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PETITIONER:

SUNIL BATRA

Vs.

RESPONDENT:

DELHI ADMINISTRATION

DATE OF JUDGMENT20/12/1979

BENCH:

KRISHNAIYER, V.R.

BENCH:

KRISHNAIYER, V.R.

PATHAK, R.S.

REDDY, O. CHINNAPPA (J)

CITATION:

1980 AIR 1579 1980 SCR (2) 557

1980 SCC (3) 488

CITATOR INFO :

R 1981 SC 625 (7,8,11,12,14)

R 1981 SC 746 (3,4)

R 1981 SC1767 (11,13,21,23)

R 1982 SC 149 (16)

R 1982 SC 710 (108,109)

R 1986 SC 180 (39)

ACT:

Constitution of India 1950, Article 32-Tortune

inflicted on prisoner in jail-factum of forture brought to

notice of court-power and responsibility of court to

intervene and protect prisoner.

Prisons Act 1894, Ss 27, 29 and 61 & Punjab Prison

Manual, Paras 41, 47, 49 and 53-Solitary confinement, denial

of privileges, amenities to prisoners-to be imposed with

judicial appraisal of Sessions Judge-Prison Manual to be

ready reach of prisoners-visits to jails by visitors,

official and non-official-keeping of grievance boxes in

prisons and remedial action on grievances by Sessions

judges-Periodical reports to be forwarded to the High Court-

reforms suggested in prison management and procedure.

Legal Aid-provision of free legal aid to prisoners-

necessity of.

HEADNOTE:

The petitioner, a convict under death sentence, through

a letter to one of the Judges of this Court alleged that

torture was practised upon another prisoner by a jail

warder, to extract money from the victim through his

visiting relations. The letter was converted into a habeas

corpus proceeding. The Court issued notice to the State and

the concerned officials. It also appointed amicus curiae and

authorised them to visit the prison, meet the prisoner, see

relevant documents and interview necessary witnesses so as

to enable them to inform them selves about the surrounding

circumstances and the scenario of events.

The amicus curiae after visiting the jail and examining

witnesses reported that the prisoner sustained serious anal

injury because a rod was driven into that aperture to

inflict inhuman torture and that as the bleeding had not

stopped, he was removed to the jail hospital and later to

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the Irvin Hospital. It was also reported that the prisoner's

explanation for the anal rupture was an unfulfilled demand

of the warder for money, and that attempts were made by the

departmental officers to hush up the crime by overawing the

prisoner and the jail doctor and offering a story that the

injury was either due to a fall of self-inflication or due

to piles.

Allowing the writ petition.

^

HELD:(Per Krishna Iyer and Chinnappa Reddy, JJ.)

1. (a) Prem Chand the prisoner, has been tortured

illegally and the Superintendent cannot absolve himself from

responsibility even though he may not be directly a party.

Lack of vigilance is limited guilt. The primary guilt cannot

be fixed because a criminal case is pending or is in the

offing. The State shall take action against the

investigating police for collusive dilatoriness and

deviousness.[599 F]

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(b) The Superintendent is directed to ensure that no

corporal punishment or personal violence on Prem Chand shall

be inflicted. No irons shall be forced on the person in

vindictive spirit. [599 H]

(c) Lawyers nominated by the District Magistrate,

Sessions Judge, High Court or the Supreme Court will be

given all facilities for interviews, visits and confidential

communication with prisoners subject to discipline and

security considerations. The lawyers so designated shall be

bound to make periodical visits and record and report to the

concerned courts, results which have relevance to legal

grievances. [600 A-B]

(d) Within the next three months, Grievance Deposit

Boxes shall be maintained by or under the orders of the

District Magistrate and the Sessions Judge which will be

opened as frequently as is deemed fit and suitable action

taken on complaints made. Access to such boxes shall be

afforded to all prisoners. [600 C]

(e) District Magistrates and Sessions Judges shall,

personally or through surrogates, visit prisons in their

jurisdiction and afford effective opportunities for

ventilating legal grievances, shall make expeditious

enquiries there into and take suitable remedial action. In

appropriate cases reports shall be made to the High Court

for the latter to initiate, if found necessary, habeas

action. [600 D]

(f) No solitary or punitive cell, no hard labour or

dietary change as painful additive, no other punishment or

denial of privileges and amenities, no transfer to other

prisons with penal consequences, shall be imposed without

judicial appraisal of the Sessions Judge and where such

intimation, an account of emergency is difficult such

information shall be given within two days of the action.

[601 B-C]

2. In our era of human rights' consciousness the habeas

writ has functional plurality and the constitutional regard

for human decency and dignity is tested by this capability.

[563 E]

3. Protection of the prisoner within his rights is part

of the office of Article 32. [564 C]

4. It behoves the court to insist that, in the eye of

law, prisoners are persons not animals, and to punish the

deviant 'guardians' of the prison system where they go

berserk and defile the dignity of the human inmate. Prison

houses are part of Indian earth and the Indian Constitution

cannot be held at bay by jail officials 'dressed in a

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little, brief authority'. when Part III is invoked by a

convict. When a prisoner is traumatized, the Constitution

suffers a shock. [564 D-E]

5. The courts in America have, through the decisional

process, brought the rule of law into the prison system

pushing back, pro-tanto, the 'hands-off' doctrine. The

content of our constitutional liberties being no less, the

dynamics of habeas writs there developed help the judicial

process here. The full potential of Arts. 21, 19 & 14 after

Maneka Gandhi has been unfolded by this Court in Hoskot and

Batra. Today, human rights jurisprudence in India has a

constitutional status and sweep. [573 A, 574 D]

6. Rulings of this Court have highlighted the fact that

the framers of the Constitution have freed the powers under

Art. 32 from the rigid restraints of

559

the traditional English writs. Flexible directives, even

affirmative action moulded to grant relief, may

realistically be issued and fall within its fertile width.

[575 F]

Dwarkanath v. income Tax officer [1965] 3 SCR 536

referred to.

7. Where injustice, verging on inhumanity, emerges from

hacking human rights guaranteed in Part III and the victim

beseeches the Court to intervene and relieve, the Court will

be a functional futility as a constitutional instrumentality

if it does not go into action until the wrong is righted.

The Court is not a distant abstraction omnipotent in the

books but an activist institution which is the cynosure of

public hope. The court can issue writs to meet the new

challenges. [576 D]

8. Affirmed in unmistakables terms that the court has

jurisdiction under Art. 32 and so too under Art. 226, a

clear power and, therefore, a public duty to give relief to

sentence in prison setting. [576 F]

9. In Sunil Batra v. Delhi Administration (1978) 4 SCC

409 this Court rejected the 'hands-off' doctrine and ruled

that fundamental rights do not flee the person as he enters

the prison although they may suffer shrinkage necessitated

by incarceration. Our Constitutional culture has now

crystallised in favour of prison justice and judicial

jurisdiction. [576 H-577 A]

10. Where the rights of a prisoner, either under the

Constitution or under other law, are violated the writ power

of the court can and should run to his rescue. There is a

warrant for this vigil. The court process casts the convict

into the prison system and the deprivation of his freedom is

not a blind penitentiary affliction but a belighted

institutionalisation geared to a social good. The court has

a continuing responsibility to ensure that the

constitutional purpose of the deprivation is not defeated by

the prison administration. [577 E-F]

11. Whether inside prison or outside, a person shall

not be deprived of his guaranteed freedom save by methods

'right, just and fair'. [578 E]

12. A prisoner wears the armour of basic freedom even

behind bars and that on breach thereof by lawless officials

the law will respond to his distress signals through 'writ'

aid. The Indian human has a constant companion-the court

armed with the Constitution. [578 H]

Maneka Gandhi v. Union of India [1979] 1 SCC 248: N. H.

Hoskot v. Maharashtra, [1979] 1 SCR 192, referred to.

13. Implicit in the power to deprive the sentence of

his personal liberty, the Court has to ensure that no more

and no less than is warranted by the sentence happens. If

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the prisoner breaks down because of mental torture, psychic

pressure or physical infliction beyond the licit limits of

lawful imprisonment the Prison Administration shall be

liable for the excess. On the contrary, if an influential

convict is able to buy advantages and liberties to avoid or

water down the deprivation implied in the sentence the

Prison Establishment will be called to order for such

adulteration or dilution of court sentences by executive

palliation, if unwarranted by law. [579 B-C]

14. The court has power and responsibility to intervene

and protect the prisoner against mayhem, crude or subtle,

and may use habeas corpus for

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enforcing in-prison humanism and forbiddance of harsher

restraints and heavier severities than the sentence carries.

[579 E]

15. Law in the books and in the courts is of no help

unless it reaches the prisoner in understandable language

and available form. There is therefore need to get ready a

Prisoners' Handbook in the regional language and make them

freely available to the inmates. To know the law is the

first step to be free from fear of unlaw. [582 C]

16(i) The most important right of a prisoner is to

integrity of his physical person and mental personality. No

prisoner can be personally subjected to deprivations not

necessitated by the fact of incarceration and the sentence

of court. [584 D, 583 C]

(ii) Inflictions may take many protean forms, apart

from physical assaults. Pushing the prisoner into a solitary

cell, denial of a necessary amenity, and more dreadful

sometimes, transfer to a distant prison where visits or

society of friends or relatives may be snapped, allotment of

degrading labour, assignment to a desperate or tough gang

and the like, may be punitive in effect. Every such

affliction or abridgement is an infraction of liberty or

life in its wider sense and cannot be sustained unless Art.

21 is satisfied. There must be a corrective legal procedure,

fair and reasonable and effective. Such infraction will be

arbitrary under Article 14, if it is dependent on unguided

discretion, unreasonable under Art. 19 if it is irremediable

and unappealable and unfair under Art. 21 if it violates

natural justice. Some prisoners, for their own safety, may

desire segregation. In such cases, written consent and

immediate report to higher authority are the least, if abuse

is to be tabooed. [584 F-H, 586 G]

(iii) Visit to prisoners by family and friends are a

solace in insulation: and only a dehumanised system can

derive vicarious delight in depriving prison inmates of this

humane amenity. Subject, of course, to search and discipline

and other security criteria, the right to society of fellow-

men, parents and other family members cannot be denied in

the light of Art. 19 and its sweep., [586 H]

17. Prison power, absent judicial watch tower, may tend

towards torture. The judges are guardians of prisoners'

rights because they have a duty to secure the execution of

the sentences without excesses and to sustain the personal

liberties of prisoners without violence on or violation of

the inmates' personality. [588 D, 590 C]

18. In a democracy, a wrong to some one is a wrong to

every one and an unpunished criminal makes society

vicariously guilty. [596 D]

19. When offences are alleged to have taken place

within the prison, there should be no tinge or trace of

departmental collusion or league between the police and the

prison staff. [605 A]

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[Directives for which no specific time limit fixed

except the urgency of their implementation:

1(i) The State shall take early steps to prepare in

Hindi, a Prisoner's Handbook and circulate copies to bring

legal awareness home to the inmates. Periodical jail

bulletins stating how improvements and habilitative

programmes are brought into the prison may create a

fellowship which will ease tensions.

561

A prisoners' wall paper, which will freely ventilate

grievances will also reduce stress. All these are

implementary of s. 61 of the Prisons Act. [601 D,E]

(ii) The State shall take steps to keep up to the

Standard Minimum Rules for Treatment of Prisoners

recommended by the United Nations, especially those relating

to work and wages, treatment with dignity, community contact

and correctional strategies. [601 F]

(iii) The Prisons Act needs rehabilitation and the

Prison Manual total over- haul. A correctional-cum-

orientation course is necessitous for the prison staff

inculcating the constitutional values, therapeutic

approaches and tension-free management. [601 H]

(iv) The prisoners' rights shall be protected by the

court by its writ jurisdiction plus contempt power. To make

this jurisdiction viable, free legal services to the

prisoner programmes shall be promoted by professional

organisations recognised by the court such as for e.g. Free

Legal Aid (Supreme Court) Society. The District Bar shall,

we recommend, keep 2 cell for prisoner relief. [602 A]

(Per Pathak J. concurring)

1. The prisoner Prem Chand has been tortured while in

custody in the Tihar Jail. [605 D]

2. The Superintendent of the jail to ensure that no

punishment or personal violence is inflicted on Prem Chand

by reason of the complaint made in regard to the torture.

[605 F]

3. Pressing need for prison reform and provision for

adequate facilities to prisoners, to enable them not only to

be acquainted with their legal riots but also to record

their complaints and grievances and to have confidential

interviews periodically with lawyers nominated for the

purpose by the District Magistrate or the court having

jurisdiction. [605 G]

4. Imperative that District Magistrates and Sessions

Judges should visit the prisons in their jurisdiction and

afford effective opportunity to the prisoners for

ventilating their grievances and where the matter lies

within their powers, make expeditious enquiry and take

suitable remedial action. [605 H]

5. Sessions Judge should be informed by the jail

authorities of any punitive action taken against a prisoner

within two days of such action. [606 A]

6. A statement by the Sessions Judge in regard to his

visits, enquiries made and action then thereon shall be

submitted periodically to the High Court to acquaint it with

the conditions prevailing in the prisons within its

jurisdiction. [606 B]

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 1009 of 1979.

Under Article 32 of the Constitution.

Dr. Y. S. Chitale and Mukul Mudgal for the Petitioner.

Soli 1. Sorabjee, Solicitor General of India, and R. N.

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Sachthey for the Respondent.

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The Judgment of V. R. Krishna Iyer and O. Chinnappa

Reddy, JJ. was delivered by Krishna Iyer, J. R. S. Pathak,

J. gave a separate opinion.

KRISHNA IYER, J.-This, writ petition originated,

epistolary fashion in a letter by a prisoner, Batra, to a

Judge of this' Court (one of us), complaining of a brutal

assault by a Head Warder on another prisoner, Prem Chand.

Forms were forsaken since freedom was at stake and the

letter was posted on the Bench to be metamorphosed into a

habeas proceeding and was judicially navigated with electric

creativity, thanks to the humanist scholarship of Dr. Y. S.

Chitale as amicus Curiae and the erudite passion for

affirmative court action of Shri Soli Sorabjee, the learned

Solicitor General. Where the prison process is dehumanized,

forensic help, undeflected by the negative crudities of the

adversary system, makes us dare where we might have daunted.

The finest hour of justice comes when court and counsel

constructively collaborate to fashion a relief in the

individual case and fathom deeper to cure the institutional

pathology which breeds wrongs and defies rights. Here, the

individual is a prisoner whose anus was allegedly pierced

with a warder's baton and the institution is the Tihar

Prison, right in the capital of the country and under the

nose of the Home Ministry.

The Perspective

This case is revelatory of several sins in this central

penitentiary. 'Something is rotten in the State of Denmark

!' The constitutionaI imperative which informs our

perspective in this habeas corpus proceeding must first be

set out. The rule of law meets with its Waterloo when the

State's minions become law-breakers and so the court, as the

sentinel of the nation and the voice of the Constitution,

runs down the violators with its writ and secures compliance

with human rights even behind iron bars and by prison

warders. This case is at once a symptom, a symbol and a

signpost vis a vis human rights in prison situations. When

prison trauma prevails, prison justice must invigilate and

hence we broaden our 'habeas' jurisdiction. Jurisprudence

cannot slumber when the very campuses of punitive justice

witness torture.

The petitioner does not seek the release of the

prisoner because a life sentence keeps him in confinement.

But the dynamic role of judicial remedies, after Batra's

case, imparts to the habeas corpus writ a versatile vitality

and operational utility that makes the healing presence of

the law live up to its reputation as bastion of liberty even

within the secrecy of the hidden cell. Blackstone called it

'the

563

great and efficacious writ in all manner of illegal

confinement' and Lord Deman proclaimed in 1839 that it had

been 'for ages effectual to an extent never known in any

other country'. So long as Batra remains good law, judicial

policing of Bastille practices will broaden to embrace the

wider range of prison vices. Dr. Chitale drew our attention

to American legal literature disclosing the trend while Shri

Soli Sorabjee for the Union of India, cited Corwin. Corwin's

remarks on American constitutional law, referred to with

approval in Batra, has our assent:

Federal courts have intensified their oversight of

State penal facilities, reflecting a heightened concern

with the extent to which the ills that plague so-called

correctional institution overcrowding, understaffing

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unsanitary facilities, brutality, constant fear of

violence, lack of adequate medical and mental health

care, poor food service, intrusive correspondence

restrictions, inhumane isolation, segregation,

inadequate or non-existent rehabilitative and/or

educational programs, deficient recreational

opportunities-violate the Eighth Amendment ban on

"cruel and unusual punishments."

The essence of the matter is that in our era of human

rights consciousness the habeas writ has functional

plurality and the constitutional regard for human decency

and dignity is tested by this capability. We ideologically

accept the words of Will Durant(a). "It is time for all good

men to come to the aid of their party, whose name is

civilization." Likewise, we endorse, as part of our

constitutional thought, what the British Government's White

Paper, titled 'People in Prison', stated with telling

effect:

A society that believes in the worth of individual

beings can have the quality of its belief judges, at

least in part, by the quality of its prison and probate

services and of the resources made available to them.

The learned Solicitor General brought this key-note thought

to our notice in the matchless diction of Sir Winston

Churchill and briefly referred to in Batra in a speech

seventy years ago:

The mood and temper of the public in regard to the

treatment of crime and criminals is one of the most

unfailing tests of the civilisation of any country. A

calm dispassionate

564

recognition of the rights of the accused, and even of

the convicted criminal, against the State-a constant

heart searching by all charged with the duty of

punishment a desire and eagerness to rehabilitate in

the world of industry those who have paid their due in

the hard coinage of punishment: tireless efforts

towards the discovery of curative and regenerative

processes: unfailing faith that there is a treasure, if

you can only find it in the heart of every man. These

are the symbols, which, in the treatment of crime and

criminal, mark and measure the stored-up strength of a

nation, and are sign and proof of the living virtue in

it.

Truly, this is a perspective-setter and this is also the

import of the Preamble and Art 21 as we will presently see.

We are satisfied that protection of the prisoner within his

rights is part of the office of Art.

`Prisons are built with stones of law' and so it

behoves the court to insist that, in the eye of law,

prisoners are persons, not animals, and punish the deviant

'guardians' of the prison system where they go berserk and

defile the dignity of the human inmate. Prison houses are

part of Indian earth and the Indian Constitution cannot be

held at bay by jail officials 'dressed ill a little, brief

authority', when Part III is invoked by a convict. For when

a prisoner is traumatized, the Constitution suffers a shock.

And when the Court takes cognizance of such violence and

violation, it does, like the. Hound of Heaven, 'But with

unhurrying chase, And unperturbed pace, Deliberate speed,

and Majestic instancy' follow the official offender and

frown down the outlaw adventure.

The Facts

What are the facts which have triggered off this

judicial action ?

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The resume of facts, foul on its face, reveals the

legal issues raised, brings into focus the basics of

prisoner's rights and helps the court forge remedial

directives so as to harmonize the expending habeas

jurisprudence with dawning horizons of human rights and

enlightened measures of prison discipline. Batra, a convict

under death sentence lodged in the Tihar Central Jail, came

to know of a crime of torture practised upon another

prisoner, Prem Chand, allegedly by a jail warder, Maggar

Singh, as a means to extract money from the victim through

his visiting relations. Batra braved the consequences of

Jail indignation

565

and brought the incident to the ken of the Court, resulting

in these proceedings which, though not strictly traditional,

are clearly in the nature of habeas corpus writs and

therefore, within the wider sweep of Art. 32. The court

issued notice to the State and the concerned officials,

appointed Dr. Y. S. Chitale and Shri Mukul Mudgal as amicus,

authorised them to visit the prison, meet the prisoner and

see relevant documents and interview necessary witnesses so

as to enable them to inform themselves about the surrounding

circumstances and the cruel scenario of events. Counsel on

both sides have sensitized the issue of prison justice

admirably and catalysed the cause of jail reforms

effectively. The democratic hope of the procession is its

'people's orientation, not its lucrative potential nor its

intellectual intricacies. And service in the field of the

handicapped human sectors, like prisoners, is a social

justice contribution. The enthusiastic work done in the case

by the young lawyer, Shri Mudgal, assisting Dr. Chitale,

deserves our commendation, even as the unreserved support

rendered to the Court by Shri Sachthey is in the good

tradition of the Bar.

Back to the facts. One Central episode round which the

skein of further facts is wound is beyond doubt, viz. that

Prem Chand, the prisoner, sustained serious anal injury on

or about August 26, 1979, because a rod was driven into that

sore aperture to inflict inhuman torture. The

contemporaneous entry in the Jail Hospital register reads:

One prisoner Prem Chand s/o Pyara Lal has developed

tear of anus due to forced insertion of stick by

someone,. He require surgical repair and his bleeding

has not stopped. He is to go to Irwin Hospital casualty

immediately.

Remarks of Superintendent. Noted 27 August, 79 sd D.S.

1.2.35 p.m.

Sd/-

(DR. KAPOOR)

2.00 p.m.

The prisoner's later narration to the doctor in the Irwin

Hospital corroborates the case. The unsuccessful and

unworthy attempts, presumably by overawing the prisoner and

even the doctor, and other dubious devices. which we do not

now scan, to do away with this G. primary incriminating

factor by offering incredible alternatives like rupture of

the anus by a fall or self-infliction or due to piles and

sillier stories, only show how the subtle torture of the

officials could extract falsehoods from the victim and even

medical officers, exclupatory of the, official criminal

whoever he be. There are some traces of attempts to hush up

tho crime where the higher officers have not been that

innocent. We are taken aback that the tardy police

investigation,

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with its lethargic pace and collusive ways, has hardly done

credit to the Police Department's integrity, a fact that the

Government will take note of, without institutional

sheltering of police delinquents. Imagine a police

investigator, hunting for contradictions obviously to

absolve the head warder by interrogating Dr. Kapoor who had

made an entry in the hospital register and told Dr. Chitale

that the prisoner had an anal rupture which could not be

self-inflicted or caused by a fall and was so serious as to

require immediate removal to Irwin Hospital, and making him

say, long afterwards on 2-10-1979 by delaying the laying of

the chargesheet thus:

"A prisoner named Prem Chand s/o Prehlad was

produced before me for treatment on the afternoon of

Sunday 26th August, 1979. He was brought by some

warder.

He was complaining of bleeding from boils on the

buttocks. This was also told by the warder who brought

him.

He was given the required treatment as he was kept

under observation on his request.

Next day during the ward rounds when I examined

him, he was having tears of anus and bleeding. On

inquiring he told that this has happened due to forced

insertion of as stick into his anus.

Then he was referred to Irwin Hospital for further

treatment.

V. K Kapoor 2-10-79"

Can human nature be such rubber ?

More than the probity of the investigation and the veracity

of the doctor are at stake-hope in human integrity without

which human dignity will be the first casualty.

These observations are not impressionistic but we leave

it at that since our primary purpose is to protect the

person of the prisoner, not to prosecute the offender. We do

nat wish to prejudice that process. Regrettably, the

'hearsay' affidavit of the Under Secretary (Home), Delhi

Administration, Shri Nathu Ram, blinks at the jail vices and

merely dresses up the official version without so much as an

inquisitorial audit of the lurid happenings in a premier

correctional institution of the nation. We deplore the

indifferent affiants omnibus approval of every official

conduct, whereas we should, instead have expected

Government, which sincerely swears by human rights and whose

political echelons in succession, over the decades, are not

strangers to the actualities in these detention campuses to

have put

567

aside the tendency to white-wash every action with an

official flavour. A Where human rights are at stake prestige

has no place.

After the prisoner was subjected to brutal hurt he was

removed to the jail hospital and later to the Irwin Hospital

but on his re-transfer he was neglected; but we do not

pursue the identity of the culprit or the crime or the

treatment since a police investigation is under way.

Nevertheless, we cannot but remark that whatever damage

might have been done upto now, .. second investigation by a

C.B.I. Officer is justified, if truth has been suppressed.

Dr. Chitale pointed out certain poignant facts such as the

prisoner himself having been pressured into statements

contrary to the case of anal infliction. We do not make

comments on them although we are unhappy at the way the

business of investigation has been done. Indeed, the

potential for oblique mutual help between the police and the

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prison staff makes Jail offences by jail officials

undetectable; and so, to obviate this possibility, the

C.B.I. may well be entrusted, as a regular practice, with

such cases The prisoner being a person, we cannot write him

off.

The alleged offender, Warder Maggar Singh, may be left

aside for a while. There are other aspects of the torture

which demand deeper probe and panacea. The prisoner's

explanation for the anal rupture is stated to be an

unfulfilled demand for money, allegedly a general practice.

this shows, if true, that bribery, at the point of

barbarity, is a flourishing trade within the house of

punishment itself. How stern should the sentence be for such

official criminals and how diligent should the State be to

stamp out this wicked temptation ! If you want to end prison

delinquencies you must abolish the motivations and

opportunities.

The counter-case, if we may so call it, of the Warder

as disclosed in the Superintendents report, is equally

disturbing, if true:

On 25-8-79 evening life prisoner Prem Chand S/o

Sh. Prahlad was produced before the Deputy

Superintendent for talking Mandrix tablets. As he was

in state of intoxication because of taking Mandrix

tablets which he admitted before the Deputy

Superintendent, he was kept in a cell pending orders of

the Superintendent. Central Jail. He was taken to the

jail hospital the next day i.e. On 26-8-79 on a report

from the above said prisoner as he had pain in his anus

and was bleeding. The prisoner remained admitted into

the jail hospital upto 27-8-79, 2 p.m. when the Dr. V.

K. Kapoor, Medical officer, recommended for the

shifting of this prisoner to the Irwin Hospital with

the report mentioned in the petition.

568

The prisoner Prem Chand was shifted accordingly by Shri

Bachan Singh, Assistant Superintendent on duty on 27-8-

79. The undersigned was informed that a case u/s 385

IPC had been registered against warder Maggar Singh in-

charge of the ward No. 11 i.e. 40 cells with the police

station Janak puri and investigation had started in

this case. The result of the investigation is still

awaited. The prisoner was, however, received back in

the jail on 29-8-79 on being discharged from the Irwin

Hospital.

The prisoner, Prem Chand, was kept in a 'punishment

cell' which, according to counsel for the Administration,

was not as bad as a solitary cell, although Dr. Chitale says

that this was similar to the type of insulated confinement

condemned as unconstitutional be this Court in Sunil Batra's

case (supra). Coming to the competing version put for ward

by the prison officials through the counter-affidavit of the

Under Secretary, the story, even if true, is strongly

suggestive of a mafia-culture prevasive in the Tihar prison.

A background of the ethos of the campus may be gleaned from

portions of the report of the Superintendent, Central Jail,

Tihar, made by him with reference to the alleged torture

which is the subject matter of this case.

A number of prisoners in the Tihar Jail are

habitual offenders, professional criminals who have

been inmates of the jail from time to time. A number of

the said prisoners are rarely visited by their

relatives due to the fact that they do not want to

associate with such persons. It has been seen that such

prisoners are mainly visited by other professionals or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 37

habitual offenders in the field with whom they have had

former associations.... It has been noticed these types

of prisoners have been able to develop a certain report

with some of the lower staff in the jail namely Head

Warders, Warders etc. and obtain certain facilities

illegally including smuggling of numbers of items, i.e.

drugs etc. for their use. It may also be submitted that

to check smuggling of narcotic drugs against prisoners

who indulge in such activities 30 cases of narcotic

offences were get registered against the prisoners with

the Janakpuri Police Station during this year.... That

95 prisoners were transferred from the jail to Haryana

due to administrative reasons which include

indiscipline and violation of jail regulations by them

and otherwise derogatory behaviour during the last

year. This year also about 22 case have been

recommended by Superintendent, Jail for transfer ....

In para 568(b) and the note thereunder of the

569

Jail Manual, the habituals are required to be kept

separate from the casual prisoners but due to non-

availability, of any other jail in Delhi they are being

kept in Tihar Jail, which requires a lot or vigilance

on the part of the jail officers. (b) It may also be

mentioned that due to paucity of accommodation, the

said jail is occupied by double the number of prisoners

than it is otherwise authorised.

To aggravate the malady, we have the fact that a

substantial number of the prisoners are under-trials who

have to face their case in court and are presumably innocent

until convicted. By being sent to Tihar Jail they are, by

contamination, made criminals-a custodial perversity which

violates the test of reasonableness in Art. 19 and of

fairness in Art. 21. How cruel would it be if one went to a

hospital for a checkup and by being kept along with

contagious cases came home with a new disease ! We sound the

tocsin that prison reform is not a constitutional compulsion

and its neglect may lead to drastic court action.

It would appear that around 300 persons are taken in

and out daily between the prison and the courts. And when

there arc political agitations. and consequent police

arrests and remand to custody, the under-trial strength

swells in numbers. Since many officers busy themselves with

production of prisoners in court, the case of the

Superintendent is that the other prisoners "try to do

mischief, make thefts of other prisoners who go on work,

smuggle things and even resort to assaults."

To sum up, the Tihar prison is an arena of tension

,trauma, tantrums and crimes of violence, vulgarity and

corruption. And to cap it all, there occurs the

contamination of pre-trial accused with habituals and

"injurious prisoners of international gang." The crowning

piece is that the jail officials themselves are allegedly in

league with the criminals in the cells. That is, there is a

large network of criminals, officials and non-officials in

the house of correction ! Drug racket, alcoholism,

smuggling, violence, theft, unconstitutional punishment by

way of solitary cellular life and transfers to other jails

are not uncommon. The Administration, if it does not

immediately have the horrendous situation examined by an

impartial, authoritative body, and sanitize the campus,

complacent affidavits of Under Secretaries and glittering

entries from dignitaries on their casual visits, cannot

help.

While the Establishment sought to produce before the

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Court extracts from the Visitors' Book to show that many

impartial and distinguished persons had complimented the

jail authorities on the way managed the prison, Dr. Chitale

placed before us some internal evidence

570

from the materials on record, supplemented strongly by

personal observations recorded while he was an internee in

this very prison by Shri Kuldip Nayar, a responsible

journalist with no apparent motive for mendacity nor

inclination for subjectivity, in his book "In Jail". There

was nothing in the author's view which money could not buy

within the recesses of the prison campus. Giving a factual

narrative, Shri Nayar wrote:................................

' ....... one could get as much money as one

wanted from outside-again at a price. There was a money

order and mail service that perhaps was more dependable

than what the postal department could offer.

For instance, when a prisoner in my ward wanted

two hundred rupees, he sent a note through a warder to

his people in old Delhi and in less than twenty-four

hours he had the money. He paid sixty-six rupees as

collecting charges-thirty-three per cent was the

prescribed "money order charge." .. ....Dharma Teja,

the shipping magnate who served his sentence in Tihar,

for instance, has thousands of rupees delivered to him,

we were told. And if one could pay the jail

functionaries one could have all the comforts one

sought. Teja had all the comforts-he had an air cooler

in his cell a radio-cum-record player set and even the

facility of of using the phone.... Haridas Mundhra, a

businessman who was convicted of fraud, was another

rich man who spent some time in Tihar. Not only did he

have all. the facilities, but he could also go out of

the jail whenever he liked; at times he would be out

for several days and travel even upto Calcutta. All

this of course, cost a lot of money. An even richer

prisoner was Ram Kishan Dalmia, he spent most of his

jail term in hospital. He was known for his generosity

to jail authorities, and one doctor received a car as a

gift.

But more than businessmen it was the smugglers jailed

in Tihar who were lavish spenders. Their food came from Moti

Mahal and their whisky from Connaught Place. They had not

only wine but also women "Babuji, not tarts but real society

girls," one warder said. The women would be brought in when

"the Sahiblog" went home for lunch, and their empty offices

became "recreation rooms."

Corruption in jail was so well organised and so

systematic that everything, went like clockwork once the

price had been paid. Jail employees at almost all levels

were involved, and everyone's share was fixed. There was

never a dispute; there has to be the proverbial honour among

thieves.'

571

One wonders whether such an indictment made by an

established A writer had inclined the Government at least to

appoint an Inquiry Commission to acquaint itself with the

criminal life-style of correctional institutions. The higher

officials also have their finger in the pie, if Nayar were

veracious:

'Perhaps the way almost everyone had his cut was

most evident in our milk supply. It came in bulk to the

main gate (phatak) there, enough milk for the top

officials was taken out of the cans, which were then

topped up with water. And as the cans moved to the

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wards, all those who handled hem appropriated their

share, again topping up with water.

Even more shocking than the corruption was the

ingenious "slave system" we found in the jail. The

slaves were buys between ten and eighteen employed as

'helpers", and there were scores of them. They cooked,

washed utensils, cleaned rooms, fetched water and did

much back breaking labour to "help" the men who were

paid to do these chores. They would be woken up before

6 a.m. to prepare the morning tea and would be allowed

to sleep around 10 p.m. after scrubbing the pots and

pans-they were herded into a ward which had no fan and

no proper sanitary facilities, but was always well lit,

with many bulbs on all night, to enable a sleepy warder

to check at a glance that they were all there.

These boys were undertrial prisoners, many had

been there for eight months and at least one had been

there for two years. They were taken from one court to

another to be tried under one charge or another and

kept in jail all the while. The aim was to keep them in

as long as possible, for without them the people

employed to do the menial duties would have no time to

relax.

one morning I was woken up by the sobbing of a

boy, and found some other "helpers" trying to console

him while a warder stood by quite unmoved. I went up to

him; his curly hair reminded me of Raju, my younger

son. The boy had been picked up the previous evening

from Defence Colony in New Delhi, kept in a police

lock-up for the night and brought to jail in the

morning.'

The crime of punishment is a new crime which the rule

of law must reach at, but what is touching beyond tears,

even if there be but a title of truth in the statement "In

Jail," is about children being lapped

572

up and locked up for use as bonded labour in punitive houses

of justice. The modus operandi is sensitively set down by

Kuldip Nayar:

The warder explained that whenever the number of

prisoners in jail went up, the police were asked to

bring in boys to help with the chores. For the past

several days, the warder said, jail authorities had

been pestering the police to get more helpers as the

number of detenus had gone up. The evening before, when

the boy was buying paan (betel leaf) from a Defence

Colony shop, the police had hauled him up as a

vagabond; they were responding to the jail authorities'

appeal to book more helpers.

"This is nothing new, it has always been like

this," the warder explained. Several undertrial boys

later related to me their tales of woe, how they were

arrested on trumped up charges and how they were being

held in detention on one pretext or another.

We may, at this stage, go in greater detail into the

functional expansion of habeas corpus writs in the current

milieu especially because counsel on both sides have

compellingly contended for an authoritative pronouncement by

this court in favour of a broader jurisdiction.

We have earlier noticed that this valuable writ is

capable of multiple uses as developed in the American

Jurisdiction. Such is the view expressed by many legal

writers. In Harvard Civil Rights and Civil Liberties Law

Review, the view has been expressed that beyond the

conventional blinkers, courts have been to examine the

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manner in which an inmate is held or treated during the

currency of his sentence. Similar is the thinking expressed

by other writers, R. J. Sherpa in "The Law of Habeas Corpus"

(1976) Edn. Juvenal, Satires in 72 Yale Law Journal 506

(1963). In American Jurisprudence there is a pregnant

observation:

The writ is not and never has been a static,

narrow formalistic remedy. Its scope has grown to

achieve its purpose-the protection of individuals

against erosion of the right to be free from wrongful

restraints on their liberty.

573

Corpus Juris, 2d, Vol. 39, page 274, para 7 strikes a

similar note, away from the traditional strain. The courts

in America have, through the decisional process, brought the

rule of law into the prison system pushing back, protanto,

the hands-off doctrine. In the leading case of Coffin v.

Richard the Court of Appeal observed, delineating the ambit

and uses of the writ of habeas corpus:

The Government has the absolute right to hold

prisoners for offences against it but it also has the

correlative duty to protect them against assault or

injury from any quarter . while so held. A prisoner is

entitled to the writ of habeas corpus, when, though

lawfully in custody, he is deprived of some right to

which he is lawfully entitled even in his confinement,

the deprivation of which serves to make his

imprisonment more burdensome than the law allows or

curtails his liberty to a greater extent than the law

permits.

When a man possesses a substantial right, the

court will be diligent in finding a way to protect it.

The fact that a person is legally in prison does not

prevent the use of habeas corpus to protect his other

inherent rights....The judge is not limited to a simple

remand or discharge of the prisoner's civil rights be

respected......

It is significant that the United State Supreme Court

has even considered as suitable for habeas relief,

censorship of prisoners' mail and the ban on the use of law

students to conduct interviews with prison inmates in

matters of legal relief. In Procunier v. Martinez these two

questions fell for decision and the court exercised

jurisdiction even in such an internal matter. In Johnson v.

Avery a disciplinary action was challenged by a prisoner

through a writ of habeas corpus. This indicates the

extension of the nature of the writ in the American

jurisdiction. Incidentally and interestingly, there is

reference to some States in the United States experimenting

with programmes of allowing senior law students to service

the penitentiaries. At a later stage, when we concretise

definite directives, we may have occasion to refer to the

use of senior law students for rendering legal aid to

prisoners; and so it is worthwhile extracting a passage from

Johnson v. Avery (supra) with reference to the Kansas Law

School Programme in Prisons at Leavenworth:

The experience at Leavenworth has shown that there

have been very few attacks upon the (prison)

administra- :

574

tion; that prospective frivolous litigation has been

screened out and that where the law school felt the

prisoner had a good cause of action relief was granted

in a great percentage of cases. A large part of the

activity was disposing of long outstanding detainers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 37

lodged against the inmates. In addition, the programme

handles civil matters such as domestic relations

problems and compensation claims. Even where there has

been no tangible success, the fact that the inmate had

someone on the outside listen to him and analyse his

problems had a most beneficial effect. We think that

these programmes have been beneficial not only to the

inmates but to the students, the staff and the courts.

Incidentally, the presence of law students at the elbow of

the prisoner has a preventive effect on ward and warden.

The content of our constitutional liberties being no

less, the dynamics of habeas writs they developed help the

judicial process here. Indeed. the full potential of Arts.

21, 19, 14, after Maneka Gandhi (supra), has been unfolded

by this Court in Hoskot and Batra. Today, human rights

jurisprudence in India has a constitutional status and

sweep, thanks to Art. 21 so that this Magna Carta may well

toll the knell of human bondage beyond civilised limits.

The supplementary statement of the Superintendent of

the Central Jail (partly quoted earlier) hair-raising when

we find that far from rehabilitation, intensification of

criminality is happening there and the officials are part of

this sub-culture. We, certainly do not wish to generalise

but do mean to highlight the facts of life behind the high

walls as demanding constitutional and administrative

attention. Homage to human rights, if it springs from the

heart, calls for action. Prisons, prison staff and

prisoners-all three are in need of reformation. And this

milieu apparently is not unique to Tihar but common to many

penal institutions.

It is refreshing and heartening that the learned

Solicitor General widened our vista and argued that this

court, having been seized of the problem of prisoners'

fundamental freedoms and their traumatic abridgement, should

give guide-lines in this uncharted area, design procedures

and device mechanisms which will go into effective action

when the restricted yet real rights of prisoners are overtly

or covertly invaded. The jurisdiction of this court to

remedy the violations of prisoners' residuary rights was

discussed at the bar, as also the package of plausible

measures which may appropriately be issued to ensure the

functional success of justice when rights are infringed by

officials or fellow-prisoners. Both sides appreciated the

gravity of the jail situation, the sensitivity of security

considerations, the virginity of this

575

field of law and the necessity for normative rules and

operative monitoring within the framework of judicial

remedies. This constructive stance of counsel unusual in

litigative negativity, facilitated our resolution of the

problems of jail justice, despite the touch of

jurisprudential novelty and call to judicial creativity.

We must formulate the points argued before we proceed

to state our reasoning and record our conclusions.

1. Has the court jurisdiction to consider prisoners'

grievance, not demanding release but, within the

incarceratory circumstances, complaining of ill-treatment

and curtailment short of illegal detention? Yes. We have

answered it.

2. What are the broad contours of the fundamental

rights, especially Arts. 14, 19 and 21 which belong to a

detainee sentenced by Court? Here too, the ground has been

covered.

3. What judicial remedies can be granted to prevent and

punish their breach and to provide access to prison justice?

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4. What practicable prescriptions and proscriptions

bearing on prison practices can be drawn up by the court

consistently with the existing provisions of the Prisons Act

and Rules bent to shape to con form to Part III ?

5. What prison reform perspectives and strategies

should be adopted to strengthen, in the long run, the

constitutional mandates and human rights imperatives?

The canvas was spread wide by counsel and court and we

deal with the arguments within the larger spread-out of the

case. Rulings of this court have highlighted the fact that

the framers of our Constitution have freed the powers under

Art. 32 from the rigid restraints of the traditional English

writs. Flexible directives, even affirmative action moulded

to grant relief may realistically be issued and fall within

its fertile width. The jurisdictional dimension is lucently

laid down by Subba Rao, J. in Dwarkanath case:

This article is couched in comprehensive

phraseology and it ex facie confers a wide power on the

High Courts to reach injustice wherever it is found.

The Constitution designedly used a wide language in

describing the nature of the power, the purpose for

which and the person or authority against whom it can

be exercised. It can issue writs in the nature of

prerogative writs as understood in England; but the

scope of those writs also is widened by the use of the

576

expression "nature" for the said expression does not

equate the writs that can be issued in India with those

in England, but only draws an analogy from them. That

apart, High Courts can also issue directions, orders or

writs other than the prerogative writs. It enables the

High Courts to mould the reliefs to meet the peculiar

and complicated requirements of this country. Any

attempt to equate the scope of the power of the High

Court under Art. 226 of the Constitution with that of

the English Courts to issue prerogative writs is to

introduce the unnecessary procedural restrictions grown

over the years in a comparatively small country like

England with a unitary form of government into a vast

country like India functioning under a federal

structure. Such a construction defeats the purpose of

the article itself.

Where injustice, verging on inhumanity, emerges from

hacking human rights guaranteed in Part III and the victim

beseeches the Court to intervene and relieve, this court

will be a functional futility as a constitutional

instrumentality if its guns do not go into action until the

wrong is righted. The court is not a distant abstraction

omnipotent in the books but an activist institution which is

the cynosure of public hope. We hold that the court can

issue writs to meet the new challenges. Lord Scarman's

similar admonition, in his English Law-The New Dimensions,

is an encouraging omen. The objection, if any, is absolute

because in a prison situation, a Constitution Bench of this

Court (Batra and Sobraj) did imprison the powers of prison

officials to put an under-trial under iron fetters or

confine in solitary cells convicts with death sentences

under appeal.

Once jurisdiction is granted-and we affirm in

unmistakable terms that the court has, under Art. 32 and so

too under Art. 226, a clear power and, therefore, a public

duty to give relief to sentences in prison settings-the next

question is the jurisprudential backing for the play of that

jurisdiction. Here again, Batra has blazed the trial, and it

binds.

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Are prisoners persons? Yes, of course. To answer in the

negative is to convict the nation and the Constitution of

dehumanization and to repudiate the world legal order, which

now recognises rights of prisoners in the International

Covenant of Prisoners' Rights to which our country has

signed assent. In Batra's case, this Court has rejected the

hands-off doctrine and it has been ruled that fundamental n

lights do not flee the person as he enters the prison

although they may suffer shrinkage necessitated by

incarceration. Our constitutional

577

culture has now crystalized in favour of prison justice and

judicial jurisdiction.

The jurisdictional reach and range of this court's

writ to hold prison caprice and cruelty in

constitutional leash is in contentable, but teasing

intrusion into administrative discretion is legal

anathema absent breaches of constitutional rights or

prescribed procedures.

The U.S. Supreme Court, in like situations, has spoken

firmly and 'humanistically, and these observations have the

tacit approval of our Court in Batra's case. Justice Douglas

put it thus.

Prisoners are still 'persons' entitled to all

constitutional rights unless their liberty has been

constitutionally curtailed by procedures that satisfy

all the requirements of due process.

Justice Marshal strongly seconded the view:

I have previously stated my view that a prisoner

does not shed his basic constitutional rights at the

prison gate, and I fully support the court's holding

that the interest of inmates in freedom from-imposition

of serious discipline is a 'liberty' entitled to due

process protection.

We, therefore, affirm that where the rights of a

prisoner, either under the Constitution or under other law,

are violated the writ power of the court can and should run

to his rescue. There is a warrant for this vigil. The court

process casts the convict into the prison system and the

deprivation of his freedom is not a blind penitentiary

affliction but a belighted institutionalisation geared to a

social good. The court has a continuing responsibility to

ensure that the constitutional purpose of the deprivation is

not defeated by the prison administration. In a few cases,

this validation of judicial invigilation of prisoners'

condition has been voiced by this court and finally

reinforced by the Constitution Bench in Batra (supra).

The Court need not adopt a "hands off" attitude in

regard to the problem of prison administration. It is

all the more so because a convict is in prison under

the order and direction of the court."

Under the caption "Retention of Authority over Prisoner

by Sentencing Judge" Krantz notes

578

As noted by Judge Lay in a Judicial Mandate, Trial

Magazine (Nov-Dec. 1971) at p. 15:

It should be the responsibility of the court in

imposing the sentence to set forth as it would in any

equitable decree, the end to be achieved and the

specifics necessary to achieve that purpose. If then,

we are to have accountability in the execution of the

sentence, courts must make clear what is intended in

the imposition of the sentence. Every sentence should

be couched in terms similar to a mandatory injunction.

In this manner, the penology system is to be held to

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account if the government does not faithfully execute

the order.

In other words, the sentencing court should be

required to retain jurisdiction to ensure that the

prison system res ponds to the purposes of the

sentence. If it does not, the sentencing court could

arguably have the authority to demand compliance with

the sentence or even order the prisoner released for

non-compliance.

Whether inside prison or outside, a person shall not be

deprived of his guaranteed freedom save by methods 'right,

just and fair'. Bhagwati J. in Maneka Gandhi observed.

The principle of reasonableness, which legally as

well as philosophically, is an essential element of

equality or non arbitrariness pervades Article 14 like

a brooding omnipresence and the procedure contemplated

by Article 21 must answer the test of reasonableness in

order to be in conformity with Art. 14. It must be

"right and just and fair" and not arbitrary, fanciful

or oppressive; otherwise it would be no procedure at

all and the requirement of Article 21 would not be

satisfied.

Hoskot applied the rule in Maneka Gandhi (supra) to a

prison setting and held that "one component of fair

procedure is natural justice". Thus it is now clear law that

a prisoner wears the armour of basic freedom even behind

bars and that on breach thereof by lawless officials the law

will respond to his distress signals through 'writ' aid. The

Indian human has a constant companion-the court armed with

the Constitution. The weapon is 'habeas', the power is Part

III and the projectile is Batra,

579

No iron curtain can be drawn between the prisoner and

the Constitution.

It is, therefore, the court's concern, implicit in the

power to deprive the sentences of his personal liberty, to

ensure that no more and no less than is warranted by the

sentence happens. If the prisoner breaks down because of

mental torture, psychic pressure or physical R; infliction

beyond the licit limits of lawful imprisonment the Prison

Administration shall be liable for the excess. On the

contrary, if an influential convict is able to buy

advantages and liberties to avoid or water down the

deprivation implied in the. sentence the Prison

Establishment will be called to order For such adulteration

or dilution of Court sentences by executive palliation, if

unwarranted by law. One of us, in Batra observed:

Suffice it to say that, so long as judges are

invigilators and enforcers of constitutionality and

performance auditors of legality, and convicts serve

terms in that grim microcosm called prison by the

mandate of the courts, a continuing institutional

responsibility vests in the system to monitor in the

incarceratory process and prevent security 'excesses'

Jailors are bound by the rule of law and cannot inflict

supplementary sentence under disguises or defeat the

primary purposes of imprisonment.

The upshot of this discussion is but this. The Court

has power and responsibility to intervene and protect the

prisoner against mayhem, crude or subtle, and may use habeas

corpus for enforcing imprison humanism and forbiddance of

harsher restraints and heavier severities than the sentence

carries. We hold these propositions to be self-evident in

our constitutional order and is supported by authority, if

need be. Therefore, we issue the writ to the Lt. Governor

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and the Superintendent of the Central Jail that the

prisoner, Prem Chand, shall not be subjected to physical

manhandling by any jail official, that the shameful and

painful torture to which he has been subjected-a blot on

Government's claim to protect human rights-shall be ended

and the wound on his person given proper medical care and

treatment. The Central Government will, we are sure, direct

its Jail staff not show too pachydermic a disposition for a

democratic government. For example, specific guidelines

before punishing a prisoner had been given in Batra's case

and yet the prisoner Prem Chand has been lodged in the

punishment cell, which is almost the same as a solitary

cell, with cavalier disregard for procedural safeguards.

Merely to plead that many prisoners are 'habituals' is no

ground for habitual

580

violation of law by officials. We direct that Prem Chand be

released from the punishment cell and shall not be subjected

to such severity until fair procedure is complied with.

The chronic callousness of the Prison System to- the

humane demands of the Constitution, despite the fact that

many ministers over many decades in many States have known

the unbroken tradition of prison sub-culture and despite

prison diaries of national figures from Jawaharlal Nehru to

Jay Prakash Narain, has made court and counsel benignly turn

the judicial focus on the future so that further mischief

may not be suffered in incarceration. There is little doubt

that barbarities like bar betters and hand-cuffs were

recklessly being practised either on account of ignorant

unconscionableness or willful viciousness in several

detention camps. Many of the victims are poor, mute,

illiterate, desperate and destitute and too distant from the

law to be aware of their rights or ask for access to

justice, especially when the running tension of the prison

and the grisly potential for zoological reprisals stare them

in the face. So it is for the court to harken when humanity

calls, without waiting for particular petitions. Like class

action, class remedies have pro bono value.

The court-the learned Solicitor General underscored

this constructive approach-must not wait for a stray

petition from some weeping inmate and give the little person

a little relief in the little case but give the nation, its

governments, prison establishments and correctional

departments, needed guidance and also fill with hope the

hearts of those who cherish human rights that the courts

are, after all, sentinels on the qui vive. Law is what law

does and court, if anything, are constitutional in action.

Dr. Chitale, naturally, joined this moving demand. We do

think that there are many, drawn from the class of penury,

who suffer more privations than their sentences justify.

Ralph Ellison's picture of the American Black has relevance

for the prisoner here:

I am an invisible man....I am a man of substance,

of flesh and bone, fibre an liquids-and I might even be

said to possess a mind. I am invisible, understand,

simply because people refuse to see me .... When they

approach me they see only my surroundings, themselves,

or figments of their imagination-indeed, everything and

anything except me.

The invisibility to which I refer occurs because

of a peculiar disposition of the eyes of those with

whom I come in contact. A matter of construction of

their inner eyes,

581

those eyes with which they look through their physical

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eyes .. 4 upon reality....You wonder whether you are

not simply a phantom in other people's minds....You

ache with the need to convince yourself that you do

exist in the real world, that you're a part of all the

sound and anguish, and you strike out with your fists,

you curse and you swear to make them recognise you.

And, alas, it is seldom successful.

In a culture of Antyodaya, the court must rescue the

weakest by preemptive guidance without driving parties to

post facto litigation. In law as in medicine, prevention is

better than cure, a rule jurisprudents have not sufficiently

developed, and so we accede to the request of counsel and

proceed to discuss the normative side of prison justice. C

Before we begin this chapter we might as well set down

what the learned Solicitor General stressed viz. that the

detailed guidelines set out in the separate opinion in

Batra's case (page 488 to 493) are the same as are implicit

in the judgment of Desai J. speaking for the other Judges

and this position should be re-emphasised by this court here

so as to avoid misconception. Desai J. has stated

Justice Krishna Iyer has delivered an elaborate

judgment which deals with important issues raised

before us at great length and with great care and

concern. We have given a separate opinion, not because

we differ with him on fundamentals, but because we

thought it necessary to express our views on certain

aspects of the questions canvassed before us

Likewise, in the separate judgment, a similar statement

is made:

I am aware that a splendid condensation of the

answers to the core questions has been presented by my

learned brother Desai, J and I endorse the conclusion.

A close perusal shows that both the judgments in

Batra's case lay down the same rule and the elaborate

guidelines in the first opinion are a necessary

proliferation of the law expounded in the second judgment in

the case. We hold, agreeing with both counsel, that the

detailed prescriptions in the separate opinion in sunil

Batra (p. 488 to 493) is correct law and binds the penal

institutions in the country. We agree with these guidelines

and express ourselves to that effect since the core question

raised in the present case and the cardinal principles we

have accepted lead to the same conclusions.

At the outset, we notice the widespread prevalence of

legal illiteracy even among lawyers about the rights of

prisoners. Access to law postulates awareness of law and

activist awareness of legal rights

582

in the condition for seeking court justice. So the first

need in the Juristic twilight is for the State to produce

and update a handbook on Prison Justice, lucid, legible for

the lay, accurate, comprehensive and, above all, practical

in meeting the felt necessities and daily problems of prison

life. The Indian Bar has, as part of its judicare tryst as a

special responsibility to assist the State in this behalf. A

useful handbook prepared by the American Civil Liberties

Union was handed upto us by Dr. Chitale titled "The Rights

of Prisoners". Law in the books and in the courts is of no

help unless it reaches the prisoner in under standable

language and available form. We, therefore, draw the .

attention of the State to the need to get ready Prisoner's

Handbook in the regional language and make them freely

available to the in mates. To know the law is the first step

to be free from fear of unlaw.

Prisoners are peculiarly and doubly handicapped. For

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 37

one thing, most prisoners belong to the weaker segment, in

poverty, literacy, social station and the like. Secondly,

the prison house is a walled-off world which is

incommunicado for the human world, with the result that the

bonded inmates are invisible, their voices inaudible, their

injustices unheeded. So it is imperative, as implicit in

Art. 21 that life or liberty shall not be kept in suspended

animation or congealed into animal existence without the

freshing flow of air, procedure. 'The meaning of 'life'

given by Field J., approved in Kharak Singh' and Maneka

Gandhi bears exception:

Something more than mere animal existence. The

inhibition against its deprivation extended to all

those limbs and faculties by which life is enjoyed. The

provision equally prohibits the mutilation of the body

by the amputation of an arm. Or leg, or the putting out

of an eye, or the destruction of any other organ of the

body through which the soul communicates with the outer

world

Therefore, inside prisons are persons and their

personhood, if crippled by law-keepers turning law-breakers,

shall be forbidden by the Writ of this Court from such wrong

doing. Fair procedure, in dealing with prisoners, therefor,

calls for another dimensions of access to law-provision,

within easy reach, of the law which limits liberty to

persons who are prevented from moving out of prison gates.

A handbook meets the logistics of the law in field. Of

course, the prison staff also suffer from the pathology of

misinformation or non-education about rights and limitations

and this ignoratia juris

583

situation leads to insensitivity to human rights and a test

in the hand-book of prison law must be a minimum for

recruitment. The peril to prison rights is from the

uninstructed personnel, apart from the anticultural ethos

which permeates. It behoves Government to insist on the

professional requirement, for warders and wardens, of a

hearty familiarity with the basics of Prison Law.

Rights jurisprudence is important but becomes an

abstraction in the absence of remedial jurisprudence. Law is

not an omnipotence in the sky but a loaded gun which, when

triggered by trained men with ballistic skill, strikes the

offending bull's eye. We have made it clear . ' that no

prisoner can be personally subjected to deprivations not

necessitated by the fact of incarceration and the sentence

of court. All other freedoms belong to him to read and

write, to exercise and recreation, to meditation and chant,

to creative comforts like protection from extreme cold and

heat, to freedom from indignities like compulsory nudity,

forced sodomy and other unbearable vulgarity, to movement

within the prison campus subject to requirements of

discipline and security, to the minimal joys of self-

expression, to acquire skills and techniques and all other

fundamental rights tailored to the limitations of

imprisonment.

Chandrachud J, long ago, spelt out the position and we

affirm it:

"Convicts are not, by mere reason of the

conviction, denuded of all the fundamental rights which

they otherwise possess. A compulsion under the

authority of law, following upon a conviction, to live

in a prison-house entails by its own force the

deprivation of fundamental freedoms like the right to

move freely throughout the territory of India 11 or the

right to 'practise' a profession. A man of profession

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would thus stand stripped of his right to hold

consultations while serving out his sentence. But the

Constitution guarantees other freedoms like the right

to acquire, hold and dispose of property for the

exercise of which incarceration . can be no impediment.

Likewise, even a convict is entitled G to the precious

right guaranteed by Article 21 of the Constitution that

he shall not be deprived of his life or personal

liberty except according to procedure established by

law."

We think it proper to suggest that in our country of

past colonial subjection and consequent trepidation in life,

publicity officially is

584

necessary for rights to be appreciated even by the

beneficiaries. Therefore, large notice boards displaying the

rights and responsibilities on prisoners may be hung up in

prominent places within the prison in the language of the

people. We are dealing with the mechanics of bringing the

law within the wakeful ken of the affected persons.

Sec. 61 of the Prisons Act, simplied imaginatively

leads to the same result. That section reads:

"Copies of rules, under sections 59 and 60 so far

as they affect the government of prisons, shall be

exhibited, both in English and in the Vernacular, in

some place to which all persons employed within a

prison have access."

We think it right to hold that copies of the Prison

Manual shall be kept within ready reach of prisoners.

Darkness never does anyone any good and light never any

harm.

Perhaps, the most important right of a prisoner is to

the integrity of his physical person and mental personality.

This Court in Batra's case has referred to the international

wave of torture of prisoners found in an article entitled

'Minds Behind Bars'. That heightens our anxiety to solve the

issue of prisoners' protection.

The problem of law, when it is called upon to defend

persons hidden by the law, is to evolve a positive culture

and higher consciousness and preventive mechanisms,

sensitized strategies and humanist agencies which will bring

healing balm to bleeding hearts. Indeed, counsel on both

sides carefully endeavoured to help the Court to evolve

remedial processes and personnel within the framework of the

Prisons Act and the parameters of the Constitution.

Inflictions may take many protean forms, apart from

physical assaults. Pushing the prisoner into a solitary

cell, denial of a necessary amenity, and, more dreadful

sometimes, transfer to a distant prison where visits or

society of friends or relations may be snapped, allotment of

degrading labour, assigning him to a desperate or tough gang

and the like, may be punitive ineffect. Every such

affliction or abridgment is an infraction of liberty or life

in its wider sense and cannot be sustained unless Art. 21 is

satisfied. There must be a corrective legal procedure, fair

and reasonable and effective. Such infraction will be

arbitrary, under Article 14, if it is dependent on unguided

discretion, unreasonable, under Art. 19 if it is

irremediable and unappealable and unfair, under Art. 21 if

it violates natural justice. The string of guidelines in

Batra set out in the first judgment, which we adopt,

provides for a hearing at some stages, a review by a

superior, and early judicial consideration so that the

proceedings may not

585

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hop from Caesar to Caesar. We direct strict compliance with

those A norms and institutional provisions for that purpose.

Likewise, no personal harm, whether by way of

punishment or otherwise, shall be suffered by a prisoner

without affording a preventive, or in special cases, post

facto remedy before a impartial, competent, available

agency. R

The Court is always ready to correct injustice but it

is no practical proposition to drive every victim to move

the court for a writ, knowing the actual hurdles and the

prison realities. True, technicalities and legal niceties

are no impediment to the court entertaining even an informal

communication as a proceeding for habeas corpus if the basic

facts are found; still, the awe and distance of courts, the

legalese and mystique, keep the institution unapproachable.

More realistic is to devise a method of taking the healing

law to the injured victim. That system is best where the

remedy will rush to the injury on the slightest summons. So,

within the existing, dated legislation, new meanings must be

read. Of course, new legislation is the best solution, but

when lawmakers take for too long for social patience to

suffer, as in this very case of prison reform, courts have

to make-do with interpretation and carve on wood and sculpt

on stone ready at hand and not wait for far away marble

architecture. Counsel rivetted their attention on this

pragmatic engineering and jointly helped the court to

constitutionalise the Prisons Act prescriptions. By this

legal energetics they desired the court to read into vintage

provisions legal remedies.

Primari1y, the prison authority has the duty to given

effect to the court sentence. (See for e.g. SS. 15 and 16 of

the Prisoners Act, 1900). To give effect to the sentence

means that it is illegal to exceed it and so it follows that

a prison official who goes beyond more imprisonment or

deprivation of locomotion and assaults or otherwise compels

the doing of things not covered by the sentence acts in

violation of Art. 19. Punishments of rigorous imprisonment

oblige the inmates to do hard labour, not harsh labour and

so a, vindictive officer victimising a prisoner by forcing

on him particularly harsh and degrading jobs, violates the

law's mandate. For example, a prisoner, if forced to carry

night soil, may seek a habeas writ. 'Hard labour' in s. 53

has to receive a humane meaning. A girl student or a male

weakling sentenced to rigorous imprisonment may not be

forced to break stones for nine hours a day. The prisoner

cannot demand soft jobs but may reasonably be assigned

congenial jobs. Sense and sympathy are not enemies of penal

asylum.

586

Section 27 (2) and (3) of the Prisons Act states:

27. The requisitings of this Act with respect to the

separations of prisoners are as follows:

(1) xx xx

(2) in a prison where male prisoners under the are of

twenty-one arc confined, means shall be provided

for separating them altogether from the other

prisoners and for separating those of them who

have arrived at the age of puberty from those who

have not.

(3) unconvicted criminal prisoners shall be kept apart

from convicted criminal prisoners; and

The materials we have referred to earlier indicate

slurring over this rule and its violation must be visited

with judicial correction and punishment of the jail staff.

Sex excesses and exploitative labour are the vices

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adolescents are subjected to by adults. The young inmates

must be separated and freed from exploitation by adults. If

Kuldip Nayar is right this rule is in cold storage. lt is

inhuman and unreasonable to throw young boys to the sex-

starved adult prisoners or to run menial jobs for the

affluent or tough prisoners. Art. 19 then intervenes and

shields.

Section 29 and connected rules relating to solitary

confinement have been covered by Batra's case. But Prem

Chand, in this very case, has been sent to a 'solitary' or

'punishment' cell without heeding the rule in Batra's

regarding impost of punitive solitary confinement. We cannot

agree that the cell is not 'solitary' and wonder what

sadistic delight is derived by the warders and wardens by

SUCH cruelty. Any harsh isolation from society by long,

lonely, cellular detention is penal and so must be inflicted

only consistently with fair procedure. The learned Solicitor

General mentioned that some prisoners, for their own safety,

may desire segregation. In such cases, written consent and

immediate report to higher authority are the least, if abuse

is to be tabooed.

Visit to prisoners by family and friends are a solace

in insulation; and only a dehumanised system can derive

vicarious delight in depriving prison inmates of this humane

amenity. Subject, of course, to search and discipline and

other security criteria, the right to society of fellow-men,

parents and other family members cannot be denied in the

light of Art. 19 and its sweep. Moreover the whole

habilitative purpose of sentencing is to soften, not to

harden, and this will be promo-

587

ted by more such meetings. A sullen, forlorn prisoner is a

dangerous criminal in the making and the prison is the

factory! Sheldon Krantz rightly remarks:

In 1973, the National Advisory Commission argued

that prisoners should have a "right" to visitation.

Task Force Report, Corrections (1973) at 66. It also

argued that ' correctional officials should not merely

tolerate visiting but should encourage it, particularly

by families. Although the Commission recognised that

regulations were necessary to contend with space

problems and with security concerns, it proposed that

priority be given to making visiting areas pleasant and

unobtrusive. It also urged that corrections officials

should not eavesdrop on conversations or otherwise

interfere with the participants' privacy. Thus,

although there may be current limitations on the

possible use of the Constitution on visitation by

family and friends, public policy should dictate

substantial improvements in this area, in any event.

We see no reason why the right to be visited under

reasonable restrictions, should not claim current

constitutional status. We hold, t subject to considerations

of security and discipline, that liberal visits by family

members, close friends and legitimate callers, are part of

the r prisoners' kit of rights and shall be respected.

Parole, again, is a subject which is as yet

unsatisfactory and arbitrary but we are not called upon to

explore that constitutional area and defer it. Likewise, to

fetter prisoners in iron is an inhumanity unjustified save

where safe custody is otherwise impossible. The routine

resort to handcuffs and irons bespeaks a barbarity hostile

to our goal of human dignity and social justice. And yet

this unconstitutionally is heartlessly popular in many

penitentiaries so much so a penitent law must proscribe its

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use in any but the gravest situation.

These rights and safeguards need a machinery. The far

internal invigilation and independent oversight cannot be

overemphasised. Prisoners' rights and prison wrongs are a

challenge to remedial creativity.

Krantz, in his book, (supra) notes:

To respond to the need for effective grievance

procedures will probably require both the ceation of

internal pro-

588

grams (formal complaint procedures) and programs

involving "outsiders" (ombudsmen, citizens

investigative committees, mediators, etc).

So, apart from judicial review for prisoners' rights

and conditions of confinement, we have to fabricate instant

administrative grievance procedures.

Indeed, a new chapter of offences carrying severe

punishments when prison officials become delinquents is an

urgent item on the agenda of prison reform; and lodging of

complaints of such offences together with investigation and

trial by independent agencies must also find a place in such

a scheme. We are dealing with a morbid world where sun and

light are banished and crime has neurotic dimensions.

Special situations need special solutions.

We reach the most critical phase of counsel's

submissions viz., the legal fabrication and engineering of a

remedial machinery within the fearless reach of the weakest

of victims and worked with independence, accessibility and

power to review and punish. Prison power, absent judicial

watch tower, may tend towards torture.

The Prisons Act and Rules need revision if a

constitutionally and culturally congruous code is to be

fashioned. The model jail manual, we are unhappy to say and

concur in this view with the learned Solicitor General, is

far from a model and is, perhaps, a product of prison

officials insufficiently instructed in the imperatives of

the Constitution and unawakened to the new hues of human

rights. We accept, for the nonce, the suggestion of the

Solicitor General that within the existing statutory

framework the requirements of constitutionalism nay be read.

He heavily relies on the need for a judicial agency whose

presence, direct or by delegate, within the prison walls

will deal with grievances. For this purpose, he relies on

the Board of Visitors, their powers and duties, as a

functional substitute for a Prison ombudsman. A

controllerate is the desideratum for in situ reception and

redressal or grievances.

After all, the daily happenings, when they hurt

harshly, have to be arrested forthwith, especially when it

is the prison guards and the head warders who brush with the

prison inmates. Their behaviour often causes friction and

fear but when their doings are impeached, the institutional

defence mechanism tends to protect them from top to bottom.

So much so, injustice escapes punishment.

In this context it is apt to quote David Rudovsky:

589

The present system puts absolute discretion and

day-to-day power over every aspect of a prisoner's life

in their hands. It is this part of prison life which

causes the deepest resentment among prisoners for, to a

large extent, the manner in which an inmate is treated

by the guards determines the severity of conditions he

will have to endure. It is a doub1e irony that the

lower the level of authority in prison (from warden on

down to guard) the greater tho discretion that is

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vested in the prison official and the less willing the

courts are to review their decisions. 'Thus, whether it

be a request for medical treatment, the right to go to

the yard of prison library, or the potentially more

serious matter of prison discipline and punishment, the

guard of the block holds ultimate power over the

prisoner. Complete discretion in the context of prison

life where no remedies exist to correct it, can be

catastrophic, Judge Sobeloff has put it bluntly:

In fact, prison guards may be more vulnerable to

the corrupting influence of unchecked authority than

most people. It is well known that prisons are operated

on minimum budgets and that poor salaries and working

conditions make it difficult to attract high-calibre

personnel. Moreover, the "training" of the officers in

dealing with obstreperous prisoners is but a euphemism

in most states. George A. Ellis quotes a prisoner's

letter:

You cannot rehabilitate a man through brutality

and disrespect...If you treat a man like an animal,

then you must expect him to act like one. For every

action, there is a reaction...And in order for an

inmate, to act like a human being you must trust him as

such.. You can't spit in his face and expect him to

smile and-say thank you.

The institution and composition of the Board of

Visitors comes in handy and has statutory sanction. The

visitatiorial power is wide the panel of visitors includes

judicial officers and such situation can be pressed into

service legally to fulfil the constitutional needs. Para 47

read with para 53-A sets out the structure of the Board Para

47(b) to (d) includes District & Sessions Judges, District

Magistrates and Sub-Divisional Magistrates among the

members. The functions of visitors are enumerated in para

53, and 53-B and they include (a)

590

inspect the barracks, cells, wards workshed and other

buildings of the jail generally and the cooked food; (b)

ascertain whether considerations of health, cleanliness, and

security are. attended to, whether proper management and

discipline are maintained in every respect, and whether any

prisoner is illegally detained, or is detained for an undue

length of time, while awaiting trial; (c) examine jail

registers and records; (d) hear, attend to all

representations and petitions made, by or on behalf of

prisoners; and (e) direct, if deemed advisable, that any

such representation or petitions be forwarded to Government.

In the sensitive area of prison justice, the judicial

members have special responsibilities and they must act as

wholly independent overseers and not as ceremonial

panelists. The judges are guardians of prisoners' rights

because they have a duty to secure the execution of the

sentences without excesses and to sustain the personal

liberties of prisoners without violence on or violation of

the inmates' personality. Moreover, when a wrong is done

inside jail the judicial visitor is virtually a peripatetic

tribunal and sentinel, at once intramural and extra-mural,-

observer, receiver and adjudicator of grievance.

What then. are prisoner Prem Chands' rights, in the

specific set t ng of this case, where the complaint is that

a jail warder, for pernicious purposes, inflicted physical

torture ?

The Punjab Prison Manual clearly lays down the duties

of District Magistrates with reference to Central Jails.

Para 41 (l) and (3) read thus:

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41. (l) It shall be the duty of the Magistrate of

the district from time to time to visit and inspect

jails situate within the limits of his district and to

satisfy himself that the provisions of the Prisons Act,

1894, and of all rules, regulations, directions and

orders made or issued thereunder applicable to such

jail, are duly observed and enforced.

xx xx xx

(3) A record of the result of each visit and

inspection made, shall be entered in a register to be

maintained by the Superintendent for the purpose.

Para 42 is also relevant:

42. In the absence of the Magistrate of the

district from headquarters, or in the event of that

officer being at any time unable from any cause to

visit the jail in the manner in these rules prescribed

in that behalf, he shall depute a Magistrate

591

subordinate to him who is available for the duty, to

visit and A inspect the jail on his behalf. Any officer

so deputed may, subject to the control of the

Magistrate of the district. exercise all or any of the

powers by the Prisons Act, 1894, or these rules,

conferred upon the Magistrate of the district.

Paragraph 44 clothes the District Magistrate with powers and

makes his orders liable to be obeyed.

44. (1) The orders passed under sub-section (2) of

section l of the Prisons Act, 1894, should, except in

emergent cases in which immediate action is, in the

opinion of such Magistrate necessary, be so expressed

that the Superintendent may have time to refer (if he

thinks necessary) to the Inspector-General before

taking action thereon.

(2) All orders issued by the Magistrate of the

district shall, if expressed in terms requiring

immediate compliance, be forthwith obeyed and a report

made, as prescribed in the said sub-section, to the

Inspector-General. D

We understand these provision to cover the ground of

reception of grievance from prisoners and issuance of orders

thereon after prompt enquiry. The District Magistrate must

remember that in this capacity he is a judicial officer and

not an executive head and must function as such

independently of the prison executive. To make prisoners'

rights in correctional institutions viable, we direct the

District Magistrate concerned to inspect the jails in his

district once every week receive complaints from individual

prisoners and enquire into them immediately. If he is too

preoccupied with urgent work, para graph 42 enables him to

depute a magistrate subordinate to him to visit and inspect

the jail. What is important is that he should meet the

prisoners separately if they have grievances. The presence

of warders or officials will be inhibitive and must be

avoided. He must ensure that, his enquiry is confidential

although subject to natural justice and does not lead to

reprisals by jail officials. The rule speaks of the record

of the result of each visit and inspection. This empowers

him to enquire and pass orders. All orders issued by him

shall be immediately complied with since obedience is

obligated by para 44(2). In the event of non-compliance he

should immediately inform Government about such disobedience

and advise the prisoner to forward his complaint to the High

Court under Art. 226 together with a copy of his own report

to help the High Court exercise its habeas corpus power.

Indeed, it will be practical, as suggested by the learned

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Solicitor General, if the District Magistrate keeps a

grievance box in each

592

ward to which free access shall be afforded to every inmate.

It should be kept locked and sealed by him and on his

periodical visit, he alone, or his surrogate, should open

the box, find out the grievances, investigate their merits

and take remedial action, it justified.

Chapter V of the Manual deals with visitors who arc an

important component of jail management. Para 47 specially

mentions District & Sessions Judges, District Magistrates,

Sub-Divisional Magistrates and Superintendent of Police as

members of the Board of Visitors. In fact, Sessions Judges

arc required to visit the jails periodically-the District

Magistrates and Sub Divisional Magistrates and magistrates

subordinate to them and others appointed by them in this

behalf are to visit jails in their jurisdiction once a week

under the existing Rule. We direct, in implementation of the

constitutional obligation we have already discussed at

length to safeguard prisoners' fundamental rights, that the

Sessions Judges and District Magistrates or other

subordinates nominated by them shall visit jails once a week

in their visitorial functions.

Para 49 has strategic significance and may be

reproduced:

49. (1) Any official visitor may examine all or

any of the books, papers and records of any department

of, and may interview any prisoner confined in the

jail.

(2) It shall be the duty of every official visitor

to satisfy himself that the provisions of the Prisons

Act, 1894, and of the rules, regulations, orders and

directions made or issued J thereunder, are duly

observed, and to hear and bring to notice any complaint

or representation made to him by any prisoner.

We understand this provision to mean that the Sessions

Judge, District Magistrate or their nominees shall hear

complaints, examine all documents, take evidence, interview

prisoners and check to see if there is deviance,

disobedience, delinquency or the like which infringes upon

the rights of prisoners. They have a duty "to hear and bring

to notice any complaint or representation made to him by any

prisoner". Nothing clearer is needed to empower these

judicial officers to investigate and adjudicate upon

grievances. We direct the Sessions Judges concerned, under

his lock and seal, to keep a requisite number of grievance

boxes in the prison and give necessary directions to The

Superintendent to see that free access is afforded to put in

complaints of encroachments, injuries or torture by any

prisoner, where he needs remedial action. Such boxes shall

hot be tampered with by any one

593

and shall be opened only under the authority of the Sessions

Judge. We need hardly emphasise the utmost vigilance and

authority that the Sessions Judge must sensitively exercise

in this situation since prisoner's personal liberty depends,

in this undetectable campus upon his awareness, activism,

adjudication and enforcement. Constitutional rights shall

not be emasculated by the insouciance of judicial officers.

The prison authorities shall not, in any manner,

obstruct or noncooperate with reception or enquiry into the

complaints otherwise, prompt punitive action must follow the

High Court or the Supreme Court must be apprised of the

grievance so that habeas corpus may issue after due hearing.

Para 53 is important in this context and we reproduce it

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below:

53. All visitors shall be afforded every facility

for observing the state of the jail, and the management

thereof, and shall be allowed access under proper

regulations, to all parts of the jail and to every

prisoner confined therein.

Every visitor should have the power to call for

and inspects any book or other record in the jail

unless the Superintendent, for reasons to be recorded

in writing, declines on the ground that its production

is undesirable. Similarly, every visitor should have

the right to see any prisoner and to put any questions

to him out of the hearing of any jail officer. E There

should be one visitor's book for both classes of

visitors, their remarks should in both cases be

forwarded to the Inspector General who should pass such

orders as he thinks necessary, and a copy of the

Inspector-General's order should be sent to the visitor

concerned.

Paras 53-B and 53-D are not only supplementary but

procedurally vital, being protective provisions from the

stand-point of prisoners. We except them here for double

emphasis although adverted to earlier:

53-B. All visitors, official and non-official, at

every visit, shall-

(a) inspect the barracks, cells, wards, workshed

and other buildings of the jail generally and

cooked food;

(b) ascertain whether considerations of health,

cleanliness, and security are attended to,

whether proper management and discipline are

maintained in every respect, and whether any

prisoner is illegally detrained,

594

Or is detained for an undue length of time,

while awaiting trial;

(c) examine jail registers and records;

(d) hear, attend to all representations and

petitions made, by or on behalf of prisoners;

and

(e) direct, if deemed advisable, that any such

representations or petitions be forwarded to

Government.

53-D. No prisoner shall be punished for any

statement made by him to a visitor unless an enquiry

made by a Magistrate results in a finding that it is

false.

We hope-indeed, we direct-the judicial and other official

visitors to live upto the expectations of these two rules

and strictly implement their mandate. Para 54 is also part

of this package of visitatorial provisions with invigilatory

relevance. We expect compliance with these provisions and if

the situation demands it, report to the High Court for

action in the case of any violation of any fundamental right

of a prisoner.

The long journey through jail law territory proves that

a big void exists in legal remedies for prisoner injustices

and so constitutional mandates can become living companions

of banished humans only if non-traditional procedures, duly

oriented personnel and realistic reliefs meet the functional

challenge. Broadly speaking, habeas corpus powers and

administrative measures are the pillars of prisoners'

rights. The former is invaluable and inviolable, but for an

illiterate, timorous, indigent inmate community judicial

remedies remain frozen. Even so, this constitutional power

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must discard formalities, dispense with full particulars and

demand of the detainer all facts to decide if humane and

fair treatment prevails, constitutionally sufficient and

comporting with the minimum international standards for

treatment of prisoners. Publicity within the prison

community of court rulings in this area will go a long way

to restore the morale of inmates and, hopefully, of the

warders. So we direct the Delhi Administration to reach, in

Hindi, the essentials of this ruling to the ken of the jail

people.

The stress that we lay is on the need of the Court to

be dynamic and diversified in meeting out remedies to

prisoners. Not merely the contempt power but also the power

to create ad hoc, and use the services of, officers of

justice must be brought into play. In this very case, Dr.

Chitale, as amicus curiae, was so authorised, with

satisfactory results. American juristic thought has

considered similar action: by courts using

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Masters-Primarily factfinders for the court;

Receivers-Primarily hold, manage, or liquidate

property;

"Special" Masters-responsible for multiple

functions such as fashioning a plan and assisting in

its implementation;

Monitors-responsible for observing the

implementation process and reporting to the court; and

Ombudsmen-responsible for hearing inmate

complaints and grievances, conducting investigations

and making recommendations to the court.

Courts which have utilised some of these special

officers including; Hamilton v Schiro, 388 F. Supp.

1016 (E.D.La. 1970); and, Jackson v. Hendrick 321 A. 2d

603 (Pa. 1974) (Special Masters); Wayne County Bd. Of

Comm'rs., Civ. Action 173271 (Cir. Ct. Of Wayne City.,

Nich., 1972) (Monitor); and, Morales v. Turman, 364 F.

Suppl. 166 E.D. Tex 1973) (ombudsmen).

The use of special judicial officers, like the use

of the contempt power, holds considerable promise for

assisting courts in enforcing judicial orders.

Hopefully, their use will be expanded and refined over

time.

These measures are needed since the condition is escalating.

The situation in Tihar Jail is a reflection of crime

explosion, judicial slow-motion and mechanical police action

coupled with unscientific negativity and expensive futility

of the Prison Administration. The Superintendent wails in

court that the conditions are almost unmanageable:

(i) Huge overcrowding in the jail. Normal

population of the jail remains between 2300-

2500 against 1273 sanctioned accommodation.

(ii) No accommodation for proper classification

for undertrials, females, habituals, casuals,

juveniles, political prisoners etc. etc.

(iii) Untrained staff of the Assistant

Superintendents. Assistant Superintendents

are posted from other various departments of

Delhi Admn. viz. Sales Tax, Employment,

Revenue, Civil Supplies etc., etc.

(iv) Untrained mostly the warders guard and their

being non-transferable.

596

(v) A long distance from the courts of the jail

and production of a large number of

undertrial prisoners roughly between 250-300

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daily and their receiving back into the jail

in the evening.

(vi) The population of the jail having a large

number of drugs addicts, habitual pickpockets

having regular gangs outside to lookafter

their interests legal and illegal both from

outside.

Other jails may compete with Tihar to bear the palm in

bad treatment and so the problem is pan-Indian. That is why

we have been persuaded by the learned Solicitor General to

adventure into this undiscovered territory. The Indian Bar,

and may be, the Bar Council of India and the academic

community, must aid the court and country in this operation

Prison Justice. In a democracy, a wrong to some one is a

wrong to every one and an unpunished criminal makes society

vicariously guilty. This larger perspective validates our

decisional range.

Before we crystalise the directions we issue one

paramount thought must be expressed. The goal of

imprisonment is not only punitive but restorative, to make

an offender a non-offender. In Batra's case this desideratum

was stated and it is our constitutional law, now implicit in

Art. 19 itself. Rehabilitation is a prized purpose of prison

'hospitalization'. A criminal must be cured and cruelty is

not curative even as poking a bleeding wound is not healing.

Social justice and social defence-the sanction behind prison

deprivation-ask for enlightened habilitative procedures. A

learned writer has said:

The only way that we will ever have prisons that

operate with a substantial degree of justice and

fairness is when all concerned with that prison-staff

and prisoners alike-share in a meaningful way the

decision-making process, share the making of rule and

their enforcement. This should not mean three

"snitches" appointed by the warden to be an "inmate

advisory committee". However, if we are to instill in

people a respect for the democratic process, which is

now the free world attempts to live, we are not

achieving that by forcing people to live in the most

etalitarian institution that we have in our society.

Thus, ways must be developed to involve prisoners in

the process of making decision that affect every aspect

of their life in the prison.

The Standard Minimum Rules, put out by United Nations

agencies also accent on socialisation of prisoners and

social defense:

597

57. Imprisonment and other measures which result

in cutting off an offender from the outside world are

afflictive by the very fact of taking from the person

the right of self-determination by depriving him of his

liberty. Therefore the prison system shall not except

as incidental to justifiable segregation or the

maintenance of discipline, aggravate the suffering

inherent in such a situation.

58. The purpose of justification of a sentence of

imprisonment or a similar measure deprivative of

liberty is ultimately to protect society against crime.

This end can only be achieved if the period of

imprisonment is used to ensure, so far as possible,

that upon his return to society the offender is not

only willing but able to lead a law-abiding and self

supporting life.

59. To this end, the institution should utilize

all the remedial, educational, moral, spiritual and

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other forces and forms of assistance which are

appropriate and available, and should seek to apply

them according to the individual treatment needs of the

prisoners.

Prison-processed rehabilitation has been singularly

unsuccessful in the West and the recidivism rate in our

country also bears similar testimony: To get tough, to

create more tension, to inflict, more cruel E; punishment,

is to promote more stress, more criminality, more desperate

beastliness and is self-defeating though soothing to

sadists. Hallock, a professor at the University of Wisconsin

says:

The stresses that lead to mental illness are often

the same stresses that lead to crime. Mental illness

always has a maladaptive quality, and criminality

usually has a maladaptive quality.

The final panacea for prison injustice is, therefore,

more dynamic, far more positive, strategies by going back to

man, the inner man The ward-warden relationship needs

holistic repair if prisons are, in Gandhian terms, to become

hospitals, if penology, as modern criminologists claim, is

to turn therapeutic. The hope of society from investment in

the penitentiary actualises only when the inner man within

each man, doing the penance of prison life, transforms his

outer values and harmonises the environmental realities with

the infinite potential of his imprisoned being. Meditative

experiments, follow-up researches and welcome results in

many countries lend optimism to

598

techniques of broadening awareness, deepening consciousness

and quietening the psychic being.

It is of seminal importance to note that the Tamil Nadu

Prison Reforms Commission (1978-79) headed by a retired

Chief Justice of the High Court of Patna, working with a

team of experts. has referred with approval to successful

experiments in Transcendental Meditation in the Madurai

Central Prison:

Success has been claimed for this programme. It is

re ported that there is "reduction of anxiety and fear

symptoms, greater flexibility in dealing with

frustration, increased desire to care for others, and

ability to interact in group situations viz. rational

rather than purely aggressive means. Some in mates

reported spontaneous reduction in clandestine use of

alcohol and ganja; and even cigarette smoking was less.

Prison authorities informed us that they noticed

personality changes in some of these prisoners, and

that they now had the calm and pleasant exchanges with

these inmates. Their behaviour towards others in the

prison and relationship with prison authorities also

changed considerably". There is a proposal to extend

this treatment to short term prisoners also. This

treatment may also be tried in other prisons where

facilities exist. A copy of the report of the Director

of the Madurai Institute of Social Work is in Appendix

XI.

The time for prison reform has come when Indian

methodology on these lines is given a chance. We do no more

than indicate the sign post to Freedom From Crime and

Freedom Behind Bars as a burgeoning branch of therapeutic

jurisprudence. All this gains meaning where we recognise

that mainstreaming prisoners into community life as willing

members of a law-abiding society is the target. Rule 61 of

the Standard Minimum Rules stresses this factor:

61. The treatment of prisoners should emphasize

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not their exclusion from the community, but their

continuing part in it. Community agencies should,

therefore, be enlisted wherever possible to assist the

staff of the institution in the task of social

rehabilitation of the prisoners. There should be in

connection with every institution social workers

charged with the duty of maintaining and improving all

desirable relations of a prisoner with his family and

with valuable social

599

agencies. Steps should be taken to safeguard, to the

minimum extent compatible with the law and the

sentence, the rights relating to civil interests,

social security rights and other social benefits of

prisoners.

It follows that social resources, helpful to humane

treatment and mainstreaming, should be ploughed in, senior

law students screened by the Dean of reputed Law Schools may

usefully be deputed to interview prisoners, subject to

security and discipline. The grievances so gathered can be

fed back into the procedural mechanism viz. the District

Magistrate or Sessions Judge. The Delhi Law School, we

indicate, should be allowed to send selected students under

the leadership of a teacher not only for their own clinical

education but as prisoner-grievance-gathering agency. Other

service organisation, with good credentials, should be

encouraged, after due checking for security, to play a role

in the same direction. The Prisons Act does provide for

rule-making and issuance of instructions which can take care

of this suggestion.

Omega

The omega of our judgment must take the shape of clear

directives to the State and prison staff by epitomising the

lengthy discussion. To clinch the issue and to spell out the

precise directions is the next step.

1. We hold that Prem Chand, the prisoner, has been

tortured illegally and the Superintendent cannot absolve

himself from responsibility even though he may not be

directly a party. Lack of vigilance is limited guilt. We do

not fix the primary guilt because a criminal case is pending

or in the offing. The State shall take action against the

investigating police for the apparently collusive

dilatoriness and deviousness we have earlier indicated.

Policing the police is becoming a new ombudsmanic task of

the rule of law. G

2. We direct the Superintendent to ensure that no

corporal punishment or personal violence on Prem Chand shall

be inflicted. No irons shall be forced on the person of Prem

Chand in vindictive spirit. In those rare cases of

'dangerousness' the rule of hearing and reasons set out by

this Court in Batra's case and elaborated earlier shall be

complied with.

600

3. Lawyers nominated by the District Magistrate,

Sessions Judge, High Court and the Supreme Court will be

given all facilities for inter views, visits and

confidential communication with prisoners subject to

discipline and security considerations. This has roots in

the visitatorial and supervisory judicial role. The lawyers

so designated shall be bound to make periodical visits and

record and report to the concerned court results which have

relevance to legal grievances.

4. Within the next three months, Grievance Deposit

Boxes shall be maintained by or under the orders of the

District Magistrate and the Sessions Judge which will be

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opened as frequently as is deem-d fit and suitable action

taken on complaints made. Access to such boxes shall be

accorded to all prisoners.

5. District Magistrates and Sessions Judges shall,

personally or through surrogates, visit prisons in their

jurisdiction and afford effective opportunities for

ventilating legal grievances, shall make expeditious

enquiries there into and take suitable remedial action. In

appropriate cases reports shall be made to the High Court

for the latter to initiate, if found necessary, habeas

action.

It is significant to note the Tamil Nadu Prison Reforms

Commission's observations:

38.16. Grievance Procedure :-This is a very

important right of a prisoner which does not appear to

have been properly considered. The rules regulating the

appointment and duties of non-official visitors and

official visitors to the prisons have been in force for

a long time and their primary functions is "to visit

all parts of the jail and to see all prisoners and to

hear and enquire into any complaint that any prisoner

hear make". In practice, these rules have not been very

effective in providing a forum for the prisoners to

redress their grievances. There are a few non-official

visitors who take up their duties conscientiously and

listen to the grievances of the prisoners. But most of

them take this appointment solely as Fl a post of

honour and are somewhat reluctant to record hl the

visitors' book any grievance of a prisoner which might

cause embarrassment to the prison staff. The judicial

officers, viz.,

601

the Sessions Judge and the Magistrates who are also ex-

officio visitors do not discharge their duties

effectively.

We insist that the judicial officers referred to by us

shall carry out their duties and responsibilities and serve

as an effective grievance Mechanism.

6. No solitary or punitive cell, no hard labour or

dietary change as painful additive, no other punishment or

denial of privileges and amenities, no transfer to other

prisons with penal consequences, shall be imposed without

judicial appraisal of the Sessions Judge and where such

intimation, on account of emergency, is difficult, such

information shall be given within two days of the action.

Conclusion

What we have stated and directed constitute the

mandatory part of the judgment and shall be complied with by

the State. But implicit in the discussion and conclusions

are certain directives for which we do not fix any specific

time limit except to indicate the urgency of their

implementation. We may spell out four such quasi-mandates.

1. The State shall take early steps to prepare in

Hindi, a Prisoner's Handbook and circulate copies to bring

legal awareness home to the k inmates. Periodical jail

bulletins stating how improvements and habilitative

programmes are brought into the prison may create a fellow-

ship which Will ease tensions. A prisoners' wall paper,

which will freely ventilate grievances will also reduce

stress. All these are implementary of s. 61 of the Prisons

Act.

2. The Slate shall take steps to keep up to the

Standard Minimum Rules for Treatment of Prisoners

recommended by the United Nations, especially those relating

to work and wages, treatment with dignity community contact

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and correctional strategies. In this latter aspect, the

observations we have made of holistic development of

personality shall be kept in view.

3. The Prisons Act needs rehabilitation and the Prison

Manual total overhaul, even the Model Manual being out of

focus with healing goals. A correctional-cum orientation

course is necessitous for the prison staff inculcating the

constitutional values, therapeutic approaches and tension-

free management.

602

4. The prisoners' rights shall be protected by the

court by its writ jurisdiction plus contempt power. To make

this jurisdiction viable, free legal services to the

prisoner programmes shall be promoted by professional

organisations recognised by the Court such as for e.g. Free

Legal Aid (Supreme Court) Society. The District Bar shall,

we re-commend, keep a cell for prisoner relief

In this connection, it is heartening to note that the

Delhi University, Faculty of Law, has a scheme of free legal

assistance even to prisoners.

The Declaration on the Protection of All Persons from

Torture and other cruel, Inhuman or Degrading Treatment or

Punishment adopted by U. N. General Assembly (Resolution

3452 of 9 December 1975) has relevance to our decision. In

particular-

Article 8.-Any person who alleges that he has been

subjected to torture or other cruel, inhuman or

degrading treatment or punishment by or at the

instigation of a public official shall have the right

to complain to, and to have his case impartially

examined by, the competent authorities of the State

concerned.

Article 9.-Wherever there is reasonable ground to

believe that an act of torture as defined in article I

has been committed, the competent authorities of the

State concerned shall promptly proceed to an impartial

investigation even if there has been no formal

complaint.

Dr. Chitale has handed up to us an American Civil Liberties

Union Hand-book on the Rights of Prisoners. It rightly sets

the sights of prison justice thus :

As an institution, our penal and "correctional"

system is an abject failure. The conditions in

America's jails and prisons virtually ensure

psychological impairment and physical deterioration for

thousands of men and women each year. Reformation and

rehabilitation is the rhetoric; systematic

dehumanization is the reality. Public attention is

directed

603

only sporadically toward the subhuman conditions that

prevail in these institutions, and usually only because the

prisoners themselves have risked many more years in

confinement, and in some cases even their lives, to

dramatize their situation by protest.

The 'central evil' of prison life, according to this

handbook, is "the unreviewed administrative discretion

granted to the poorly trained personnel who deal directly

with prisoners. Moreover, even those rights which are now

guaranteed by the courts are often illusory for many

prisoners. Implementation and enforcement of these rights

rest primarily in the hands of prison officials. Litigation

is costly and time- consuming, and few lawyers have

volunteered their service in this area. Thus even those

minimal rights which appear on paper are often in reality

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denied. " We conclude with the hope that the State, though

preoccupied with many pressing problems, will discharge its

constitutional obligation to the invisible mortals

incarcerated by it and legislatively and administratively

re-make a Prison Code adhering to the high values of the

Preamble. Over a hundred years ago (1870)-

" .... some American prison administrators

assembled to discuss their common problems and founded

what is now the American Correctional Association. At

the very first meeting, these remarkable men set down a

justly famous 'Statement of Twenty-two Principles."

Among the twenty-two were these:

"Reformation, not vindictive suffering, should be

the purpose of the penal treatment of prisoners. The

prisoner should be made to realize that his destiny is

in his own hands:

Prison discipline should be such as to gain the

will of the prisoner and conserve his self-respect:

The aim of the prison should be to make

industrious free men rather than orderly and obedient

prisoners.

This quote from the well-known work "The Crime of

Punishment" extracted by George Ellis in his book "Inside

Folsom Prison: Trans-

604

cendental mediation and TM-Sidhi Program" is notable as a

practicable project which will reduce the number of

prisoners by raising the nature of prisoners.

In the package of benign changes needed in our prisons

with a view to reduce tensions and raise the pace of

rehabilitation, we have referred to acclimatization of the

community life and elimination of sex vice vis a vis

prisoner we have also referred to the unscientific mixing up

in practice of under-trials, young offenders and long-term

convicts. This point deserves serious attention. A recent

book "Rape in Prison" states :

"One of the most horrendous aspects of a jail

sentence is the fact that not only are the young housed

with the older offenders, but those awaiting trial

share the same quarters as convicted inmates. The

latter individuals have little to lose in seeking

sexual gratification through assault, for they have to

serve their time any way .. As matters now stand, sex

is unquestionable the most pertinent issue to the

inmates' life behind bars. . . There is a great need to

utilize the furlough system in corrections. Men with

record showing good behaviour should be released for

week ends at home with their Families and relatives.

Farewell to this case is not final so far as the jailor

and the police investigator are concerned. The former will

stand his trial and shall receive justice. We say no more

here. The investigator invites our displeasure and the

Assistant Public Prosecutor, whom he consulted, makes us

unhappy since we have had a perusal of the case diary. The

crime alleged is simple, the material relied on is short and

yet, despite repeated observations from the Bench the

investigator has delayed dawdily the completion of the

collection of evidence and the laying of the charge-sheet.

The prisoner who is the victim has been repeatedly

questioned under different surroundings and divergent

statements are recorded. We do not wish to state what we

consider to be the obvious inference, but we are taken aback

when the Assistant Public Prosecutor has given an opinion

which, if we make presumption in his favour,

605

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shows indifferences and, if we make contrary inferences,

makes us suspect. When offences are alleged to have taken

place within the prison, there should be no tinge or trace

of departmental collusion or league between the police and

the prison staff. We make these minimal observations so that

the State may be alerted for appropriate action. Surely, The

conduct of the prosecution cannot be entrusted to one who

has condemned it in advance. B

We allow the petition and direct a writ to issue,

including the six mandates and further order that a copy of

it be sent for suitable action to the Ministry of Home

Affairs and to all the State Governments since Prison

Justice has pervasive relevance. C

PATHAK, J.-I have read the judgment prepared by my

learned brother. For my part, I think it sufficient to

endorse the following finding and direction detailed towards

the end of the judgment:

(1) The prisoner, Prem Chand, has been tortured

while in custody in the Tihar Jail. As a

criminal case is in the offing or may be

pending, it is not necessary in this

proceeding to decide who is the person

responsible for inflicting the torture.

(2) The Superintendent of the Jail is directed to

ensure that no punishment or personal

violence is inflicted on Prem Chand by reason

of the complaint made in regard to the

torture visited on him.

Besides this, I am in general agreement with my learned

brother on the pressing need for prison reform and the

expeditious provision for adequate facilities enabling the

prisoners, not only to be acquainted with their legal

rights, but also to enable them to record their complaints

and grievances, and to have confidential interviews

periodically with lawyers nominated for the purpose by the

District Magistrate or the Court having jurisdiction

subject, of course, to considerations of prison discipline

and security. It is imperative that District Magistrate,,

and Sessions Judges should visit the prisons in their

jurisdiction and afford effective opportunity to the

prisoners for ventilating their grievances and, where the

matter lies within their powers, to make expeditious enquiry

therein and take suitable remedial action. It is also

necessary

606

that the Sessions Judge should be informed by the jail

authorities of any punitive action taken against a prisoner

within two days of such action. A statement by the Sessions

Judge in regard to his visits, enquiries made and action

taken thereon shall be submitted periodically to the High

Court to acquaint it with the conditions prevailing in the

prisons within the jurisdiction of the High Court.

N.V.K. Petition allowed

607