Sunil Batra Vs. Delhi Administration [1979] INSC 269 (20 December 1979)

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 themselves about the surrounding circumstances and the scenario of events.

The amicus curiae after visiting the jail and examining witnesses reported that the prisoner sustained serious anal injury because a rod was driven into that aperture to inflict inhuman torture and that as the bleeding had not stopped, he was removed to the jail hospital and later to the Irvin Hospital. It was also reported that the prisoner's explanation for the anal rupture was an unfulfilled demand of the warder for money, and that attempts were made by the departmental officers to hush up the crime by overawing the prisoner and the jail doctor and offering a story that the injury was either due to a fall of self-inflication or due to piles.

Allowing the writ petition.

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

1. (a) Prem Chand the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party.

Lack of vigilance is limited guilt. The primary guilt cannot be fixed because a criminal case is pending or is in the offing. The State shall take action against the investigating police for collusive dilatoriness and deviousness.[599 F] 558 (b) The Superintendent is directed to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person in vindictive spirit. [599 H] (c) Lawyers nominated by the District Magistrate, Sessions Judge, High Court or the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned courts, results which have relevance to legal grievances. [600 A-B] (d) Within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be afforded to all prisoners. [600 C] (e) District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action. [600 D] (f) No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, an account of emergency is difficult such information shall be given within two days of the action.

[601 B-C]

2. In our era of human rights' consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability.

[563 E]

3. Protection of the prisoner within his rights is part of the office of Article 32. [564 C]

4. It behoves the court to insist that, in the eye of law, prisoners are persons not animals, and to punish the deviant 'guardians' of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials 'dressed in a little, brief authority'. when Part III is invoked by a convict. When a prisoner is traumatized, the Constitution suffers a shock. [564 D-E]

5. The courts in America have, through the decisional process, brought the rule of law into the prison system pushing back, pro-tanto, the 'hands-off' doctrine. The content of our constitutional liberties being no less, the dynamics of habeas writs there developed help the judicial process here. The full potential of Arts. 21, 19 & 14 after Maneka Gandhi has been unfolded by this Court in Hoskot and Batra. Today, human rights jurisprudence in India has a constitutional status and sweep. [573 A, 574 D]

6. Rulings of this Court have highlighted the fact that the framers of the Constitution have freed the powers under Art. 32 from the rigid restraints of 559 the traditional English writs. Flexible directives, even affirmative action moulded to grant relief, may realistically be issued and fall within its fertile width.

[575 F] Dwarkanath v. income Tax officer [1965] 3 SCR 536 referred to.

7. Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve, the Court will be a functional futility as a constitutional instrumentality if it does not go into action until the wrong is righted.

The Court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. The court can issue writs to meet the new challenges. [576 D]

8. Affirmed in unmistakables terms that the court has jurisdiction under Art. 32 and so too under Art. 226, a clear power and, therefore, a public duty to give relief to sentence in prison setting. [576 F]

9. In Sunil Batra v. Delhi Administration (1978) 4 SCC 409 this Court rejected the 'hands-off' doctrine and ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our Constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction. [576 H-577 A]

10. Where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. [577 E-F]

11. Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair'. [578 E]

12. A prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the court armed with the Constitution. [578 H] Maneka Gandhi v. Union of India [1979] 1 SCC 248: N. H. Hoskot v. Maharashtra, [1979] 1 SCR 192, referred to.

13. Implicit in the power to deprive the sentence of his personal liberty, the Court has to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law. [579 B-C]

14. The court has power and responsibility to intervene and protect the prisoner against mayhem, crude or subtle, and may use habeas corpus for 560 enforcing in-prison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries.

[579 E]

15. Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form. There is therefore need to get ready a Prisoners' Handbook in the regional language and make them freely available to the inmates. To know the law is the first step to be free from fear of unlaw. [582 C] 16(i) The most important right of a prisoner is to integrity of his physical person and mental personality. No prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. [584 D, 583 C] (ii) Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and more dreadful sometimes, transfer to a distant prison where visits or society of friends or relatives may be snapped, allotment of degrading labour, assignment to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgement is an infraction of liberty or life in its wider sense and cannot be sustained unless Art.

21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary under Article 14, if it is dependent on unguided discretion, unreasonable under Art. 19 if it is irremediable and unappealable and unfair under Art. 21 if it violates natural justice. Some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed. [584 F-H, 586 G] (iii) Visit to prisoners by family and friends are a solace in insulation: and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow- men, parents and other family members cannot be denied in the light of Art. 19 and its sweep., [586 H]

17. Prison power, absent judicial watch tower, may tend towards torture. The judges are guardians of prisoners' rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates' personality. [588 D, 590 C]

18. In a democracy, a wrong to some one is a wrong to every one and an unpunished criminal makes society vicariously guilty. [596 D]

19. When offences are alleged to have taken place within the prison, there should be no tinge or trace of departmental collusion or league between the police and the prison staff. [605 A] [Directives for which no specific time limit fixed except the urgency of their implementation:

1(i) The State shall take early steps to prepare in Hindi, a Prisoner's Handbook and circulate copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellowship which will ease tensions.

561 A prisoners' wall paper, which will freely ventilate grievances will also reduce stress. All these are implementary of s. 61 of the Prisons Act. [601 D,E] (ii) The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. [601 F] (iii) The Prisons Act needs rehabilitation and the Prison Manual total over- haul. A correctional-cum- orientation course is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches and tension-free management. [601 H] (iv) The prisoners' rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the court such as for e.g. Free Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep 2 cell for prisoner relief. [602 A] (Per Pathak J. concurring)

1. The prisoner Prem Chand has been tortured while in custody in the Tihar Jail. [605 D]

2. The Superintendent of the jail to ensure that no punishment or personal violence is inflicted on Prem Chand by reason of the complaint made in regard to the torture.

[605 F]

3. Pressing need for prison reform and provision for adequate facilities to prisoners, to enable them not only to be acquainted with their legal riots but also to record their complaints and grievances and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the court having jurisdiction. [605 G]

4. Imperative that District Magistrates and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and where the matter lies within their powers, make expeditious enquiry and take suitable remedial action. [605 H]

5. Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action. [606 A]

6. A statement by the Sessions Judge in regard to his visits, enquiries made and action then thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within its jurisdiction. [606 B]

ORIGINAL JURISDICTION: Writ Petition No. 1009 of 1979.

Under Article 32 of the Constitution.

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

Soli 1. Sorabjee, Solicitor General of India, and R. N. Sachthey for the Respondent.

562 The Judgment of V. R. Krishna Iyer and O. Chinnappa Reddy, JJ. was delivered by Krishna Iyer, J. R. S. Pathak, J. gave a separate opinion.

KRISHNA IYER, J.-This, writ petition originated, epistolary fashion in a letter by a prisoner, Batra, to a Judge of this' Court (one of us), complaining of a brutal assault by a Head Warder on another prisoner, Prem Chand.

Forms were forsaken since freedom was at stake and the letter was posted on the Bench to be metamorphosed into a habeas proceeding and was judicially navigated with electric creativity, thanks to the humanist scholarship of Dr. Y. S. Chitale as amicus Curiae and the erudite passion for affirmative court action of Shri Soli Sorabjee, the learned Solicitor General. Where the prison process is dehumanized, forensic help, undeflected by the negative crudities of the adversary system, makes us dare where we might have daunted.

The finest hour of justice comes when court and counsel constructively collaborate to fashion a relief in the individual case and fathom deeper to cure the institutional pathology which breeds wrongs and defies rights. Here, the individual is a prisoner whose anus was allegedly pierced with a warder's baton and the institution is the Tihar Prison, right in the capital of the country and under the nose of the Home Ministry.

The Perspective This case is revelatory of several sins in this central penitentiary. 'Something is rotten in the State of Denmark !' The constitutionaI imperative which informs our perspective in this habeas corpus proceeding must first be set out. The rule of law meets with its Waterloo when the State's minions become law-breakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost vis a vis human rights in prison situations. When prison trauma prevails, prison justice must invigilate and hence we broaden our 'habeas' jurisdiction. Jurisprudence cannot slumber when the very campuses of punitive justice witness torture.

The petitioner does not seek the release of the prisoner because a life sentence keeps him in confinement.

But the dynamic role of judicial remedies, after Batra's case, imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law live up to its reputation as bastion of liberty even within the secrecy of the hidden cell. Blackstone called it 'the 563 great and efficacious writ in all manner of illegal confinement' and Lord Deman proclaimed in 1839 that it had been 'for ages effectual to an extent never known in any other country'. So long as Batra remains good law, judicial policing of Bastille practices will broaden to embrace the wider range of prison vices. Dr. Chitale drew our attention to American legal literature disclosing the trend while Shri Soli Sorabjee for the Union of India, cited Corwin. Corwin's remarks on American constitutional law, referred to with approval in Batra, has our assent:

Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution overcrowding, understaffing unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eighth Amendment ban on "cruel and unusual punishments." The essence of the matter is that in our era of human rights consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability. We ideologically accept the words of Will Durant(a). "It is time for all good men to come to the aid of their party, whose name is civilization." Likewise, we endorse, as part of our constitutional thought, what the British Government's White Paper, titled 'People in Prison', stated with telling effect:

A society that believes in the worth of individual beings can have the quality of its belief judges, at least in part, by the quality of its prison and probate services and of the resources made available to them.

The learned Solicitor General brought this key-note thought to our notice in the matchless diction of Sir Winston Churchill and briefly referred to in Batra in a speech seventy years ago:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate 564 recognition of the rights of the accused, and even of the convicted criminal, against the State-a constant heart searching by all charged with the duty of punishment a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards the discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.

Truly, this is a perspective-setter and this is also the import of the Preamble and Art 21 as we will presently see.

We are satisfied that protection of the prisoner within his rights is part of the office of Art.

`Prisons are built with stones of law' and so it behoves the court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant 'guardians' of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials 'dressed ill a little, brief authority', when Part III is invoked by a convict. For when a prisoner is traumatized, the Constitution suffers a shock.

And when the Court takes cognizance of such violence and violation, it does, like the. Hound of Heaven, 'But with unhurrying chase, And unperturbed pace, Deliberate speed, and Majestic instancy' follow the official offender and frown down the outlaw adventure.

The Facts What are the facts which have triggered off this judicial action ? The resume of facts, foul on its face, reveals the legal issues raised, brings into focus the basics of prisoner's rights and helps the court forge remedial directives so as to harmonize the expending habeas jurisprudence with dawning horizons of human rights and enlightened measures of prison discipline. Batra, a convict under death sentence lodged in the Tihar Central Jail, came to know of a crime of torture practised upon another prisoner, Prem Chand, allegedly by a jail warder, Maggar Singh, as a means to extract money from the victim through his visiting relations. Batra braved the consequences of Jail indignation 565 and brought the incident to the ken of the Court, resulting in these proceedings which, though not strictly traditional, are clearly in the nature of habeas corpus writs and therefore, within the wider sweep of Art. 32. The court issued notice to the State and the concerned officials, appointed Dr. Y. S. Chitale and Shri Mukul Mudgal as amicus, authorised them to visit the prison, meet the prisoner and see relevant documents and interview necessary witnesses so as to enable them to inform themselves about the surrounding circumstances and the cruel scenario of events. Counsel on both sides have sensitized the issue of prison justice admirably and catalysed the cause of jail reforms effectively. The democratic hope of the procession is its 'people's orientation, not its lucrative potential nor its intellectual intricacies. And service in the field of the handicapped human sectors, like prisoners, is a social justice contribution. The enthusiastic work done in the case by the young lawyer, Shri Mudgal, assisting Dr. Chitale, deserves our commendation, even as the unreserved support rendered to the Court by Shri Sachthey is in the good tradition of the Bar.

Back to the facts. One Central episode round which the skein of further facts is wound is beyond doubt, viz. that Prem Chand, the prisoner, sustained serious anal injury on or about August 26, 1979, because a rod was driven into that sore aperture to inflict inhuman torture. The contemporaneous entry in the Jail Hospital register reads:

One prisoner Prem Chand s/o Pyara Lal has developed tear of anus due to forced insertion of stick by someone,. He require surgical repair and his bleeding has not stopped. He is to go to Irwin Hospital casualty immediately.

Remarks of Superintendent. Noted 27 August, 79 sd D.S. 1.2.35 p.m.

Sd/-

(DR. KAPOOR) 2.00 p.m.

The prisoner's later narration to the doctor in the Irwin Hospital corroborates the case. The unsuccessful and unworthy attempts, presumably by overawing the prisoner and even the doctor, and other dubious devices. which we do not now scan, to do away with this G. primary incriminating factor by offering incredible alternatives like rupture of the anus by a fall or self-infliction or due to piles and sillier stories, only show how the subtle torture of the officials could extract falsehoods from the victim and even medical officers, exclupatory of the, official criminal whoever he be. There are some traces of attempts to hush up the crime where the higher officers have not been that innocent. We are taken aback that the tardy police investigation, 566 with its lethargic pace and collusive ways, has hardly done credit to the Police Department's integrity, a fact that the Government will take note of, without institutional sheltering of police delinquents. Imagine a police investigator, hunting for contradictions obviously to absolve the head warder by interrogating Dr. Kapoor who had made an entry in the hospital register and told Dr. Chitale that the prisoner had an anal rupture which could not be self-inflicted or caused by a fall and was so serious as to require immediate removal to Irwin Hospital, and making him say, long afterwards on 2-10-1979 by delaying the laying of the chargesheet thus:

"A prisoner named Prem Chand s/o Prehlad was produced before me for treatment on the afternoon of Sunday 26th August, 1979. He was brought by some warder.

He was complaining of bleeding from boils on the buttocks. This was also told by the warder who brought him.

He was given the required treatment as he was kept under observation on his request.

Next day during the ward rounds when I examined him, he was having tears of anus and bleeding. On inquiring he told that this has happened due to forced insertion of as stick into his anus.

Then he was referred to Irwin Hospital for further treatment.

V. K Kapoor 2-10-79" Can human nature be such rubber ? More than the probity of the investigation and the veracity of the doctor are at stake-hope in human integrity without which human dignity will be the first casualty.

These observations are not impressionistic but we leave it at that since our primary purpose is to protect the person of the prisoner, not to prosecute the offender. We do nat wish to prejudice that process. Regrettably, the 'hearsay' affidavit of the Under Secretary (Home), Delhi Administration, Shri Nathu Ram, blinks at the jail vices and merely dresses up the official version without so much as an inquisitorial audit of the lurid happenings in a premier correctional institution of the nation. We deplore the indifferent affiants omnibus approval of every official conduct, whereas we should, instead have expected Government, which sincerely swears by human rights and whose political echelons in succession, over the decades, are not strangers to the actualities in these detention campuses to have put 567 aside the tendency to white-wash every action with an official flavour. A Where human rights are at stake prestige has no place.

After the prisoner was subjected to brutal hurt he was removed to the jail hospital and later to the Irwin Hospital but on his re-transfer he was neglected; but we do not pursue the identity of the culprit or the crime or the treatment since a police investigation is under way.

Nevertheless, we cannot but remark that whatever damage might have been done upto now, .. second investigation by a C.B.I. Officer is justified, if truth has been suppressed.

Dr. Chitale pointed out certain poignant facts such as the prisoner himself having been pressured into statements contrary to the case of anal infliction. We do not make comments on them although we are unhappy at the way the business of investigation has been done. Indeed, the potential for oblique mutual help between the police and the prison staff makes Jail offences by jail officials undetectable; and so, to obviate this possibility, the C.B.I. may well be entrusted, as a regular practice, with such cases The prisoner being a person, we cannot write him off.

The alleged offender, Warder Maggar Singh, may be left aside for a while. There are other aspects of the torture which demand deeper probe and panacea. The prisoner's explanation for the anal rupture is stated to be an unfulfilled demand for money, allegedly a general practice.

this shows, if true, that bribery, at the point of barbarity, is a flourishing trade within the house of punishment itself. How stern should the sentence be for such official criminals and how diligent should the State be to stamp out this wicked temptation ! If you want to end prison delinquencies you must abolish the motivations and opportunities.

The counter-case, if we may so call it, of the Warder as disclosed in the Superintendents report, is equally disturbing, if true:

On 25-8-79 evening life prisoner Prem Chand S/o Sh. Prahlad was produced before the Deputy Superintendent for talking Mandrix tablets. As he was in state of intoxication because of taking Mandrix tablets which he admitted before the Deputy Superintendent, he was kept in a cell pending orders of the Superintendent. Central Jail. He was taken to the jail hospital the next day i.e. On 26-8-79 on a report from the above said prisoner as he had pain in his anus and was bleeding. The prisoner remained admitted into the jail hospital upto 27-8-79, 2 p.m. when the Dr. V.

K. Kapoor, Medical officer, recommended for the shifting of this prisoner to the Irwin Hospital with the report mentioned in the petition.

568 The prisoner Prem Chand was shifted accordingly by Shri Bachan Singh, Assistant Superintendent on duty on 27-8- 79. The undersigned was informed that a case u/s 385 IPC (Indian Penal code, 1860) had been registered against warder Maggar Singh in- charge of the ward No. 11 i.e. 40 cells with the police station Janak puri and investigation had started in this case. The result of the investigation is still awaited. The prisoner was, however, received back in the jail on 29-8-79 on being discharged from the Irwin Hospital.

The prisoner, Prem Chand, was kept in a 'punishment cell' which, according to counsel for the Administration, was not as bad as a solitary cell, although Dr. Chitale says that this was similar to the type of insulated confinement condemned as unconstitutional be this Court in Sunil Batra's case (supra). Coming to the competing version put for ward by the prison officials through the counter-affidavit of the Under Secretary, the story, even if true, is strongly suggestive of a mafia-culture prevasive in the Tihar prison.

A background of the ethos of the campus may be gleaned from portions of the report of the Superintendent, Central Jail, Tihar, made by him with reference to the alleged torture which is the subject matter of this case.

A number of prisoners in the Tihar Jail are habitual offenders, professional criminals who have been inmates of the jail from time to time. A number of the said prisoners are rarely visited by their relatives due to the fact that they do not want to associate with such persons. It has been seen that such prisoners are mainly visited by other professionals or habitual offenders in the field with whom they have had former associations.... It has been noticed these types of prisoners have been able to develop a certain report with some of the lower staff in the jail namely Head Warders, Warders etc. and obtain certain facilities illegally including smuggling of numbers of items, i.e. drugs etc. for their use. It may also be submitted that to check smuggling of narcotic drugs against prisoners who indulge in such activities 30 cases of narcotic offences were get registered against the prisoners with the Janakpuri Police Station during this year.... That 95 prisoners were transferred from the jail to Haryana due to administrative reasons which include indiscipline and violation of jail regulations by them and otherwise derogatory behaviour during the last year. This year also about 22 case have been recommended by Superintendent, Jail for transfer ....

In para 568(b) and the note thereunder of the 569 Jail Manual, the habituals are required to be kept separate from the casual prisoners but due to non- availability, of any other jail in Delhi they are being kept in Tihar Jail, which requires a lot or vigilance on the part of the jail officers. (b) It may also be mentioned that due to paucity of accommodation, the said jail is occupied by double the number of prisoners than it is otherwise authorised.

To aggravate the malady, we have the fact that a substantial number of the prisoners are under-trials who have to face their case in court and are presumably innocent until convicted. By being sent to Tihar Jail they are, by contamination, made criminals-a custodial perversity which violates the test of reasonableness in Art. 19 and of fairness in Art. 21. How cruel would it be if one went to a hospital for a checkup and by being kept along with contagious cases came home with a new disease ! We sound the tocsin that prison reform is not a constitutional compulsion and its neglect may lead to drastic court action.

It would appear that around 300 persons are taken in and out daily between the prison and the courts. And when there are political agitations. and consequent police arrests and remand to custody, the under-trial strength swells in numbers. Since many officers busy themselves with production of prisoners in court, the case of the Superintendent is that the other prisoners "try to do mischief, make thefts of other prisoners who go on work, smuggle things and even resort to assaults." To sum up, the Tihar prison is an arena of tension ,trauma, tantrums and crimes of violence, vulgarity and corruption. And to cap it all, there occurs the contamination of pre-trial accused with habituals and "injurious prisoners of international gang." The crowning piece is that the jail officials themselves are allegedly in league with the criminals in the cells. That is, there is a large network of criminals, officials and non-officials in the house of correction ! Drug racket, alcoholism, smuggling, violence, theft, unconstitutional punishment by way of solitary cellular life and transfers to other jails are not uncommon. The Administration, if it does not immediately have the horrendous situation examined by an impartial, authoritative body, and sanitize the campus, complacent affidavits of Under Secretaries and glittering entries from dignitaries on their casual visits, cannot help.

While the Establishment sought to produce before the Court extracts from the Visitors' Book to show that many impartial and distinguished persons had complimented the jail authorities on the way managed the prison, Dr. Chitale placed before us some internal evidence 570 from the materials on record, supplemented strongly by personal observations recorded while he was an internee in this very prison by Shri Kuldip Nayar, a responsible journalist with no apparent motive for mendacity nor inclination for subjectivity, in his book "In Jail". There was nothing in the author's view which money could not buy within the recesses of the prison campus. Giving a factual narrative, Shri Nayar wrote:................................

' ....... one could get as much money as one wanted from outside-again at a price. There was a money order and mail service that perhaps was more dependable than what the postal department could offer.

For instance, when a prisoner in my ward wanted two hundred rupees, he sent a note through a warder to his people in old Delhi and in less than twenty-four hours he had the money. He paid sixty-six rupees as collecting charges-thirty-three per cent was the prescribed "money order charge." .. ....Dharma Teja, the shipping magnate who served his sentence in Tihar, for instance, has thousands of rupees delivered to him, we were told. And if one could pay the jail functionaries one could have all the comforts one sought. Teja had all the comforts-he had an air cooler in his cell a radio-cum-record player set and even the facility of of using the phone.... Haridas Mundhra, a businessman who was convicted of fraud, was another rich man who spent some time in Tihar. Not only did he have all. the facilities, but he could also go out of the jail whenever he liked; at times he would be out for several days and travel even upto Calcutta. All this of course, cost a lot of money. An even richer prisoner was Ram Kishan Dalmia, he spent most of his jail term in hospital. He was known for his generosity to jail authorities, and one doctor received a car as a gift.

But more than businessmen it was the smugglers jailed in Tihar who were lavish spenders. Their food came from Moti Mahal and their whisky from Connaught Place. They had not only wine but also women "Babuji, not tarts but real society girls," one warder said. The women would be brought in when "the Sahiblog" went home for lunch, and their empty offices became "recreation rooms." Corruption in jail was so well organised and so systematic that everything, went like clockwork once the price had been paid. Jail employees at almost all levels were involved, and everyone's share was fixed. There was never a dispute; there has to be the proverbial honour among thieves.' 571 One wonders whether such an indictment made by an established A writer had inclined the Government at least to appoint an Inquiry Commission to acquaint itself with the criminal life-style of correctional institutions. The higher officials also have their finger in the pie, if Nayar were veracious:

'Perhaps the way almost everyone had his cut was most evident in our milk supply. It came in bulk to the main gate (phatak) there, enough milk for the top officials was taken out of the cans, which were then topped up with water. And as the cans moved to the wards, all those who handled hem appropriated their share, again topping up with water.

Even more shocking than the corruption was the ingenious "slave system" we found in the jail. The slaves were buys between ten and eighteen employed as 'helpers", and there were scores of them. They cooked, washed utensils, cleaned rooms, fetched water and did much back breaking labour to "help" the men who were paid to do these chores. They would be woken up before 6 a.m. to prepare the morning tea and would be allowed to sleep around 10 p.m. after scrubbing the pots and pans-they were herded into a ward which had no fan and no proper sanitary facilities, but was always well lit, with many bulbs on all night, to enable a sleepy warder to check at a glance that they were all there.

These boys were undertrial prisoners, many had been there for eight months and at least one had been there for two years. They were taken from one court to another to be tried under one charge or another and kept in jail all the while. The aim was to keep them in as long as possible, for without them the people employed to do the menial duties would have no time to relax.

one morning I was woken up by the sobbing of a boy, and found some other "helpers" trying to console him while a warder stood by quite unmoved. I went up to him; his curly hair reminded me of Raju, my younger son. The boy had been picked up the previous evening from Defence Colony in New Delhi, kept in a police lock-up for the night and brought to jail in the morning.' The crime of punishment is a new crime which the rule of law must reach at, but what is touching beyond tears, even if there be but a title of truth in the statement "In Jail," is about children being lapped 572 up and locked up for use as bonded labour in punitive houses of justice. The modus operandi is sensitively set down by Kuldip Nayar:

The warder explained that whenever the number of prisoners in jail went up, the police were asked to bring in boys to help with the chores. For the past several days, the warder said, jail authorities had been pestering the police to get more helpers as the number of detenus had gone up. The evening before, when the boy was buying paan (betel leaf) from a Defence Colony shop, the police had hauled him up as a vagabond; they were responding to the jail authorities' appeal to book more helpers.

"This is nothing new, it has always been like this," the warder explained. Several undertrial boys later related to me their tales of woe, how they were arrested on trumped up charges and how they were being held in detention on one pretext or another.

We may, at this stage, go in greater detail into the functional expansion of habeas corpus writs in the current milieu especially because counsel on both sides have compellingly contended for an authoritative pronouncement by this court in favour of a broader jurisdiction.

We have earlier noticed that this valuable writ is capable of multiple uses as developed in the American Jurisdiction. Such is the view expressed by many legal writers. In Harvard Civil Rights and Civil Liberties Law Review, the view has been expressed that beyond the conventional blinkers, courts have been to examine the manner in which an inmate is held or treated during the currency of his sentence. Similar is the thinking expressed by other writers, R. J. Sherpa in "The Law of Habeas Corpus" (1976) Edn. Juvenal, Satires in 72 Yale Law Journal 506 (1963). In American Jurisprudence there is a pregnant observation:

The writ is not and never has been a static, narrow formalistic remedy. Its scope has grown to achieve its purpose-the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty.

573 Corpus Juris, 2d, Vol. 39, page 274, para 7 strikes a similar note, away from the traditional strain. The courts in America have, through the decisional process, brought the rule of law into the prison system pushing back, protanto, the hands-off doctrine. In the leading case of Coffin v.

Richard the Court of Appeal observed, delineating the ambit and uses of the writ of habeas corpus:

The Government has the absolute right to hold prisoners for offences against it but it also has the correlative duty to protect them against assault or injury from any quarter . while so held. A prisoner is entitled to the writ of habeas corpus, when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits.

When a man possesses a substantial right, the court will be diligent in finding a way to protect it.

The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights....The judge is not limited to a simple remand or discharge of the prisoner's civil rights be respected......

It is significant that the United State Supreme Court has even considered as suitable for habeas relief, censorship of prisoners' mail and the ban on the use of law students to conduct interviews with prison inmates in matters of legal relief. In Procunier v. Martinez these two questions fell for decision and the court exercised jurisdiction even in such an internal matter. In Johnson v. Avery a disciplinary action was challenged by a prisoner through a writ of habeas corpus. This indicates the extension of the nature of the writ in the American jurisdiction. Incidentally and interestingly, there is reference to some States in the United States experimenting with programmes of allowing senior law students to service the penitentiaries. At a later stage, when we concretise definite directives, we may have occasion to refer to the use of senior law students for rendering legal aid to prisoners; and so it is worthwhile extracting a passage from Johnson v. Avery (supra) with reference to the Kansas Law School Programme in Prisons at Leavenworth:

The experience at Leavenworth has shown that there have been very few attacks upon the (prison) administra- :

574 tion; that prospective frivolous litigation has been screened out and that where the law school felt the prisoner had a good cause of action relief was granted in a great percentage of cases. A large part of the activity was disposing of long outstanding detainers lodged against the inmates. In addition, the programme handles civil matters such as domestic relations problems and compensation claims. Even where there has been no tangible success, the fact that the inmate had someone on the outside listen to him and analyse his problems had a most beneficial effect. We think that these programmes have been beneficial not only to the inmates but to the students, the staff and the courts.

Incidentally, the presence of law students at the elbow of the prisoner has a preventive effect on ward and warden.

The content of our constitutional liberties being no less, the dynamics of habeas writs they developed help the judicial process here. Indeed. the full potential of Arts.

21, 19, 14, after Maneka Gandhi (supra), has been unfolded by this Court in Hoskot and Batra. Today, human rights jurisprudence in India has a constitutional status and sweep, thanks to Art. 21 so that this Magna Carta may well toll the knell of human bondage beyond civilised limits.

The supplementary statement of the Superintendent of the Central Jail (partly quoted earlier) hair-raising when we find that far from rehabilitation, intensification of criminality is happening there and the officials are part of this sub-culture. We, certainly do not wish to generalise but do mean to highlight the facts of life behind the high walls as demanding constitutional and administrative attention. Homage to human rights, if it springs from the heart, calls for action. Prisons, prison staff and prisoners-all three are in need of reformation. And this milieu apparently is not unique to Tihar but common to many penal institutions.

It is refreshing and heartening that the learned Solicitor General widened our vista and argued that this court, having been seized of the problem of prisoners' fundamental freedoms and their traumatic abridgement, should give guide-lines in this uncharted area, design procedures and device mechanisms which will go into effective action when the restricted yet real rights of prisoners are overtly or covertly invaded. The jurisdiction of this court to remedy the violations of prisoners' residuary rights was discussed at the bar, as also the package of plausible measures which may appropriately be issued to ensure the functional success of justice when rights are infringed by officials or fellow-prisoners. Both sides appreciated the gravity of the jail situation, the sensitivity of security considerations, the virginity of this 575 field of law and the necessity for normative rules and operative monitoring within the framework of judicial remedies. This constructive stance of counsel unusual in litigative negativity, facilitated our resolution of the problems of jail justice, despite the touch of jurisprudential novelty and call to judicial creativity.

We must formulate the points argued before we proceed to state our reasoning and record our conclusions.

1. Has the court jurisdiction to consider prisoners' grievance, not demanding release but, within the incarceratory circumstances, complaining of ill-treatment and curtailment short of illegal detention? Yes. We have answered it.

2. What are the broad contours of the fundamental rights, especially Arts. 14, 19 and 21 which belong to a detainee sentenced by Court? Here too, the ground has been covered.

3. What judicial remedies can be granted to prevent and punish their breach and to provide access to prison justice?

4. What practicable prescriptions and proscriptions bearing on prison practices can be drawn up by the court consistently with the existing provisions of the Prisons Act and Rules bent to shape to con form to Part III ?

5. What prison reform perspectives and strategies should be adopted to strengthen, in the long run, the constitutional mandates and human rights imperatives? The canvas was spread wide by counsel and court and we deal with the arguments within the larger spread-out of the case. Rulings of this court have highlighted the fact that the framers of our Constitution have freed the powers under Art. 32 from the rigid restraints of the traditional English writs. Flexible directives, even affirmative action moulded to grant relief may realistically be issued and fall within its fertile width. The jurisdictional dimension is lucently laid down by Subba Rao, J. in Dwarkanath case:

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found.

The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the 576 expression "nature" for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.

Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve, this court will be a functional futility as a constitutional instrumentality if its guns do not go into action until the wrong is righted. The court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. We hold that the court can issue writs to meet the new challenges. Lord Scarman's similar admonition, in his English Law-The New Dimensions, is an encouraging omen. The objection, if any, is absolute because in a prison situation, a Constitution Bench of this Court (Batra and Sobraj) did imprison the powers of prison officials to put an under-trial under iron fetters or confine in solitary cells convicts with death sentences under appeal.

Once jurisdiction is granted-and we affirm in unmistakable terms that the court has, under Art. 32 and so too under Art. 226, a clear power and, therefore, a public duty to give relief to sentences in prison settings-the next question is the jurisprudential backing for the play of that jurisdiction. Here again, Batra has blazed the trail, and it binds.

Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognises rights of prisoners in the International Covenant of Prisoners' Rights to which our country has signed assent. In Batra's case, this Court has rejected the hands-off doctrine and it has been ruled that fundamental n lights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our constitutional 577 culture has now crystalized in favour of prison justice and judicial jurisdiction.

The jurisdictional reach and range of this court's writ to hold prison caprice and cruelty in constitutional leash is in contentable, but teasing intrusion into administrative discretion is legal anathema absent breaches of constitutional rights or prescribed procedures.

The U.S. Supreme Court, in like situations, has spoken firmly and 'humanistically, and these observations have the tacit approval of our Court in Batra's case. Justice Douglas put it thus.

Prisoners are still 'persons' entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process.

Justice Marshal strongly seconded the view:

I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from-imposition of serious discipline is a 'liberty' entitled to due process protection.

We, therefore, affirm that where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. In a few cases, this validation of judicial invigilation of prisoners' condition has been voiced by this court and finally reinforced by the Constitution Bench in Batra (supra).

The Court need not adopt a "hands off" attitude in regard to the problem of prison administration. It is all the more so because a convict is in prison under the order and direction of the court." Under the caption "Retention of Authority over Prisoner by Sentencing Judge" Krantz notes 578 As noted by Judge Lay in a Judicial Mandate, Trial Magazine (Nov-Dec. 1971) at p. 15:

It should be the responsibility of the court in imposing the sentence to set forth as it would in any equitable decree, the end to be achieved and the specifics necessary to achieve that purpose. If then, we are to have accountability in the execution of the sentence, courts must make clear what is intended in the imposition of the sentence. Every sentence should be couched in terms similar to a mandatory injunction.

In this manner, the penology system is to be held to account if the government does not faithfully execute the order.

In other words, the sentencing court should be required to retain jurisdiction to ensure that the prison system res ponds to the purposes of the sentence. If it does not, the sentencing court could arguably have the authority to demand compliance with the sentence or even order the prisoner released for non-compliance.

Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair'. Bhagwati J. in Maneka Gandhi observed.

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Hoskot applied the rule in Maneka Gandhi (supra) to a prison setting and held that "one component of fair procedure is natural justice". Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the court armed with the Constitution. The weapon is 'habeas', the power is Part III and the projectile is Batra, 579 No iron curtain can be drawn between the prisoner and the Constitution.

It is, therefore, the court's concern, implicit in the power to deprive the sentences of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical R; infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the. sentence the Prison Establishment will be called to order For such adulteration or dilution of Court sentences by executive palliation, if unwarranted by law. One of us, in Batra observed:

Suffice it to say that, so long as judges are invigilators and enforcers of constitutionality and performance auditors of legality, and convicts serve terms in that grim microcosm called prison by the mandate of the courts, a continuing institutional responsibility vests in the system to monitor in the incarceratory process and prevent security 'excesses' Jailors are bound by the rule of law and cannot inflict supplementary sentence under disguises or defeat the primary purposes of imprisonment.

The upshot of this discussion is but this. The Court has power and responsibility to intervene and protect the prisoner against mayhem, crude or subtle, and may use habeas corpus for enforcing imprison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries. We hold these propositions to be self-evident in our constitutional order and is supported by authority, if need be. Therefore, we issue the writ to the Lt. Governor and the Superintendent of the Central Jail that the prisoner, Prem Chand, shall not be subjected to physical manhandling by any jail official, that the shameful and painful torture to which he has been subjected-a blot on Government's claim to protect human rights-shall be ended and the wound on his person given proper medical care and treatment. The Central Government will, we are sure, direct its Jail staff not show too pachydermic a disposition for a democratic government. For example, specific guidelines before punishing a prisoner had been given in Batra's case and yet the prisoner Prem Chand has been lodged in the punishment cell, which is almost the same as a solitary cell, with cavalier disregard for procedural safeguards.

Merely to plead that many prisoners are 'habituals' is no ground for habitual 580 violation of law by officials. We direct that Prem Chand be released from the punishment cell and shall not be subjected to such severity until fair procedure is complied with.

The chronic callousness of the Prison System to- the humane demands of the Constitution, despite the fact that many ministers over many decades in many States have known the unbroken tradition of prison sub-culture and despite prison diaries of national figures from Jawaharlal Nehru to Jay Prakash Narain, has made court and counsel benignly turn the judicial focus on the future so that further mischief may not be suffered in incarceration. There is little doubt that barbarities like bar betters and hand-cuffs were recklessly being practised either on account of ignorant unconscionableness or willful viciousness in several detention camps. Many of the victims are poor, mute, illiterate, desperate and destitute and too distant from the law to be aware of their rights or ask for access to justice, especially when the running tension of the prison and the grisly potential for zoological reprisals stare them in the face. So it is for the court to harken when humanity calls, without waiting for particular petitions. Like class action, class remedies have pro bono value.

The court-the learned Solicitor General underscored this constructive approach-must not wait for a stray petition from some weeping inmate and give the little person a little relief in the little case but give the nation, its governments, prison establishments and correctional departments, needed guidance and also fill with hope the hearts of those who cherish human rights that the courts are, after all, sentinels on the qui vive. Law is what law does and court, if anything, are constitutional in action.

Dr. Chitale, naturally, joined this moving demand. We do think that there are many, drawn from the class of penury, who suffer more privations than their sentences justify.

Ralph Ellison's picture of the American Black has relevance for the prisoner here:

I am an invisible man....I am a man of substance, of flesh and bone, fibre an liquids-and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me .... When they approach me they see only my surroundings, themselves, or figments of their imagination-indeed, everything and anything except me.

The invisibility to which I refer occurs because of a peculiar disposition of the eyes of those with whom I come in contact. A matter of construction of their inner eyes, 581 those eyes with which they look through their physical eyes .. 4 upon reality....You wonder whether you are not simply a phantom in other people's minds....You ache with the need to convince yourself that you do exist in the real world, that you're a part of all the sound and anguish, and you strike out with your fists, you curse and you swear to make them recognise you.

And, alas, it is seldom successful.

In a culture of Antyodaya, the court must rescue the weakest by preemptive guidance without driving parties to post facto litigation. In law as in medicine, prevention is better than cure, a rule jurisprudents have not sufficiently developed, and so we accede to the request of counsel and proceed to discuss the normative side of prison justice. C Before we begin this chapter we might as well set down what the learned Solicitor General stressed viz. that the detailed guidelines set out in the separate opinion in Batra's case (page 488 to 493) are the same as are implicit in the judgment of Desai J. speaking for the other Judges and this position should be re-emphasised by this court here so as to avoid misconception. Desai J. has stated Justice Krishna Iyer has delivered an elaborate judgment which deals with important issues r