The Uttarakhand High Court recently comprising of a bench of Chief Justice Raghavendra Singh Chauhan and Justice Alok Kumar Verma in an judgment related to the rights of prisoners, held that police personnel cannot be appointed as jail superintendents. (Sanjeev Kumar Akash v. State of Uttarakhand & Ors.)
The division bench said that we have come to the age of “prisoners of reform and rehabilitation”.
It is believed that the purpose of the police is very different from that of the jail superintendents and as a natural corollary, their training and psyche are different. Therefore, the former cannot have the status of the latter.
“The motive of the police is not to reform or rehabilitate, but to prevent the occurrence of crime, and to punish the wrongdoer. Therefore, much training of police personnel is done keeping in mind a different purpose, and different from that prescribed by law. Thus, there is a big difference in philosophy that allows police administration and prison administration.”
Facts of the case
An order was passed on 12.02.21 by the Secretary of Home Department, giving additional charge of Senior Superintendent and Superintendent of Jail in various places to the Officers of Police Department. The Inspector General of Prisons as a result, ordered the transfer of officers to various prisons. The petitioner filed a Public Interest Litigation challenging the order passed by the Secretary and the Inspector General.
Contention of the Parties
Learned Senior Counsel for the Petitioner contended that the duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.
Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, on the corollary contented that the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which is lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent of Jail, the State is justified in making Police Officers in charge of these two posts on a temporary basis.
Courts Observation & judgment
Recommendation for reforms
- All India Jail Committee, 1920: The committee recommended different trainings to be provided for different staffs required for the proper working of the prison system.
- Dr. WC Reckless (UN Expert on Correctional Work): He emphasized on the Reformative theory of punishment and to have proper training of personnel in charge of prisons.
- Working Group on Prisons, 1972: The group emphasised on the requirement of having proper training of personnel of prison administration.
- All Indian Committee on Jail Reforms, 1980: The Committee recommended a well organised prison cadre should be implemented with proper training and promotional avenues.
- Finally, in 2009, the Ministry of Home Affairs had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) - All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it made certain recommendations as under:
- Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.
- Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.
- Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.
Nelson Mandela Rules
The Court has also taken note of the United Nations has issued "Standard Minimum Rules for the Treatment of Prisoners", better known as "the Nelson Mandela Rules".
These Rules, inter alia, provide for "careful selection of every grade of the personnel"; "integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends"; appointment of prison personnel "on a full-time basis";
It specifically referred to Rule 75(2) which states that "before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences".
Since India is a member of the United Nations, these Rules are equally binding on the country and they cannot be ignored, observed the Court.
Uttar Pradesh Jail Service Rules, 1982
Lastly, the Bench referred to the abovesaid Rules, which clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post in prisons.
It held, "A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal."
The Bench proceeded to reject the argument made by the State Government that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre.
It held, "It is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail."
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