Full Judgment Text
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PETITIONER:
SHRI RAMA MURTHY
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT: 23/12/1996
BENCH:
KULDIP SINGH, B.L. HANSARIA, S.B. MAJMUDAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
HANSARIA J.
This writ petition has its origin in a letter dated
12.4.1984 by a prisoner of Central Jail, Bangalore (one Rama
Murthy) to the Hon’ble Chief Justice of this Court making
grievance about some jail matters. The letter was ordered to
be treated as a writ petition and court proceedings followed
which are being wound up by delivering this judgment.
2. The epistolatory power had been invoked earlier also in
a similar matter when Sunil Batra had written a letter to a
Hon’ble Judge of this Court from Tihar Jail, Delhi. The
judgments in his cases and that of Charles Sobraj are such
which can be said to be beacon lights insofar as management
of jails and rights of prisoners are concerned. This Court
in these judgments [(1) Charles Sobraj v. Superintendent
Central Jail, Tihar, AIR 1978 SC 1514 (# 1979 (1) SCR 512):
(2) Sunil Batra (1) v. Delhi Administration and Ors., AIR
1978 SC 1675 (#1979 (1) SCR 392); and (3) Sunil Batra (II)
v. Delhi Administration, AIR 1980 SC 1579 (#1980 (2) SCR
557)], on being approached either through formal writ
petitions or by addressing letters, which was treated as a
writ petitions, had laid bare the constitutional dimension
and rights available to a person behind stone wails and iron
bars.
3. These are not the only decisions on the question of
rights of prisoners and approach to be adopted while dealing
with them as there are many other renderings of this Court
which deal with some other aspects of prison justice. A
brief resume of earlier decisions would be helpful to tread
the path further. The resume reveals this :-
(1) In State of Maharashtra v. Prabhakar, AIR 1966 SC 424
(#1966 (1) SCR 702) aid of Article 21 was made available
perhaps for the first time to a prisoner while dealing with
the question of his right of reading and writing books while
in jail.
(2) Suresh Chandra vs. State of Gujarat, 1976 (1) SCC 654;
and Krishan Lal v. State of Bihar 1976 (1) SCC 655 saw this
court stating about penological innovation in the shape of
parole to check recividism because of which liberal use of
the same was recommended.
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(3) A challenge was made to the segregation of prisoners in
Bhuvan Mohan Pattnaik v. State of Andhra Pradesh, AIR 1974
SC 2092 (#1975-2 SCR 24) and a three Judge bench stated that
resort to oppressive measures to cub political beliefs (the
prisoner was a Naxalite because of which he was put in a
‘guarantine’ and subjected to inhuman treatment) could not
be permitted. The Court, however, opined that a prisoner
could not complain of installation of high-volt live wire
mechanism on the jail walls to prevent escape from prisons,
as no prisoner had fundamental right to escape from lawful
custody.
(4) In Charles Sobraj it was stated that this Court would
intervene even in prison administration when constitutional
rights or statutory prescriptions are transgressed to the
injury of a poisoner. In that case the complaint was against
incarceratary torture.
(5) Sunil Batra (I) dealt with the question whether
prisoners are entitled to all constitutional rights, apart
from fundamental rights. In that case this Court was called
upon to decide as to when solitary confinement could be
imposed on a prisoner. in Kishor Singh v. State of
Rajasthan, AIR 1981 SC 2625 (#1981 (1) SCC 503) also the
Court dealt with the parameters of solitary confinement.
(6) Prem Shankar v. Delhi Administration, AIR 1980 SC 1535
(#1980 (3) SCR 855); and Kadra Pahadiya v. State of Bihar,
AIR 1981 SC 959 (#1981-3 SCC 671) prohibited putting of
undertrial prisoners in leg-irons.
(7) In Sunil Batra (II) the Court was called upon the deal
with prison vices and the judgment protected the prisoners
from these vices with the shield of Article 21, Krishna
Iyer. J. Stated that "prisons are built with the stones of
law".
(8) A challenge was made to a prison rule which permitted
only one interview in a month with the members of the family
or legal advisor in Francis Coralie v. Union Territory of
Delhi AIR 1981 SC 746(+1981 (8) SCR 516) and the rule was
held violative, inter alia, of Article 21.
(9) In series of cases, to wit, Veena Sethi v. State of
Bihar, AIR 1983 SC 339 (=1982 (2) SCR 583); (ii) Sant Bir v.
State of Bihar, AIR 1982 SC 1470 (= 1982 (3) SCC (31); and
(ii) Sheela Barse v. Union Territory, 1993 (4) SCC 204, this
Court was called upon the decide as to when an insane person
can be detained in a prison. In Sheela Barse it was held
that jailing of non-criminal mentally Pradesh, AIR 1977 SC
1926 (=1978 (1) SCR 153), because in that case reformative
aspect was emphasised by stating that the State has to
rehabilitate rather than avenge. Krishna Iyer, J., speaking
for a two-Judge bench, pointed out that the "sub-culture
that leads to anti-social behaviour has to be countered not
by undue cruelty but by re-culturalisation".
(11) On top of all, there is the undoubted right of speedy
trial of undertrial prisoners, as held in a catena of cases
of this Court, reference to which is not deemed necessary.
Mention may only be made of the further leaves added to this
right. These consist of ordering for release on bail where
trial is protracted. The first decision in this regard is by
a two-Judge bench in Supreme Court Legal Aid Committee
representing Undertrial Prisoners v. Union of India, 1994
(6) SCC 731, wherein the bench was concerned with the
dentention of large number of persons in jail in connection
with various offences under Narcotic Drugs and Psychotropic
Substances Act. 1985. The Court, after noting the stringent
provisions relating to bail as incorporated in that Act,
directed for release of those undertrial prisoners who were
languishing in jail for a period exceeding half of the
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punishment provided in the Act. This decision was cited with
approval by another two-Judge bench in Shaheen Welfare
Association v. Union of ill persons is unconstitutional and
directions were given to stop confinement of such persons.
It would be of some interest to point that in Sheela Barse,
an order was passed to acquaint the Chief Secretaries of
every State with the decision and he was directed to furnish
some information to the Standing Counsel of his State. On
being found that State of Assam had not complied with the
order, this Court appointed Sr. Advocate Shri Gopal
Subramanium as its Commissioner by its order dated 13.5.1994
to have discussion with the Chief Secretary of that State
and to ensure immediate obedience of the orders passed in
that case. Shri Subramanium’s voluminous report dated
15.9.1994 running into 532 pages tells a story too wet for
tears. All concerned were found ignorant of the decision in
Sheela Barse which was rendered in August, 1993; and what is
more, a disturbing nexus between the judiciary, the police
and the administration came to light. This was said to have
led to a most shocking state of affairs negating the very
basis of the existence of human life.
We do hope that by now all the States of the Country
must have acted as per the directions in Sheela Barse.
(10) The judicial work done by this Court on the subject at
hand would not be complete without mentioning what was held
in Mohammad Giasuddin v. State of Andhra India, 1996 (2) SSC
616 in which harsh provisions of TADA were horne in mind and
the bench felt that a pragmatic and just approach was
required to be adopted to release TADA detenues on bail
because of delay in conclusions of trails. The Bench
classified these undertrials in four categories and passed
different orders relating to their release on bail.
More comprehensive view was adopted in two later
decisions - these being (1) RD Upadhyay v. State of Andhra
Pradesh. 1996 (3) SCC 422; and (ii) "Common Cause" v. Union
of India, 1996 (4) SCC 33. The first of these cases dealt
with undertrial prisoners lodged in Tihar jail and
directions were given to release them on bail depending upon
the type of offences alleged against them on the completion
of period mentioned in the judgment. The second case is more
general inasmuch as it dealt with undertrial prisoners
lodged in various jails of the country. The bench directed
for their release on conditions laid down in the order. It
was stated that directions shall be valid in all the States
in Union Territories and would apply not only to pending
cases but also to future cases. The directions were,
however, not made applicable to certain classes of cases
mentioned in the order.
4. The journey which commenced in 1966 has thus, during
the last 30 years, planted many milestones. But it seems
there are vet promises to keep and miles to go before one
can sleep. And how can one sleep with wailinos of prisoners
getting louder and louder which requires a sentinal on the
qui-vive, as this Court is so far as fundamental rights are
concerned, to take not of agony and to lay down what is
required to be done to make prisons match the expectations
of society?
5. Let it be seen how to protect various rights of the
prisoners and how the object of rehabilitation of a prisoner
does not remain will-of-the wisp. We have to be pragmatic
also. Constitutional rights of the prisoners shall have to
be interpreted in such a way that larger public interest
does not suffer while trying to be soft and considerate
towards the prisoners. For this, it has to be seen that more
injury than is necessary is not caused to a prisoner. At the
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same time efforts have to be made to reform him so that when
he comes out of prison he is a better citizen and not a
hardened criminal.
6. Before proceeding to lay down the do’s and dont’s it
would be useful to note what is the general position of
prisons in the country presently. To bring home this, it
would be enough to note what has been mentioned in the 1994-
95 Annual Report of National Human Rights Commission in this
regard at page 13 in para 4.17. The same is as below:-
"The situation in the prisons
visited was varied and complex.
Many, such as Tihar Jail in Delhi
were over-crowded; yet others, like
that open jail in Hyderabad were
under-utilized. Often, within a
single State, conditions varied
from one jail to another in this
respect, pointing to the need for a
more rational State-wide use of
facilities. The Commission saw a
few jails which were notably clean
and where the diet was reasonable
such as the Central Jail in
Vellore. Unfortunately, it saw many
others which are squalid, such as
the newly constructed Central Jail
in Patna. In yet others, the diet
was inferior, and the management
was denounced by the inmates as
brutal and corrupt. In some, care
was being taken to separate
juveniles from others, petty
offenders from hardened criminals.
In others, no such care was being
taken and the atmosphere appeared
to nurture violence and
criminality. In a few, major
efforts were being made to reform
conditions, to generate employment
in a worthwhile and remunerative
way, to encourage education and
restore dignity. In others,
callousness prevailed, prisoners
were seen in shackles, mentally
disturbed inmates - regardless of
whether they were criminal or
otherwise- were incarcerated with
others, with no real effort being
made to rise above the very minimum
required for the meanest survival.
Where prisoners worked, their
remuneration was often a pittance,
offering scant hope of savings
being generated for future
rehabilitation in society. By and
large, the positive experiences
were the exceptions rather than the
rule, dependant more upon the
energy and commitmeent of
individual officials rather than
upon the capacity of the system to
function appropriately on its own."
Facts
7. As alluded, this petition has its origin in a letter
from one Rama Murthy, a prisoner in Central Jail, Bangalore,
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addressed to the Hon’ble Chief Justice of this Court. In the
letter the main grievance was about denial of rightful wages
to the prisoners despite doing hardwork by them in different
sections of the prison. Mention was also made about "non-
eatable food" and "mental and physical torture". On the
matter being taken up judicially, a need was felt, in view
of the denial of the allegations in the objection filed on
behalf of the respondent, that the District Judge,
Bangalore, should visit the Central Jail and should find out
the pattern of payment of wages and also the general
conditions of the prisoners such as residence, sanitation,
food, medicine etc. This order was passed on 26.11.1992
and the District Judge, after seeking time for submitting
report from this Court, did so on 28.4.1993. His report runs
into more than 300 pages (alongwith voluminous annexures),
which shows the earnestness and pains which the District
Judge evinced and took in submitting the report.
8. It would be enough for our purpose to note the various
conclusions arrived at by the District Judge, which have
been incorporated in para 23 of the report reading as below:
"23. Therefore, on the basis of a
through and proper enquiry by me in
the Central prison, Bangalore as
directed by the Hon’ble Supreme
Court, I have reached the following
conclusions:
1. The general condition of the
prisoners is satisfactory. Their
treatment by the Jail Authorities
is also satisfactory.
2. The quality, quantity and timely
supply of food to the prisoners are
satisfactory.
3. The pattern of payment of wages
is as per Annexure -F and it is
being followed properly. The wages
are correctly recorded and paid to
the prisoners as per rules.
4. The residence (the
accommodation) to the prisoners in
the jail are adequate and
satisfactory. But the maintenance
of buildings by the P.W.D.
authorities is hopelessly bad for
want of funds from the Government
according to them.
5. The sanitation is not
satisfactory due to accute scarcity
of water. The jail premises is
normally maintained clean and tidy
with great efforts. But it is
improving since about a month after
opening 3 or 4 borewells.
6. The medical facilities in the
Jail Hospital and supply of
medicines to the prisoners are
satisfactory. Due to overt
population in the jail the two
Doctors and their staff at present
in the jail Hospital are unable to
cope up with the demands but still
there is no slackness or negligence
in their work. for want of Lady
Doctor and women staff in the
hospital the Medical attendance to
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women prisoners is not proper or
satisfactory.
7. Visit of prisoners to their
homes or their places is not prompt
or regular as per rules due to want
of Police Escorts. This has caused
lot of dissatisfaction and
depression among the prisoners.
8. The production of prisoners in
Courts on the dates of hearing in
their cases is not regular or
prompt due to want of Police
Escorts and vehicles. This has
affected the expeditious disposal
of custody cases in Courts. The
prisoners are very much agitated
over this.
9. The production of prisoners in
the Hospitals outside the jail for
examination or treatment by the
experts is not prompt or regular
due to want of Police Escorts.
10. Mental patients in the jail and
the prisoners with serious diseases
requiring treatment outside the
jail are compelled to remain in
jail for want of accommodation in
such hospitals.
11. The place and procedure
followed for interviews between the
prisoners their kith and kin,
friends and visitors is not
satisfactory.
12. Canteen facilities should
improve. The sale of articles in
the Canteen at the price above
market prices to make profit is
causing great hardship to the
prisoners."
9. In view of the above conclusions, the District Judge
made certain recommendations which are contained in para 24
of the report reading as below:
"24. In view of the above
conclusions the following
recommendation are made for
consideration and implementation:
1. P.W.D. Authorities in charge of
the maintenance of the buildings
and the premises of the jail are to
be directed to maintain the
buildings properly as per the
requirement in the jail by getting
necessary funds from the Government
on priority basis. Necessary
instructions may be issued to the
Government in this regard to
provide funds and to accord
permission.
2. Sanitation in the jail premises
requires lot of improvement. P.W.D.
Authorities are to be directed to
repair the existing pipe lines and
the sewerage lines in addition to
providing Electric pumps to the
bore-wells in the jail premises.
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3. The staff in the jail hospital
has to be increased by providing at
least 2 more Doctors preferably who
have specialised in the particular
field where the prisoners may
require their services in special
cases. One Lade Medical Officer, a
Lady Nurse and two lady attendants
for the purpose of attending the
women prisoners. The location of
their office may be provided in the
separate block meant for women
prisoners. If regular posting of
Doctors cannot be made for the
purposes stated above, the services
of the Doctors from other
Government Hospitals in Bangalore
may be secured as a routine
periodically or in case of
emergencies by providing them some
conveyance. It is suggested that
doctors incharged of the Hospital
may visit each barrack at least
once in a week and meet the inmates
to know their health problems and
to treat them in jail Hospital. In
case of emergency as agreed by
them, they may visit the prisoners
whenever their services are
required.
4. The Jail Authorities may be
directed to arrange for the regular
visit of the prisoners to their
homes or their places periodically
as per the rules without insisting
any deposit or security or police
report unless it is inevitable and
in case of emergency like death,
serious illness and other important
festivals, functions arrangements
should be made for their visit
relaxing all the required
formalities. By way of follow up
action, the Jail Authorities may be
instructed to submit the report of
the returns to the prl. City Civil
& Sessions Judge, Bangalore once in
a month in this regard in addition
to special reports as and then it
is necessary or as per the
directions of the prl. City Civil
and Session Judge, Bangalore. For
this purpose the Home Department
has to be requested to spare
sufficient number of police Escorts
and the vehicles as and when it is
required by the Jail Authorities.
If possible as suggested by the
Superintendent of Jail, some fixed
number of escorts may be
permanently posted to work in the
jail to assist the Jail Authorities
in cases of visits due to
emergencies.
5. The Superintendent of the jail
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may be instructed to produce the
UTPs before the Courts in which
their cases are pending on the
dates of hearing fixed by the
Courts regularly and promptly. For
this purpose, the Home Department
of the Government may be requested
to spare sufficient number of
police Escorts and the vehicles as
and when it is required by the Jail
Authorities. The Superintendent of
the Jail has to be instructed to
submit a report in this regard at
least once in a month to the prl.
City Civil & Sessions Judge,
Bangalore compliance of such
instructions.
6. The Superintendent of the jail
should take all the steps to
produce the prisoners to the
Hospitals outside the jail for the
purpose of examination and
treatment whenever necessary as per
the opinion of the Jail Doctors and
for this purpose also, the same
procedure may be followed regarding
police Escort as stated above.
7. All the hospitals under the
control of the Government who are
expected to treat the prisoners
either in the normal cases or in
special cases may be strictly
instructed to treat the prisoners
either as in-patients or otherwise
as per the recommendation of the
jail Doctors and the Superintendent
of the Jail without referring them
back to the jail for treatment,
particularly in case of mental
patients, the NIMHANS authorities
may be requested to treat them as
in-patients till they become normal
without referring them back to the
jail.
8. It is absolutely necessary to
provide proper accommodation with
sufficient space of the interviews
between the prisoners with their
kith and kin, friends and visitors.
The procedure which is being
followed at present also required
to be modified as suggested in the
discussions stated above in para-
20. If possible separate portions
may be made in the accommodation
for the purpose of interviews. The
Superintendent of the jail may be
instructed to submit the report in
this regard at least once in 3
months to the prl. City Civil &
Sessions Judge, Bangalore who may
review the same issue instructions
as and when it is necessary.
9. Canteen facilities in the jail
require improvements. Some more
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articles for day to day use of the
inmates may be sold in the Canteen.
The Superintendent of the Jail may
in consultation of the prisoners
submit a report in this regard to
the prl. City Civil & Sessions
Judge, Bangalore mentioning the
articles which may be sold in the
Canteen. The Jail Authorities
should be strictly instructed not
to sell any of the articles to the
prisoners at a rate more than the
market price or for profit. For
this purpose, they may adopt any
procedure whereby the articles can
be held on the Principle ‘no loss
no profit’ basis.
10. It may be necessary to instruct
follow up action by all the
concerned Authorities in regard to
the implementation of the items
stated above."
10. We wish to place on record our appreciation for the
admirable work done by the District Judge.
11. Being concerned with a problem which is not confined to
the happenings in Central Jail, Bangalore, but which are
faced more of less by all the persons confined in 1155
prisons of different kinds in India, we have thought it fit
not to confine our attention and concern to what was found
in the Central Jail by the District Judge. According to us,
it would be more apposite to keep in view all the prisoners,
whose population at the end of 1993 was 1,93,240, of whom
1,37,838 were unconvicted remandees or undertrials.
12. It may be pointed that the National Human Rights
Commission is also of the view that the prison system as
such is in need of reform, nation-wide. (See para 4.18 of
these aforesaid Report).
13. The literature on prison justice and prison reform
shows that there are nine major problems which afflict the
system and which need immediate attention. These are : (1)
overcrowding; (2) delay in trial ; (3) torture and ill-
treatment; (4) neglect of health and hygiene; (5)
insubstantial food and inadequate clothing ; (6) prison
vices; (7) deficiency in communication; (8) streamlining o
jail visits; and (9) management of open air prisons.
14. We propose to take each of the problems separately and
express our view as to what could reasonably be done and
should be done to take care of the same.
Overcrowding
15. That our jails are overcrowded is a known fact. To
illustrate, in Tihar Jail as against the housing capacity of
2,500 persons in 1994-95, there were 8,500 prisoners, as
mentioned in Chapter 16 of ‘1 Dare’, a biographical work on
Ms. Kiran Bedi. Of course, the percentage of over-crowding
varies from prison to prison.
16. Though the aforesaid fact is known, what is not known
is the controversy as to whether overcrowding itself
violates any constitutional right. This question arises
because overcrowding contributes to a greater risk of
disease, higher noise levels, surveillance difficulties,
which increases the danger level. This apart, life is more
difficult for inmates and work more onerous for staff when
prisoners are in over capacity.
17. Though we have no decision of ours yet on the subject,
the American Supreme Court in two major decisions had
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addressed itself on overcrowding problem. First of these is
Wolff v. Mc Donnel, 418 US 539 (1974), involving pretrial
detainees. The Court held that the principle of ‘one man,
one cell’, cannot be read in the Due Process Clause of the
Fifth Amendment. It was further held that the practice of
placing two detainees in a cell meant for one person was not
unconstitutional. Of course, this view was taken because of
the facts of that case where it was found that the detainees
in the federal Metropolitan Correctional Centre were not
required to spend much time in their cells - only 7 or 8
hours per day. Further more, they were not exposed to the
overcrowding for very long as average stay was 60 days. The
second decision was in Rhodes v. Chapman, 452 US 337(1981).
The Court there was concerned with a convicted prisoner and
examined the question whether overcrowding constituted cruel
and unusual punishment. It did not read any violation of the
Eighth Amendment as there was no evidence that double-
celling had inflicted "unnecessary or wanton pain or was
grossly disproportionate to the severity of the crimes
warranting imprisonment" (See, ‘American Prison System’ by
Richard Hawkins ad Geoffery, p.420 of 1989 edition). The
Court went on to conclude that "the Constitution does not
mandate comfortable prison".*
* Chapter 8 (Prisons : Cruel and Unusual Punishment
Controversy) of ‘Hard Judicial Decisions" by Phillip J.
Cooper contains a criticism of these judgments.
18. Mention has been made of the aforesaid two decisions
despite there being no exact parallel to the Due Process
Clause of the Fifth Amendment of American Constitution or of
guarantee against cruel and unusual punishments mentioned in
their Eighth Amendment, in our Constitution, but Article 21
of our paramount parchment also does prohibit cruel
punishments, which would be apparent from the decision of a
three-Judge Bench on Deena vs. Union of India, AIR 1983 SC
1155 (= 1984 (1) SCR 1), in which execution of death
sentence by hanging was challenged on the ground of being
cruel and barbarous.
19. Even if overcrowding be not constitutionally
impermissible, there is no doubt that the same does affect
the health of prisoners for the reason noted above. The same
also very adversely affects hygienic condition. It is,
therefore, to be taken care of.
20. The recent decision of this Court requiring release on
bail of certain categories of undertrial prisoners, who
constitute the bulk of prison population, has to result in
lessening the over capacity. It would he useful to refer
here to the Seventy-Eighth Report of the Law commission of
Indian on ‘Congestion of Undertrial Prisoners in Jails’. The
Commission has in Chapter 9 of the Report made some
recommendations acceptance of which would relieve congestion
in jails. These suggestions include liberalisation of
conditions of release on bail. It may be pointed out that it
has already been held by this Court in Babu Singh vs. State
of U.P., AIR 1978 SC 527 (# 1978 (2) SR 777); and Gurbaksh
Singh Sibbia vs. State of Punjab, AIR 1980 SC 1632 (#1980
(3) SCR 383) that imposing of unjust or harsh conditions,
while granting bail, are violative of Article 21.
20A. We require the concerned authorities to take
appropriate decision on the recommendations of the Law
Commission within six months from today.
21. Overcrowding may also be taken care of by taking
recourse to alternatives to incarceration. These being: (1)
fine; (2) civil commitment; and (3) probation. There is an
enlightened discussion on these judicial choices in Chapter
IV of "Justices, Punishment, Treatment" by Leonard Orland.
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In that chapter (of 1983 edition) the learned author has
referred to many cases on this subject and has pointed out
the difference between "civil" and "penal" institutions from
the perspective of the inmate. As to release on probation,
it may be stated that it really results in suspension of
required to execute bond under the provisions of the
Probation of Offenders Act, 1958, requiring maintenance of
good conduct during the probationary period, the failure to
do which finds the concerned person in prison again. That
Act has provision of varying conditions of probation and has
also set down the procedure to be followed in case of the
offenders failing to observe conditions.
22. Overcrowding is reduced by releases on parole as well,
which is a conditional release of an individual from prison
after he has served part of the sentence imposed upon him.
Various aspects of parole have been dealt in Chapter 11 of
Professor Orland’s aforesaid book. In Suresh Chandra and
krishan Lal (supra) liberal use of parole was recommended by
this Court.
23. Reference may also be made in this connection to
Chapter 20 of the Report of All India Committee on Jail
Reforms (headed by Justice A.N. Mulla) (1980-83) Vol.I. That
chapter deals with the system of remission, leave and
premature release. The Committee has mentioned about various
types of remission and has made some recommendations to
streamline the remission system. As to premature release,
which is the effect of parole, the Committee has stated that
this is an accepted mode of incentive to a prisoner, as it
saves him from the extra period of incarceration; it also
helps in reformation and rehabilitation. The Committee has
made certain suggestions n this regard too. We direct the
concerned authorities to take appropriate decision on the
suggestions within a period of six months from today. It may
be pointed out that there is really a grievance about
allowing the recommendations to remain in cold storage. (See
article of T. Ananthachari "Human Rights Behind Prison
Walls" published at pp. 35-47 of the 1995 report by
Commonwealth Human Rights Initiative (a NGO) titled ‘Behind
Prison Walls - Police, Prisons and Human Rights’). While
taking appropriate decision, the authorities may apprise
themselves of what has been in Chapter 6 (headed ‘Parole’)
of the British White Paper on ‘Crime, Justice and Protecting
the Public’ (1990).
24. There is yet another baneful effect of overcrowding.
The same is that it does not permit segregation among
convicts - Those punished for serious offences and for
minor. The result may be that hardened criminals spread
their influence over others. Then, juvenile offenders kept
in jails (because of inadequacy of alternative places where
they are required to be confined) get mixed up with others
and they are likely to get spoiled further. So, problem of
overcrowding is required to be tackled in right earnest for
a better future.
Delay in Trial
25. It is apparent that delay in trial finds an undertrial
prisoner (UTP) in jail for a longer period while awaiting
the decision of the case. In the present proceeding, we are
really not concerned regarding the causes of delay and how
to remedy this problem. Much has been said in this regard
elsewhere and we do not propose to burden this judgment with
this aspect. We would rather confine ourselves as to how to
take care of the hardship which is caused to a UTP because
of the delay in disposal of this case. The recent judgments
of this Court (noted above) requiring release of UTP on bail
where the trial gets protracted would hopefully take care to
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a great extent the hardship caused in this regard. We desire
to see full implementation of the directions given in the
aforesaid cases.
26. Another aspect to which we propose to advert is the
grievance very often made about non-production of UTPs in
courts on remand dates. The District Judge in his report has
also found this as a fact. The reason generally advanced for
such non-production is want of police escorts. It has to be
remembered that production before the court on remand dates
is a statutory obligation and the same has a meaning also
inasmuch as that the production gives an opportunity to the
prisoner to bring to the notice of the Court, who had
ordered for his custody, if he has faced any ill-treatment
or difficulty during the period of remand. It is for this
reason that actual production of the prisoner is required to
be insured by the trial court before ordering for further
remand, as pointed out in a number of decisions by this
Court.
27. We are also conscious of the fact that police force in
the country is rather over-worked. It has manifold duties to
perform. In such a situation it is a matter for
consideration whether the duty of producing UTP on remand
dates should not be entrusted to the prison staff. To enable
the prison staff to do so, it would, however, need escorts
vehicles.
28. We would require the concerned authorities to take
appropriate decision in this regard within a period of six
months from today.
Torture and ill-treatment
29. There are horror stories in this regard. The cellular
jail on Port Blair resounds with the cries of the prisoners
who were subject to various forms of torture. This is now
being brought home in the Light and Sound programme being
organised in that jail, which after Independence has been
declared as a national monument. Other jails would also tell
similar stories.
30. Apart from torture, various other physical ill-
treatment like putting of fetters, iron bars are generally
taken recourse to in jails. Some of these are under the
colour of provisions in Jail Manuals. The permissible limits
of these methods has been spelt out well in many earlier
decisions of this Court to which reference has been already
made. We do not propose to repeat.
31. What we would rather state is that if what is being
done to prisoners in the above regard is to enforce prison
discipline mentioned in various Jail Manuals, there exists a
strong need for a new All India Jail Manual to serve as a
model for the country, which Manual would take note of what
has been said about various punishments by this Court in its
aforesaid decisions. Not only this, the century old Indian
Prison Act, 1894, needs a through look and is required to be
replaced by a new enactment which would take care of the
thinking of the Independent India and of our constitutional
morose and mandate. The National Human Rights commission has
also felt that need for such exercise, mention about which
has been made in para 4.18 and 4.21 of the aforesaid Report.
32. A reading of the Chapter IX on ‘Prison Discipline’ in
RN Datir’s book on ‘Prison as a Social System’, shows that
in some Jail Manuals even flogging/whipping has been
retained as a punishment, which would not be permissible in
view of the right enshrined in Article 21 of the
Constitution. We have mentioned about this only to highlight
the need for a new model All India Jail Manual.
33. It would be apposite in this context to refer to the
recent decision of the United States Supreme Court in Hudson
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v. Mc Millian, 403 US 1, in which that Court was required to
decide whether the use of excessive physical force against a
prisoner may constitute cruel and unusual punishment even
when the inmate does not suffer serious injury. This
question was answered in affirmative by majority of 7 : 2.
As already mentioned. Article 21 of our Constitution also
does not permit cruel punishment.
34. May we say that the ideal prison and the advance prison
system which the enlighted segment of the society visualise
would not permit torture and ill-treatment of prisoners. Of
course, if for violating prison discipline some punishment
is required to be given, that would be a different matter.
Neglect of health and hygiene
35. The Mulla Committee has dealt with this aspect in
Chapter 6 and 7 of its Report, a perusal of which shows the
pathetic position in which most of the jails are placed
insofar as hygienic conditions are concerned. Most of them
also lack proper facilities for treatment of prisoners. The
recommendations of the Committee in this regard are to be
found in Chapter 29. We have nothing useful to add except
pointing out that society has an obligation towards
prisoners’ health for two reasons. First, the prisoners do
not enjoy the access to medical expertise that free citizens
have. Their incarceration places limitations on such access;
no physician of choice, no second opinions, and few if any
specialists. Secondly, because of the conditions of their
incarceration, inmates are exposed to more health hazards
than free citizens. Prisoners therefore, suffer from a
double handicap.
36. In ‘American Prison System’ (supra) there is a
discussion at pages 411-13 as to whether a prisoner can seek
any relief from the Court because of neglect of medical
treatment on the ground of violation of their constitutional
right. Policy makers may bear this also in mind while
deciding about the recommendations of the Mulla Committee
Report, which they would so do within six months from today.
Insubstantial food and inadequate clothing
37. There is not much to doubt that the rules contained in
concerned Jail Manual dealing with food and clothing etc. to
be given to prisoners are not fully complied with always.
All that can usefully he said on this aspect is the persons
who are entitled to inspect jails should do so after giving
shortest notice so that the reality becomes known on
inspection. The system of complaint box introduced in Tihar
Jail during some period needs to be adopted in other jails
also. The complaint received must be fairly inquired and
appropriate actions against the delinquent must be taken. On
top of all, prisoners must receive full assurance that
whoever would lodge a complaint would not suffer any evil
consequence for lodging the same.
Prison vices
38. On this aspect nothing more is required to be said than
what was pointed out in Sunil Batra (II). It may only be
stated that some vices may be taken care of if what is being
stated later on the subject of jail visits is given concrete
shape. We have said so because many of the vices are related
to sexual urge, which remains unsatisfied because of
snapping of marital life of the prisoner. If something could
be done to keep the thread of family life unbroken some
vices many take care of themselves, as sexual frustration
may become tolerable.
39. The aforesaid seems to us a more rational way to deal
with prison vices rather than awarding hard punishment to
them. We may not be, however, understood to say that the
jail authorities need not take action against the prisoners
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indulging in vices; but in the situation in which they are
placed, a sympathetic approach is also required.
Deficiency in communication
40. While in jail, communication with outside world gets
snapped with a result that the inmate does not know what is
happening even to his near and dear ones. This causes
additional trauma. A liberalised view relating to
communication with kith and kin specially is desirable. It
is hoped that the model All India Jail Manual, about the
need of which we have already adverted, would make necessary
provision in this regard. It may be pointed out that though
there may be some rationale for restricting visits, to which
aspect we shell presently address, but insofar as
communication by post is concerned, there does not seem be
any plausible reason to deny easy facility to an inmate.
Streamlining of jail visits
41. Prison visits fall into three categories: (1) relatives
and friends; (2) professionals; and (3) lay persons. In the
first category comes the spouse. Visit by him/her has
special significance because a research undertaken on Indian
prisoners sometime back showed that majority of them were in
the age group of 18 to 34, which shows that most of them
were young and were perhaps having a married life before
their imprisonment. For such persons, denial of conjugal
life during the entire period of incarceration creates
emotional problems also. Visits by a spouse is, therefore,
of great importance.
42. It is, of course, correct that at times visit may
become a difficult task for the visitors. This would be so
where prisoners are geographically isolated. This apart, in
many jails facilities available to the visitors are
degrading. At many places even privacy is not maintained. If
the offenders and visitors are screened, the same emphasises
their separation rather than retaining common bonds and
interests. There is then urgent need to streamline these
visits.
43. Dr. Mir Mehraj-ud-din in his book ‘Crime and Criminal
Justice System in India’ has dealt with different aspects of
prison visits in Chapter VI headed ‘Resocialization : Search
for Goals’. The learned author has said that frequent jail
visits by family members go a long way in acceptance of the
prisoner by his family and small friendly group after his
release from jail finally, as the visits continue the
personal relationship during the term of imprisonment, which
brings about a psychological communion between him and other
members of the family.
44. As to visits by professionals, i.e. the lawyer, the
same has to be guaranteed to the required extent. If the
prisoner be a pre-trial detainee, in view of the right
conferred by Article 22(1) of the Constitution.
Management of open air prisons
45. Open air prisons play an important role in the scheme
of reformation of a prisoner which has to be one of the
desideratum of prison management. They represent one of the
most successful applications of the principle of
individualization of penalties with a view to social
readjustment as stated by B. Chandra in the Preface to his
book titled "Open Air Prisons". It has been said so because
release of offenders on probation, home leave to prisoners,
introduction of wage system, release on parole, educational,
moral and vocational training of prisoners are some of the
features of the open air prison (camp) system. Chandra has
stated in the concluding portion of Chapter 3 at page 150
(of 1984 edition) that in terms of finances, open
institution is far less costly than a closed establishment
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and the scheme has further advantage that the Government is
able to employ in work, for the benefit of the public at
large, the jail population which would have otherwise
remained unproductive. According to the author, the monetary
returns are positive, and once put into operation, the camps
pay for itself.
46. Reference may also be made to what has been stated in
Chapter 5 about the change in the human and social outlook,
which activities and programmes of these camps bring about.
The whole thrust is to see that after release the prisoners
may not relapse into crimes, for which purpose they are
given incentives to live normal life, as they are trained in
the fields of agriculture, horticulture etc. Games, sports
and other recreational facilities, which form part of the
routine life at the open air camps, inculcate in the
prisoners a sense of discipline and social responsibility.
The prayers made regularly provide spiritual straight.
47. While on the subject of prayer, mention may be made
about the experiment carried out even in the closed Tihar
Jail sometime in 1993-94, when Vipassana meditation was
introduced in a big way, which according to Tarsem Kumar,
one of the Jail Superintendents of the Jail, brought about a
radical change in the living and thinking of the prisoners,
as narrated in his book titled "Freedom Behind Bars".
48. Open air prison, however, create their own problem
which are basically of management. We are, however, sure
that these problems are not such which cannot be sorted out.
For the greater good of the society, which consists in
seeing that the inmates of a jail come out, not as a
hardened criminal but as a reformed person, no managerial
problem is insurmountable. So, let more and more open air
prisons be opened. To start with, this may be done at all
the District Headquarters of the country.
Conclusion
49. We have travelled a long path. before we end our
journey, it would be useful to recapitulate the directions
we have given on the way t various authorities. These are:
(1) To take appropriate decision on the recommendations of
the Law Commission of India made in its 78th Report on the
subject of ‘Congestion of undertrial prisoners in jail’ as
contained in Chapter 9. (Para 20A).
(2) To apply mind to the suggestions of the Mulla Committee
as contained in Chapter 20 of Volume I of its Report
relating to streamlining the remission system and premature
release (parole), and then to do the needful. (Para 23).
(3) To consider the question of entrusting the duty of
producing UTPs on remand dates to the prison staff. (Para
P7).
(4) To deliberate about enacting of new Prison Act to
replace century old Indian Prison At, 1894. (Para 31). We
understand that the National Human Rights Commission has
prepared on outline of an All-India statute, which may
replace the old act; and some discussions at a national
level conference also took place in 1995. we are of the view
that all the States must try to amend their own enactments,
if any, in harmony with the all India thinking in this
regard.
(5) To examine the question of framing of a model new All
India Jail Manual as indicated in para 31.
(6) To reflect on the recommendations of Mulla Committee
made in Chapter 29 on the subject of giving proper medical
facilities and maintaining appropriate hygienic conditions
and to take needed steps. (Paras 35 and 36).
(7) To ponder about the need of complaint box in all the
jails. (Para 37).
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(8) To think about introduction of liberalisation of
communication facilities. (Para 40).
(9) To take needful steps for streamlining of jail visits
as indicated in para 42.
(10) To ruminate on the question of introduction of open air
prisons at least in the District Headquarters of the
country. (Para 48).
50. The end of the journey is in sight. We conclude by
saving that the cognizance of the letter written by Rama
Murthy and the efforts made thereafter to find out what was
realty happening in the Central Jail of Bangalore, resulting
in submission of a voluminous report by District Judge,
would not prove to be an exercise in futility, if what we
have stated above is taken in all seriousness and our
prisons become reform houses as well, in which case the
social and economic costs of incarceration would become more
worth while. There seems to be no cause for disillusionment,
despite what has been stated in this regard by Roy D. King
and Rod Morgan in ‘The Future of Prison System’. According
to us, talk about treatment and training in prisons is not
rhetoric; it can prove to be real, given the zeal and
determination. And we cannot afford to fail in this sphere
as a sound prison system is a crying need of our time in the
backdrop of great increase in the numbers of prisoners and
that too of various types and from different strata of
society.
51. Let us, therefore, resolve to improve our prison system
by introducing new techniques of management and by educating
the prison staff with our constitutional obligations towards
prisoners. Rest would follow, as day follows the night. Let
the dawning ray (of hope) see the end of gloom cast on the
faces of majority of prisoners and let a new awakening
percolate every prison wall. Let it be remembered that
"where there is will, there is way". Will there is, way
would be found.
52. We had desired to dispose of the writ petition
accordingly. But as we could not hear all the States,
because of constraint of time and as they have to be heard
before giving directions as detailed above, let notices be
issued on the Secretary to the Government of India, Ministry
of Home and the Chief Secretaries of all the States and
Union Territories, as to why they should not be asked to act
for above. Let causes be shown within three months and let
the case be planed for further hearing thereafter soon.