola­

tion of a prisoner

is so unnatural that it may breed insanity.

Social

isolation represents the most destructive abnormal environment.

Results of

long solitary confinement are disastrous to the physical

.and mental health

of those

~ubjected to it. It is abolished in U.K.

-but it is still retained in U.S.A.

If sub-s. (2) of s. 30 enables the prison authority to impose

solitary confinement on a prisoner under sentence of death not as a

consequence of violation

of prison discipline but on the sole and -solitary ifound that the prisoner is a prisoner under sentence of

death,

the provision contained

in sub-s. (2) would offend article 20

in the first place as also articles 14 and 19. If by imposing solitary

confinement there

is total deprivation of comaraderie amongst

co­

prisoners, co-mingling and talking and being talked to, it would

offend article 21. The learned Additional Solicitor General while

not adopting any dogmatic position, urged that it is not the conten­

tion

of the respondents that snb-s. (2) empowers the authority to

impose solitary confinement, but it merely permits statutory segre­

gation for safety of the prisoner in prisoners'

oW)) interest and

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498 SUPREME COURT REPORTS [1979] 1 s.c.R.

A instead of striking down the provision we should adopt the course

of so reading down the section

as to denude it of its

ugly inhuman

features.

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It must atonce

be made clear that sulrs. (2) of s. 30 does not

empower the prison authority to impose solitary confinement, in the

sense in

which that word is understood in para

510 of Jail Manual,

upon a prisoner under sentence of death. Sections

73 and 74 of

the Indian

Penal Code leave no room for doubt that solitary cohfine­

ment is by itself a substantive punishment which can be imposed by

a Court of

law. It cannot be left to the whim and caprice of

prison authorities. The limit of solitary confinement that can be

imposed under Court's order

is strictly prescribed and that provides

internal evidence of its abnormal effect on the subject. Solitary

confinement as substantive punishment cannot in any case exceed

14 days at a time with intervals of not less duration than such periods

and further, it cannot

be imposed until the medical officer certifies

o'n the

history ticket that the prisoner is fit to undergo it. Every

prisoner

while undergoing solitary confinement has to be visited daily

by the medical

officer, and when such confinement is for a period

of three months it cannot exceed seven

days in any one mo'nth of

the

whole imprisonment awarded, with intervals between the

periods

of solitary confinement of not less duration than sue)! periods (see

s. 74, IPC). The Court can'not award more than three months'

solitary confinement even if the total term of imprisonment exceeds

one year (see

s. 73, IPC). This is internal evidence, if any is

necessary, showing the gruesome character of solitary confinement.

It is so revolting to the modem sociologist and law reformist that the

Law Commission

in its 42nd Report, page 78, recommended that

F the punishment of solitary confinement

is out of tune with modern

thinking

and should not find a place in the

Pe'nal Code as a punish­

ment

to be ordered by any criminal court. even though it may be

necessary

as a measure of jail discipline Sub-s. (2) of s. 30 does not

purport to provide a punishment for a breach of Jail discipline.

Prison offence~ are set out in s. 45. Section 46 confers power on

G the Superintendent to question any person

alleged to have committed

a jail

offence and punish him for such offence. The relevant

sub­

clauses for the present purpose are sub-clauses (8) and ( 10) which

read

as under :

JI

"46. The Superintendent may examine auy person

touching any such

offence, and determine thereupon, and

punish

suph offence by-

x x x x x x

--

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} :

SUNIL BATRA v. DELHI ADMN. (Desai, J.) 499

( 8) separate confinement for any period not exceeding .

three months;

Explanation-Separate confinement means such confine-

ment with

or without labour as s.ecludes a prisoner from

communication with, but not from sight of, other prisoners,

and allows him not less than

o'ne hour's exercise per diem

and to have his meals in association with one

or more other

prisoners;

(10) cellular confinement for any period not exceed­

ing fourteen days :

Provided that such restriction of diet shall in no case

be applied interval of not less duration than such period

must elapse before the prisoner is again sentenced

to

cellu­

lar or solitary confinement;

Explanation-Cellular confinement means such confine­

ment with or without labour as entirely secludes a prisoner

from communication with, but not from sight of, other

prisoners".

The explanation to sub-clause (8) makes it clear that he is not

. wholly segregated from other prisoners in that he

is not removed

from the sight of other prisoners and he is entitled to have his meals

in association with one or more other prisoners. Even such separate

confinement

cannot exceed three months. Cellular confuiement

secludes a prisoner from communication with other prisoners but

not from the sight

of other prisoners. However, para 84 7 of the

Punjab

Jail

Manual and the provisions which follow, which prescribe

detailed instructions as to how a condemned prisoner

is to be kept, if

literally

enforced, would keep such prisoner totally out of bounds,

i.e. beyond sight and sound. Neither separate confinement nor

cellular confinement would be

as tortuous or horrendus as

confine­

ment of a condemned prisoner. Sub-s. (2) of s. 30 merely provides

for confinement of a prisoner under sentence of death in a cell apart

from other prisoners and he

is to be placed by day and night under

the charge of a guard.

Such confinement can neither be cellular

confinement nor separate confinement

a'nd in any event it cannot be

solitary

confinement. In our opinion, sub-s. (2) of s. 30 does not

empower the jail authorities in the garb of confining a prisoner under

sentence of death, in a cell apart from all other prisoners,

to impose

solitary confinement on him. Even jail discipline inhibits solitary

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500 SUPREME COURT REPORTS (1979] 1 S.C.R.

confinement as a measure of jail punishment. It completely 'nega­

tives any snggestion that because a prisoner is under sentence of

death therefore, and by reason of that consideration alone, the jail

authorities can impose upon him additional

a'nd separate punishment

of solitary confinement. They have no power to add to the punish­

ment imposed by the Court which additional punishment could have

been imposed by the Court itself but has in fact been

'not so impos­

ed.

Upon a true construction, sub-s. (2) of s. 30 does not empower

a prison authority to impose solitary confinement upon a prisoner

under sentence of death.

If s.

30(2) does not empower the jail authority to keep a con­

demned prisoner in solitary confinement, the expression "such

prisoner shall be confined in a cell apart from all other prisoner,;''

will have to be given some rational meaning to effectuate the purpose

behind the provision

so as not to attract the vice of solitary confine­

ment.

We will presently point out the nature of detention in prison

since the time capital sentence is awarded to an accused and until

it is executed, simultaneously delineating the steps while enforcing the

impugned provision.

The next question

is : who is a prisoner under sentence of death

and how

is he to be dealt with when confined in prison before execu­

tion of sentence

? If solitary confinement or cellular or separate

confinement cannot be imposed for a period

beyo'nd three months

in any

case, would it be fair to impose confinement in terms of

s. 30(2) on a pril;oner under sentence of death right from the time

the Sessions Judge awards capital punishment till the se'ntence

is

finally

executed ? The sentence of death imposed by a Sessions

Judge cannot be executed unless it is confirmed by the High Court

(see s.366(1), Cr.P.C.). However, we are not left in any doubt

that the pril;on authorities treat such a convict as being governed by

s. 30(2) despite the mandate of the warrant under which he is de­

tained that the sentence shall not be executed till further orders are

received from the Court.

It is undoubtedly obligatory upon the

Sessions Judge while imposing the

sentence of death on a person to

commit him to jail custody under a warrant. Now, after the con­

victed person

is so committed to jail custody the

Sessions Judge

submits the case to the High Court

as required by s. 366, Cr.

P.C.

The High Court may either confirm the sentence or pass any other

sentence warranted

by law or may even acquit such a person. There­

after, upon a certificate granted by the High Court under Article

.........

\..

SUNIL BATRA v. DELHI ADMN. (Desai, J.) 501

134(c) of the Constitution or by special leave under Article 136, an

appeal can

be preferred to the

Supreme Court. Section 415, Cr. P. C .

. provides for postponement of execution of sentence of death in case

of appeal to Supreme Court either upon a certificate by the Hiih

Court or as a matter of right under Supreme Court (Enlargement of

Criminal Appellate Jurisdiction) Act, 1971, or by special leave

under Article 136. Further, under Articles 72 and

161 of the

Constitution, the President and the Governor in the case of sentence

-0f death has power to grant pardon, reprieve or remittance or com­

mutation of the sentence. No one

is unaware of the long time Jag

in protracted

litii,:ation in our system between the sentence of death

as imposed by the Sessions Court and the final rejection of an appli­

cation for mercy. Cases are not unknown where merely on account

of a long lapse of time the Courts have commuted the sentence of

death to o'ne of life imprisonment on the sole ground that the

prisoner

was for a long time hovering under the tormenting effect -0f the shadow of death. Could it then be said that under sub-s. (2)

of s. 30 such prisoner from the time the death sentence is awarded

by the Sessions Judge has to be confined in a cell apart from other

prisoners

? The prisoner in such separate, confinement would be under a trauma for unusually long time, and that could never be

the intention of the legislature while enacting the provision. Such

.special precautionary measures heaping untold misery on a condemn­

ed prisoner cannot spread OV''f a long period giving him no respite

to escape from the boredom by physical and mental contact with

other prisoners. What then must be the underlyini: meaning of the

.expression "a prisoner under sentence of death" in s. 30 so as to

reduce and considerably minimise the period during which the

prisoner suffers thi5 extreme or additional torture ?

The expression "prisoner under sentence of death" in the

context of sub-s. (2) of

s.

30 can only mean the prisoner whose

sentence of death has become

final, conclusive and

indefeasibk

which cannot be annulled or voided by any judicial or constitutional

procedure.

In other words, it

must be a sentence which the authori­

ty charged with the duty to execute and carry out must proceed to

carry out without intervention· from any outside authority. In a

slightly different context in State of Maharashtra v. Sindhi l!J

Raman('), it was said that the trial of an accused person . under

sentence of death does not conclude with the termination of the

proceedin&S in the Court of Sessions because of the reason that the

sentence of death passed by the Sessions Court is subject to confirma-

(l) [1973] 3 SCR 574.

A

B

c

D

E

F

G

H

502 SUPREME COURT REPORTS [1979] l S.C.R.

A tion by the Hiah Court. A trial cannot be deemed to have con­

cluded

till an

executable sentence is passed by a competent court.

In the context of

s.

303 of the Indian Penal Code it was said in

Shaik Abdul Azeez v. State of Karnataka, (') that an accused cannot

be under sentence of imprisonment for life at the time of commission

B

of the second murder unless he is actually undergoing such a

sentence or there is legally extant a judicially

final sentence which

he

is bound to serve without the requirement of a separate order

to

breathe life into the sentence which was otherwise dead on account

of remission under s. 401, Cr. P.C. Therefore, the prisoner can be·

said to be under the sentence of death only when the death sentence

c

is beyond judicial scrutiny a'nd would be operative without any

intervention from

any other authority. Till then the person who

i&

awarded capital punishment cannot be said be a prisoner under

sentence of death in the context of

s.

30, sub-s. (2). This interpre­

tative process would,

we hope, to a great

extent relieve the torment

D

and torture implicit in sub-s. (2) of s. 30, reducing the period of

such confinement to a short duration.

What then

is the nature of confinement of a prisoner who

is.

awarded capital sentence by the Sessions Judge and no other punish­

ment from the time of sentence till the sentence becomes automati­

cally executable? Section 366(2) of the Cr. P.C. enable the Court to

E commit the convicted person who

is awarded capital punishment to j~il custody under a warrant. It is implicit in the warrant that the

prisoner is neither awarded simple nor rigorous imprisonment. The·

purpose behind enacting su b-s. ( 2) of s. 3 66 is to make available

the pruoner when the sentence is required to be executed. He is to

F

G

D

be kept in jail custody. But this custody is something different from

custody of a convict suffering simple or rigorous imprisonment. He is

being kept in jail custody for making him available for execution of

the sentence as and when that situation arises. After the sentence

becomes executable he may be kept in a cell apart from other prison­

ers with a day and night watch. But even here, unless special cir-

cumstances exist, he must be within the sight and

soun.d of other

prisoners and

be able to take food in their company.

If the prisoner under sentence

of death is held in jail custody,

punitive

det~ntion cannot be imposed upon him by iail authorities

except for prison

offences. When a prisoner is committed under a

warrant for jail custody under

s. 366(2)

Cr.P.C. and if he is detain­

ed in solitary confinement which

is a punishment prescribed by s.

(I) [1977] 3 SCR 193.

--

-

SUNIL BATRA v. DELHI ADMN. (Desai, l.) 503

73, IPC, it will amount to imposing punishment for the same offence

more tlran once which would be violative of Article 20(2). But as

the prisoner is not to be kept in solitary confinement and the custody

in which he is to be kept under s. 30(2) as interpreted by us would

preclude detention in solitary confinement, there is no chance of

imposing second punishment upon him and therefore, 1. 30(2) is not

violative

of Article

20.

Article 21 guarantees protection of life and personal liberty.

Though couched in negative language it confers the fundamental right

to

life and personal liberty. To the extent, assuming

sub-s. (2) of

s. 30 permits solitary confinement, the limited personal liberty of

prisoner under sentence of death is rudely curtailed and the life in

solitary confinement

is even worse than in imprisonment for life. The

scope

of the words

"life and liberty" both o fwhich occur in Vth and

XIVth Amendments of the U.S. Constitution, which to some extent

are the precurser

of Article 21, have been vividly explained by

Field, J.

in Munn v. Illinois(') To quote:

"By the term "life" as here used something more is

meant than mere animal existence. The inhibition against its

deprivatimi extends to all these limits and faculties by

which life

is enjoyed. The provision equally prohibits the

mutilation of

the' body or 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

.... by the term liberty, as

med in the

provision something more

is

meant than mere freedom from

physical restraint or the bonds

of a

prison".

This statement of law was approved by a Constitution Bench of

this Court in Kharak Singh v. State of U.P.,(')as also in D. B. Pat­

naik (supra). Personal liberty as used in Article 21 has been held

to be a compendious term to include within itself all the varieties of

rights which go to make personal liberties of the man other than

those dealt with in clause ( d) of Article 19 (1). The burden to

iustify \!le curtailment thereof must squarely rest on the State.

There is no more controvers')' which ranged over a Jong period

about the

view expressed

in A. K. Gopalan v. State of Madras,(")

that certain articles of the Constitution exclusively deal with specific

matters and where the requirements of an article dealing with a parti­

cular matter in question are satisfied and there

is no infringement of (I) [1877] 94 US 113 at 142.

(2) [1964] I SCR 332 at 347.

(3) [1950] SCR 88.

A

B

c

D

E

F

G

H

A

B

c

n

E

F

G

ii

504

SUPREME COURT l.EPORTS [1979] 1 S.C.R.

the fundamental right guaranteed by the article, no recourse can be

had to fundamental right conferred by another article. This doctrine

of exclusivity

was seriously questioned in R. C.

Cooper v. Union of

India,(') and it was overruled by a majority of Judges of this Court,

Ray,

J. dissenting. In fact, in Maneka Gandhi v.

Union of India,(')

Bbagwati, J. observed as under :

"The law must, therefore, now be taken to be well settled

tliat article 21 does not exclude article 19 and that even

if there is a law prescribing a procedure for depriving a

person

of personal liberty and there is consequently no

in­

fringement of the fundamental right conferred by article

21, such

law, in

&Q far as it abridges or takes away any

fundamental right under article 19 would have to meet tile

challenge of that article. . . if a law depriving a person of

personal liberty and prescribing a procedure for that pur­

pose within the meaning of Article 21 has to stand the test

of one or more of the fundamental rights conferred under

article

19 which

niay be applicable in a given situation,

ex hypothesi it must also be liable to be tested with refer­

ence to article 14".

The challenge under article 21 must fail on our interpretation of

sub s.(2) of s. 30. Personal liberty of the person who is incarcerated

is to a great extent curtailed by punitive detention. It is even cur­

tailed in preventive detention. The liberty to move, mix, mingle,.

talk, share company with co-prisoners, if substantially curtailed,.

would be violative of article

21 unless the curtaihnent has the

back­

ing of law. Sub-s.(2) of s. 30 establishes the procedure by whicll

it can be curtailed but it must be read subject to our interpretation.

The word "law" in the expression "procedure established by law"·

in article 21 has been interpreted to mean in Maneka Gandhi's case

(supra) that the law must

be right, 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. If it is

arbitrary it would be violative of article 14.

Once 1. 30(2) is read

down in the manner in which we have done, its obnoxious element

is erased and it cannot be said that it is arbitrary or that there is de­

privation of personal liberty without the authority of law.

Incidentally it was also urged that the classification envisaged by

s. 30 of prisoner under sentence of death is irrational and it is not

based upon

any intelligible differentia which would distinguish

per­

sons of one class from others left out and the basis of differentiation:

(1) [1971] 1 SCR. 512,

(2) [197SJ 1 sec 2~s.

--

•

•

-

-

SUNIL BATRA v. DELHI ADMN. (Desai, J.) 505

has no nexus with the avowed policy and object of the Act. There

is no warrant for au implicit belief that every prisoner under sentence

of death is necessarily violent or d~ngerous which requires his segre­

gation. Experience

shows that they become

mrn;ose and docile and

are inclined to spend their last

few days on

eaith in communion

with their Creator.

It was. therefore, said

tliat to proceed on the

assumption that every prisoner under sentence of death

is

necessarily

of violent propensities and dangerous to the community of co-prisoners

is unwarranted and the classification on the basis of sentence

does not provide any intelligible differentia. The rationale underly­

ing the provision is that the very nature of the position and predica­

ment of prisoner under sentence of death as construed by us, lead to

a certain situation and present problems peculiar to such persons and

warrants their separate classification and treatment as a measure

of

jail administration and prison discipline. It can hardly be question­

ed

tliat orisoners under sentence of death form a separate class and

their separate classification has to be recognised.

In England a

prisoner under sentence of death is separately classified as would appeai from paia 1151, Vol. 30, Halsbury's Laws of England, 3rd

Edition. He

is searched on reception and every article removed

which the governor thinks it dangerous or inexpedient to leave with

him.

He is confined in a separate cell, kept apart from all other

prisoners and is not required to work. Visits are allowed by relatives,

friends and legal advisers whom the prisoner wishes to see etc.

It is

true that there

is no warrant for the inference that a prisoner under

· sentence of death is necessarily of violent propensities 9r dangerous

to co-prisoners. Approaching the ma®t from that angl_e we ll!ter­

preted sub-s. (2) of s. 30 to mean that he is not to be completely

segregated except in extreme cases of necessity which must be speci­

fically made out and that too after he in the true sense of the expres­

sion becomes a prisoner under sentence of death. Classification

according to sentence for the security purposes

is certainly valid and,

therefore,

S· 30(2) does not violate "!(icle 14. Similarly, in the

view which we have taken of the requirements of s. 30(2), the rest­

riction does not appear

to be unreasonable. It is imposed keeping

in view

the safety of the prisoner and the prison security and it is not

violative of article 19. The cballenge in either case must fail.

A

B

c

D

F

G;

• Charles Sobhraj, a foreigner, was arrested on 6th July 1976 and

...

on 15th July 1976 he was served with an order of detention under

s. 3 of the Maintenance of Security Act, 1971. His allegation is H

that ever since he was lodged in Tihar Central Jail he was pnt in

bar fetters and the fetters were retained continuously for 24 hours a

A

B

c

G

.506

SUPREME COURT REPORTS [1979] 1 S.C.R.

day and the nncontroverted fact is that since his detention he was

put in bar fetters till this Court made an order on 24th February

1978 recording an assurance on behalf of the respondents given by

the learned Additional Solicitor General that the bar fetters ~hall be

removed forthwith for a period of 14 days except when the prisoner

was taken from the prison to the Court and back and also when the

petitioner

was taken for the purpose of an interview but if the

interview is in the cell no such bar fetters shall

be put. By subse­

quent orders

this order dated 24th February 1978 was continued.

Thus, from July

197 6 to February 1978 the petitioner was kept in

bar fetters. In the affidavit

in reply on behalf of respondent no. 3,

the Superintendent of Tihar Central Jail dated 5th Sep1ember 1977,

gory details of the criminal activities of the petitioner are set out

simultaneously saying that the petitioner

is of extremely

desper<ite

l)nd dangerous nature whose pre~ce is needed by Interpol and,

therefore, it has been considered necessary to keep him nnder fetters

while in Jail. While examining the constitution~\ validity of s. 56

we have not allowed our vision to be coloured, based or abridged

by these averments as in our opinion for the main contention raised

by the petitioner they may not be relevant.

The petitioner contends that

s. 56 of the

Prisons Act so rar as it

confers unguided, nncanalised and arbitrary

powers on the Superinten­

dent to confine a prisoner in irons

is ultra vires articles 14 and 21,

the challenge nnder article

19 being not open to him. Section 56

reads

as nnder :

'

"56. Whenever the Superintendent considers it necessary

(with reference either to the state

of the prison or the

character

of the prisoners) for the safe custody of any pri­

soners that they should be confined

in irons, he may, sub­

ject to such rules and instructions

as may be laid down by

the Inspector General with the sanction

of the State Gov­

ernment so confine

them".

Sub-para (3) of para 399 of the Punjab Jail Manual provides

that special precautions should

be taken for the safe custody of

dangerous prisoners

which inter alia includes putting him nnder fet­

tei:s, if necessary. The safeguard that it provides is that if the Snp­

enntendent decides to put him in fetters he must record special

reasons

for putting fetters in the Journal and it mnst also be noted

in. the history ticket of the prisoner. Warders are nnder a duty to ll satisfy t~emselves that the fetters are intact. Para 435 provides that

fetters imposed for security shall be r§moved by the Superintendent

as soon as he is of opinion that this can be done with safety. Para

..

•

-

+

•

SUNIL BATRA v. DELHI ADMN. (Desai, J.) 507

69 iJJ, C,:h;tpt~ VI provides that the Superintendent shall discharge

bis dn\ies subject to the control qf, and all orders passed by him shall

be subject to revision by the Inspector General. ,