SUNIL BATRA v. DELHI ADMINISTRATION (2)

Citation: [1980] 2 S.C.R. 557

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK, O. CHINNAPPA REDDY

Case summary

The court can issue writs to meet the new challenges. • recognition o~ the rights oft 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 11.

Judgment text

SUNIL BATRA v. DELHI ADM;fNISTRATION December 20, 1979 {V. R. KRISHNA lYEiR, R. S. PATHAK AND 0. CHINAPPA REDDY, JJ. ] Consti/1'. l. tion of India 1950, Article 32-Tortune inflicted on. prisoner in jailfactum of torture brought to notice of court-power and responsibility of CoUrt 'ii to intervene and protect prisoner. 1 Prisons Act 1894, Ss 27, 29 and 61 & Punjab Prison Manual, Paras 41, 47t 49 and 53--Solitary confinenient, denial of privileges, amenities to prisoners-to be imposer/. with judicial appraisal of Sesaions Judge-Prison Manual to be; ready reach oj prisoners-visits to jails by vis(tors, official and non-official-keeping of grie1•ance boxes in prisons and remedial ·action on grievances by Sessions fudges-PeP'i0tlical reports to be forwarded to the High Court-refornis sug. -. gested in vrison management and procedure. Legal ~tid-provision, of free legal aid to prisoners-necessity of.

The petitioner, a convict unde;r death sentence, through al letter to one of the Judges Clf this Court aJleged that torture· was practised, upon another prisoner ·by a jail "\"lli'arder, to extmct 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 autho1 ised them to visit the prison, meet the prisoner, see relervant documents 3. nd interview necessary witnesses so as to enable them to inform them"' selves about the surrounding circumstances and the scenMio of events. The an-1icus curiae after visiting the jail and examining \Vitnesses 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, ! :to was removed to tho jail hospital and, later to the Irwin Hospital.

It was also reported that the prisoner's explanation for the anal rupture was an unfulfilled ' • demand of the wa1der for money, and that attempts were made by the departmentol officers to hush up the crime by overawing the prisoner an Iyer and Chinnappa Reddy, JJ. ) I. la) Prem Chand the prisoner, hae been tortured illegaUy and the "Superintendent cannot absolve himself from responsibility even though he may not be dire:tly a party. Lack of vigilance is limited guilt. The primary guilb B cannot be fixed bocause a criminal case is pending or is in the offing. The State shall take oction against the investigating police for collusive dilatorine! l! i and deviousness. (599 FJ (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 ITJ (c) La1,1:yers nominated by the District Magistrate, Sessions Judge, High Court or the Supreme Court will be given all' facilitiesi for interviews, visits ancr confidential co1nmunicaotion with prisoners subject to discipline and security· considerations. The lawyers so designated shall bei bound to make periodical: visits and record and report to the concel')led courts, results which have relevance to legal grievances. [600 A-BJ (d) Within the next three months, Grievance Deposit Boxes shall be Diilin- y . tained by or under the orders of the District Magistrate by this capability. [563 El -----;r- 3. Protection of the prisoner within his rights is part of the office of· Article 32. [564 CJ 4. It behove~·the court to insist that, in the, eye· of law, prisoners zre1 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 o[ Indian earth and the Indian Constitution cannot be held at bay by jail officials 'dressed in a little, brief authority', when Pa-rt III ~. invoked by a. convict. When a prisoner is traumatized, the C'Onstitution suffers a shock. I [564 D-EJ , 5. The courts in America have, through the decisional process, brought the- . -f-. --. i:: 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: dynam;cs. cf habens· writs ther~ developed help the judicial process heire1. The full poteDtifil of Arts. 21, 19 & 14 after Maneka Gandhi has been unfolded by this Court in Hoskot and Batra. 1"oday, human rights jurisprudence in1 India }Jas a constitutional status ood sweep. [573 A, 574 DJ , 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 SUNIL BATRA v.

DELHI ADMINISTRATION 559 the traditional English writs. Flexible directives, even affirmative action 1noulded to grant relief, may realistically bo issued and fall within its fertiJ·, width. [575 f] Dwarkanath Y. Income Tax Officer [1965] 3 SCR 536 referred to. 7. 'i\fhere inju~tice, verging on inhumanity, emerges from hacking human rights ,guaranteed in Part III and the victim beseeches the Court to intervene and re"lieve, the Court will be a functional futility as a constitutional instriirnentality 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 DJ 8. i\ffirmed in unmistakable& 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 F1 9. In Sunil Batra v.

Delhi Administration (1978) 4 SCC 409 this Court rejected the 'hands-off' doctrine ~nd ruled that funda-mental rights do not flee: the person at> 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 l'aw, are violated- the v. •rit power of the court can and should run t()I his; rescue. There is a warrant for this vigil. 'The court proce~ casl sumably by overawing the prisoner and even the doctor, and other G. dubious devices, which we do not now scan, to do away with this • primary incriminating factor by offering incredible alternatives like ruptw-e 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 polica investigation; --- _. j.. :. ti. with its lethargic pact4 and collusive ways, ha~ hardly done credit to the Police Department's integrity, a fact that the Government will take note of, withont institutional sheltering of police delinquents. Imagine a police investigator, hunting for contradictions obviously to absolve the head warder by interrogating Dr. Kapoor who bad 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 •/o Prehlad was pro- fied, if truth has been suppressed. Dr. Chitale pointed out certain --- _ipoignant 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 busines~ c of investigation has been done. Indeed, the potential for oblique mutual help between the police and the prison staff makes Jail offences by jail ofucia1s undetectable; and so to obviate this possibility, the 0 CB. I. may well be entrusted, as a regular practice, with such cases The prisoner being a person, we cannot write him off.

D The alleged offender, Warder Maggar Singh, may be left aside for :a while. Thertj are other aspects of thei torture which demand deeper probe and panacea. The prisoner's explanation for the anal rupture is stated to be an unfulfilled demand for mOJJey, allegedly a general practice. This shows, if true, that bribery, at the point of barbarity, is a flourishing trade within 1he house of punishment itse1f. How stern should the sentence be for such official criminals andl 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 discl0sed F in the Superintendent's 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 takinii Mandrix tablets.

As he was in state of intoxicatiQn because of taking Mandrix tablets which he admitted before G • the Deputy Superintendent, he was kept in a cell pending orders of the Superintendent. Central Jail. He was taken to the jail hospita] 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 H Officer, recommended for the shifting of this prisoner to the Irwin Hospital with the report mentioned in the petition. The prisoner Prem Chand was shifted accordingly by Shri Bachan Singh, Assistant Superintendent on duty on 27-8-79. TI1e undersigned was informed that a case u/s 385 IPC had been registered against warder Maggar Singh in-charge of the ward No. 11 i. e. 40 cells with the police station Janak· puri and investigation had started in this case. The result of the investigation is still awaited.

The prisone~ was, however, received back in the jail on 29-8-79 Qn 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 by this Court in Sunil Batra's case (supra). Coming to the competing version put forward 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 illl 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 t~ the alleged torture which is the subject matter of this case. A number of prisoners in the Tillar 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. I~ has been seen that such prisone. rs 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 raport 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 got 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 cases have been recqmmended by Superintendent, Jail for transfer . . . . In para 568 (b) and the note thereunder of the . SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !. ) 569 Jail Manuai 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 ofj 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 tQe fact that a substantial number of the prisoners am under-trials who have to face, their case in court j 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 check- ' up . and by being kept along with contagious cases came home with a new disease ! We sound the tocsin that prison reform is now 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 Qfficers busy themselves with production· of p. risoners in court, the case of the Superintendent is that the.

other. prisoners "try to . do mischief, make thefts of • other prisonets who go on work, smuggle things and everz resort to assaults. " To sum up, the Tihar prison is an arena of tension ,trauma, tantrums . and crimes of . violence, vulgarity and ccrruption. 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 p the jail officials themselves are allegedly in league with the criminals in thei 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 jai~·are not uncommoo.

The Administration, if it does not immediately have the horrendous sitU;t-, lion examined by an impartiJil, 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 dis-, tinguished persons had complimented the jail authorities on the way managed the prison, Dr. Chitale placed before us some internal evidence 15-21SCI/80. from the materials on record, supplemented strongly by personal observations recorded while he was an internee in this very prison by Sbri Kuldip Nayar, a responsible journalist with nil apparent motive for mendacity nor inclination for subjectivity, in bis 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. The. re was, a money order and mail service that perhaps was more dependable than what the postal department c~uld 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 chargesthirty-three per cent was the prescribed "money order charge. " ...... Dharma Teja, the shipping magnate who 0 served his sentence in Tihar, for instance, had 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 bad all the comforts-he had an air cooler in his cell a radio-cum-record player set and even the facility of using the phone. . . . Haridas Mundhra, a businessman who was convicte. d of fraud, was ano~er rich man who spent some time in tihar.

Not only did he have' all the facilities, but be 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 bis jail terrn 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. ' SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !. ) 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 institutinns. The higher officials also have their finger in the pie, if Nayar were veracious: 'Perhaps the way almost everyone had his cut was most B. 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 them appropriated their share,,again topping np with water. c Even more shocking than the corruption was the ingenious "slave system" we found in the jail. The slaves were boys between ten and eighteen employed as 'helpers", and there were scores of them.

They cooked, washed utensils, cleaned rooms, fetched water and did much backbreakinE lab. our to "help" the men who were paid to do D 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 fol!

nd 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 Debi-, 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 touchiu~ beyond tears, even if there be but . a title of truth in the statement "In Jail," is about children being lapped A up and locked up for use as bonded labour in punitive houses of justice. The nwdus 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 B to help with the chores. For the past several days, the warder said, jail anthorities 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 (betelleaf) from a Defence Colony shop, the police had hauled him up as a vagabond; they were responding to the jail authoc rities' appear 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- D up cbarges 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 Qf 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 F the conventional blinkers, courts have been to examine the manner inl 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 Juri~prudence there is a pregnant observation : (•) G 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. H (! ) Kuldip Nayar, "In Jail" pp. 30-34. (2) 1970 Vol. 5 (3) 2d, Vol. 39, p. 185 para 11. SUNIL BATRA v. DELm ADMINISTRATION (Krishna Iyer, !. ) 573 Corpus JuriJ;, 2d, Vol. 39, page 274, para 7 strikes a similar note, A away frum 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, plementary 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 inprison 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 violation of law by officials. We direct that Prem Chand be released r, 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 Jawabarlal Nehru to Jay Prakash Narain, bas 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 band-cuffs were recklessly being practised either on account of ignorant unconscionableness or wilful viciousness in several detention camps. Many of the victims are poor, mute, illiterate, desperate and destitute an~ too distant from the law to be aware of their rights or ask for access to justice, especially when the nmriing tension of the· prison and the grisely 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 actions, class remedies have pro bona 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 r 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 bas relevance for the y prisoner here:' ·• I am an invisible man ....

I am a man of substance, of fiesb 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 figmenu of thek 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, ' SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer,!. ) 581 those eyes with which they look through their physical eyes 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 B. them recognise you. And, alas, it is seldom snccessful.

In a c•Jlture of Antyodaya, the court must rescue the weakest by pre-emptive 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. 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 I» so as to avoid misconception. Desai J. has stated Justice Krishna Iyer has delivered an elaborate judgment which deals with important issues raised before us at great > length and with great care and concern.

We have given a separate opinion, not because we differ with him on fundamentals, but because we thought it necessary to express our views on certain aspects of the questions canvassed before us. Likewise, in the separate 'judgment, a similar statement is made : I am aware that a splendid condensation of the answers to the core questions has been presented by my learned brother Desai, J and I endorse the conclnsion. A close perusal shows that both the judgments in Batra's case lay down the same rule and the elaborate guidelines in the first opinion are a necessary proliferation of the law expounded in the second judgment in the case. We hold, agreeing with both counsel, that the detailed ·- prescriptions. in the separate opinion in Sunil Batra (p. 488 to 493) is correct law and binds the penal institutions in the country.

We agree with these guidelines and express ourselves to that effect since the core question raised in the present case and the cardinal principles we have accepted lead to the same conclnsions. At the outset, we notice the widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners. Ac tention of the State to the need to get ready Prisoner's 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. Prisoners are peculiarly and doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station and the like. Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices unheeded. So it is imperative, as implicit in Art.

21 that life or lib~rty shall not be kept in suspended animation or congealed into animal existence without the freshing flow of air, procedure. The meaning of 'life' given by Field J. , approved in Kharak Singh' and Maneka Gandhi' bears exception: Something more than mere animal existence. The inhibition against its deprivation extended to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of \,-· F an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul ; communicates with the outer world. ' .. Therefore, inside prisons are persons and their personhood, if crippled by law-keepers turning law-breakers, shall be forbidden by the Writ of this Court from such wrong doing.

Fair procedure, in dealing with prisoners, therefore, calls for another dimensions of access to law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates. A handbook meets the logistics of the law in field. Of course, the prison staff also suffer from the pathology of misinformation or non-education about rights and limitations and this ignoratia juris I. Kharak Singh v. The State a/ U. P. [196411 SCR 332 at 357. 2, Maneka Gandhi v. Unian of Indio [1978] I SCR 248. SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J. ) 583 . situation leads to insensitivity to human rights and a test in the hand- . book of prison law must be a minimum for recruitment. The peril to prison rights is from the uninstructed personnel, apart from the anticultural ethos which permeates. It behoves Government to insist on the professional requirement, for warders and wardens, of a hearty . familiarity with the basics of Prison Law.

,~ Rights jurisprudence is important but becomes an abstraction in - ' . The Court is always ready to correct injustice but it is no practical . proposition to. drive every victim to move the court for a writ, know- --- ,. _ ing the actual hurdles and the prison realities. True, technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found; still, the awe and distance of courts, the legalese and mystique, keep the institution unapproachable. More realistic is to devise a method of taking the healing law to the injured victim. That system is best where the remedy will rush to the injury on the sligh· test summons. So, within the existing, dated legislation, new mean· ings must be read.

Of course, new legislation is the best solution, but when lawmakers take for too long for social patience to suffer, as in r this very case of prison reform, courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture. Counsel rivetted their attention on this pragmatic engineering and jointly helped the court, to constitutionalise the Prisons Act prescriptions. By this legal energetics they desired the court to read into vintage provisions legal remedies. Primarily, the prison nuthority has the duty . to given effect to the court sentence. (See for e. g. SS. 15 and 16 of the Prisoners Act, 1900). To give effect to t_he sentence means that it is illegal to exceed it and so it follows that a prison official who goes beyond more imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Art. 19.

Punishments of rigorous imprisonment oblige the inmates to do hard labour, not, harsh laboor and. so a vindictive officer victimisin. g a prisoner by forcing on him particularly harsh and degrad" '). ing jobs, violates the law's mandate. For example, a prisoner, if forced to carry night soil, may seek a habeas writ. 'Hard labour' in s. 53 has to receive a humane meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylllll\S.. J_G-21 SCI/80 [1980] 2 S. C. R. Section 27(2) and (3) of the Prison. s Act states: 27. The requisitings of this Act with respectto the •separations of prisoners are as follows: (1) xx xx B· (2) \n a prison where male prisoners under the age of twenty-one are confined, means .

shall he provided for separating thein altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not. (3) unconvicted criminal prisoners shall be kept apart from convicted criminal prisoners; and i . The materials we have referred to earlier indicate slurring over ! his rule anci its violation must be visited with judicial correction and punishment of the jail staff. Sex excesses and exploitative labour are D. the vices adolescents are subjected to by adults'. The young inmates must be separated and freed from exploitation by adults. If Kuldip Nayar is right this rule . is in cold storage. It is inhuman and unreasonable to throw. young boys to the. sex-starved adult pr -find a place in such a scheme. We are dealing with a morbid world where sun and light arc banished and crime has neurotic dimensions. Special situations need special solutions. We reach the most critical phase of counsel's submissions viz.

, the legal fabrication and engineering of a remedial machinery within the fearless reach of the weakest of victims and worked with independence, accessibility and power to review and punish. Prison power, absent judicial watch tower, may tend towards torture. The Prisons Act and Rules need revision if a constitutionally and culturally co,ngruous code is to be fa,hioned. The model jail manual, we are unhappy to say and wncur in this view with the learned Solicitor General, is far from a model and is, perhaps, a product of prison officials insufficiently instructed in the imperatives of the Constitution and unawakened to the new hues of human rights. We accept, for the nonce, the suggestion of the Solicitor General that within theexisting stii\utory framework the requirements of constitutionalism. may be read.

He heavily relies on the need for a judicial agency whose presence, direct or by delegate, within the prison walls will deal with grievances_ For this purpose, he relies on the Board of. Viilitors, their powers and duties, as a functional substitute for a Prison. Ombudsman. A controllerate is the desideratum for in situ reception and redressal of grievances. After all, the daily happenings, when they hurt harshly, have to be • arrested forthwith, especially when it is the prison guards and the, head warders who brush with the prison inmates. Their behaviour' often causes friclion and fear but when their doings are impeached, the institutional defence mechanism tends to protect them from top t<> bottom. So much so, injustice escapes punishment. 1-1 In this context it is apt to quote David Rudovsky: (') (I) The Rights of Prisoners, p. 23. SUNJL BATRA v. DELIU ADMINISTRATION (Krishna Iyer, J. ) 589 ....

The present system puts absolute discretion and day-to- " day power over every aspect of a prisoner's life in their hands. It is this part of prison life which causes the deepest resentment among prisoners for, to a large extent, the manner in which an inmate is treated by the guards determines the severity of conditions he will have to endure. It is a double irony that the lower the level of authority in prison (from warden on down to guard) the greater tho discretion that is vested in the prison official and the less willing the courts are to review their decisions. Thus, whether it be a request for medical treatment, the right to go to the yard 01 prison library, or the potentially more serious C. matter of prison discipline and punishment, the guard of the block holds ultimate power over the prisoner.

Complet~ discretion in the context of prison Mc where no remedies exist to correct it, can be catastrophic, Judge Sobeloff has put it bluntly: In fact, prison guards may be more vulnerable to the corrupting influence of unchecked authority than most people. It is well known that prisons are operated pn minimum budgets and that poor salaries and working conditions make it difficult to attract high-calibre personnel. Moreover, the "training" of the officers in dealing with obstreperous prisoners is but a euphemism in most states. George A. Ellis quotes a prisoner's letter :(') You Cllnnot rehabilitate a man through brutality and disrespect. .. If you treat a man like an animal, then you must expect him to act like one. For every action, there is a reaction ... And in order for an inmate, to act like a human being you must trust him as such..... You can't spit • in his face and expect him to smile and say ihank you.

The institution and composition of the Board of Visitors comes in • handy and has statutory sanction. The visitatiorial power is wide. the panel of visitors includes judicial officers and such a situation ran be pressed into service legally to fulfil the constitutional needs; Para 47 read with para 53-A sets out the structure of the Board Para 47(b); to (d) includes District & Sessions Judges, District Magistrates and Sub-Divisional Magistrates among the members. The functions of visitors are enumerated in para 53, and 53-B and they include (a) (I) Ro! l pecific setting of this . case, where the complaint is that a j . tment of Prisoners and Related recommendations- U. N. Dept. of Economics & Social Welfare, New York, 1958. SUN! L BATRA V· DELHI ADMINISTRATION (Krishna Iyer, J. ) 5~9 agencies.

Steps should be taken to safeguard, to the minimum extent compatible with the law and the sentence, the rights relating to civil interests, social security rights and other social benefits of prisoners. It follows that social resources, helpful to humane treatment and • mainitreaming, should be ploughed in, senior law students screened • • by the Dean of reputed Law Schools may usefully be deputed to interview prisoners, subject to security and discipline. The grievances so gathered can be fed back into the procedural mechanism viz. the Dis• trict Magistrate or Sessions Judge. The Delhi Law School, we indicate, should be a"Uowed to send selected students under the leadership of a teacher not only for their own clinical education but as prisonergrievance-gathering agency. Other service organisation, with good credentials, should be encouraged, after due checking for security, to play a role in the same direction. The Prifons Act does provide !

or rulemaldng and issuance of instructions which can take care of this suggestion. Omega The omega of our judgment must take the shape of clear directives to the State and prison staff by epitomising the lengthy discussion. To clinch the issue and to speN out the precise directions is the next step. 1. We hold that Prem Chand, the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party. Lack of vigilance is limited guilt. We do not fix the primary guilt because a criminal case is pending or in the offing. The State shall take action against the investigating police for the apparently collusive dilatoriness and deviousness we have earlier indicated. Policing the police is becoming a new ombudsmanic task of the rule of law. 2. We direct the Superintendent to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted.

No irons shall be forced on the person of Prem Chand in vindictive spirit. In those rare cases of 'dangerousness' the rule of hearing and reasons set out by this Court in Batra's case and elaborated earlier shall be complied with. · 600 SUPREME COJRT REPORTS [1980] 2 S. C. R. , A 3. Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all faciiities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court B results which have relevance to legal grievances. 4. Within the next three months, Grievance I>;,posit Boxes shall be ailll rr.

aintained by or under the orders-of the District Magistrate and the 1 c Sessions Judge which will be opened as frequently as ·is deemod fit and """suitable action taken on complaints made. Access lo such boxes shall be accorded to all prisoners. 5. District Magistrates and Sessions Judges shall, personally or D through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall mlike expeditious enquiries thcte into and take suitable remedial action. In appropriate cases reports shall be made to the H:gh Court for the latter to initiate, if found necessary, habeas action. E It is siguificant lo note the Tamil Nadu Prison Reforms Commission's observations : 38. 16. Grievance Procedure :-This is a very important F righ l of a prisoner which does not appear to have been properly considered.

The rules regulating the appointment and duties of non-official visitors and official visitors to the prisons have been in force for a long time and their primary functions is "to visit all parts of the jail and to see all prisoners· and to hear and enquire into any complaint that any prisoner G may make". In practice, these rules have not been very effective in providing a forum for the prisoners to redress their grievances. There are a few non-official visitors who take up their duties conscientiously and listen to the grievances of the prisoners. But most of them take this appointment solely as H a post of honour and are somewhat reluctant to record in the · visitor~' book any grievance of a prisoner which might cause embarrassment to the prison staff. The judicial officers, viz. , SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer,!. ) 691 the Sessions Judge and the Magistrates who are also ex-officio visitors do not discharge their duties effectively.

(1) We insist that the judicial officers- referred to by ns shall carry out their d)lties and responsibilities and serve as an effective grievance mechanism. 6. No solitary or punitive cell, no hard labour or dietary change as ~-. painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action. Conclusion What we have sfated and directed constitute the maudatory part of the judgment and shall be complied with by the State. But implicit in · the discussion and conclusions are certain directives for which we do t not fix any specific time limit except to indicate the urgency of their . ,. r implementation. We may spell out four such quasi-mandates. 1.

The State shall take early steps to prepare in Hindi, a Prisoner's •• Handbook and circulate copies to bring legal awareness home to the f<. inmates. Periodical jail bulletins stating how improvements and habilitative progra=es are brought into the prison may create a fellow-ship which will ease tensions. A prisoners' wall paper, which will freely ventilate grievances· will also reduce stress. All these are implementary of s. 61 ef the Prisons Act. 2. The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners reco=ended by the United Nations, especially those relating to work and wages, treatment with dignity community contact and correctional strategies. In this latter aspect, the observations we have made of holistic development of personality shall be kept in view. 3. The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the Model Manual being out of focus with healing goals.

A correctional-cum-orientation course is necessitous for the prison staff inC'Ulcating the constitutional values, therapeutic aproaches and R ll"l! Sion-free management. (1) Vol. II, p. 76 1102 SUPREME CO! JRT REPORTS (1980] 2 S. C. R. 4. The prisoners' rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the Court such as for e. g. Free Legal Aid (Supreme Court) Society. The District Bar shaH, we recommend, keep a cell for prisoner relief. In this connection, it is heartening to note that the Delhi University, Faculty of Law, has a scheme of free legal assistance even to prisoners. The Declaration on the Protection of All Persons from Torture and · Other cruel, Inhuman or Degrading Treatment or Punishment adopted by U. N- General Assembly (Resolution 3452 of 9 December 19"5) bas relevance to our decision.

In particular- Article 8. -Any persO'll who• alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned. Article 9. -Wherever there is reasonable ground to believe that an act of torture as defined in article I has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint. Dr. Chitale has handed up to us an American Civil Liberties Union Hand-book on the Rights of Prisoners. It rightly sets the sights of prison justice thus(') : As an institution, our penal and "correctional" system is an abject failure. The conditions in America's jails and prisons virtually ensure psychological impairment and physical deterioration for thousands of men and women each year.

Reformation and rehabilitation is the rhetoric; systematic dehumanization is the reality. Public attention is directrd (l) David Rudovsky Alvin J. Bronstein Edward I. Koren,p. 11 SUNIL BATRA V· DELHI ADMINISTRATION (Krishna Iyer, J. ) 613 Qllly sporadically toward the subhuman conditiC111~ that prevail in these institutions, and usually only because the priso- Rers tl~mselves have risked many more years in confinement, and in some cases even their lives, to dramatize their situation by protest. The 'central evil' of prison life, according to this handbook, is "the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners. Moreover, even those rights • whicll are now guaranteed by the courts are often illusory for many prisoners. Implementation and enforcement of these rights rest pri- Jllarily in the hands of prison officials. Litigation is costly and timeconsuming, and few lawyers have volunteered their service in this area.

Thus eyen those minimal rights which appear on paper are often in reality ·denied. " We conclude with the hope that the State, though preoccupied with many pressing problems, will discharge its constitntioaal obligation to the invisible mortals incarcerated by it and legislatively and administratively re-make a Prison Code adhering to the high vahi~s of the Preamble. Over a hundred years ago (1870) (')- " .... some American prison administrators assembled to discuss their common problems and founded what is now the American Correctional Association. At the very first meeting, these remarkable men set down a justly famous 'Statement of Twenty-two Principles. " Among the twenty-two were these : "Refonnation, not vindictive suffering, should be the purpose of the penal treatm. ellf_pf prisoners.

The prisoner should be made to realize that his destiny is in his own hands : Prison discipline should be such as to gain the will of the prisoner and conserve his self-respect; The aim of the prison should be to make industrious free men rather than orderly and obedient prisoners. This quote from the well-known work "The Crime of Punishment" extracted by George Ellis in his book "Inside Folsom Prison : Trans- (1) Karl Menninger, M. D. The Crime ofPunishment (New Yeork; The Vikin& Press, Inc. 1969) p. 219. A cendental meditation and TM-Sidhi Program" (1) is notable as a practi. cable project which will reduce the number of prisoners by raising the nature of prisoners. In the package of benign changes needed in our prisons with a view B to reduce tensions and raise the pace of rehabilitation, we have referred to acclimatization of the community life and elimination of sex vice vis a vis prisoner we have also referred to the unscientific mixing up in .

'" practice of under-trials, young offenders and long-term convicts. This point deserves serious attention. A recent book "Rape in Pri~o11. " states :(') "One of the most horrendous aspects of a jail sentence is the fact that not only are the young housed with the older offenders, but those awaiting trial share the same quarters as convicted inmates. The latter individuals have little to lose in seeking sexual gratification through assault, for they have to serve their time any way ..... As matters now stand, sex is unquestionable the most pertinent issue to the inmates' life behind bars ... There is a great need to utilize the furlough system in corrections. Men with record showing good behaviour should be released for week ends at home with their families and relatives. Farewell to this case is not final so far as the jailor and the police investigator are concerned. The former will stand his trial and shall receive justice. We say no more here.

The invesitgator invite~ our displeasure and the Assistant Public Prosecutor, whom he consulted, makes us unhappy since we have had a perusal of the case diary. The crime alleged is simple, the material relied on is short and yet, despite repeated observations from the Bench the investigator has delayed dawdily the completion of the collection of evidence and the laying of the charge-sheet. The prisoner who is the victim has been repeatedly questioned under different surroundings and divergent statements are recorded. We do not wish to state what we consider to be the obvious luference, but we are taken aback when the Assistant Public Prosecutor has given an opinion which, if we make presumptions in bis favour, (1) KTC Publications, Pam Springs, California, p. xxi. (2) Anthony M. Scacco, Jr. "Rape in Prison',' pp. 18, 33, 113. SUNIL BATRA v. DELHI· ADMINISTRATION (Pathak, J. ) 605 shows indifferences and, if we make contrary inferences, makes us suspect.

When offences are alleged to have taken place within the prison, there should be no tinge or trace of departmental collusion or league between the police and the prison staff. We make these minimal observations so that the State may be alerted for appropriate action. Surely, the conduct of the prosecution cannot be entrusted to one who has condemned it in advance. \< • We allow the petition and direct a writ to issue, including the six mandates and further orderJJli! t a copy of it be sent for suitable ac~ion ' co the Ministry of Home AftWs and to all the State Governments smce Priron Justice has pervasive relevance. PATHAK, J. -I have read the judgment prepared by my learned brotl1er. For my part, I think it sufficient to endorse the following finding and direction detailed towards the end of the judgment : (1) The prisoner, Prem Chand, has been tortured while in custody in the Tihar Jail.

As a criminal case is in the offing or may be pending, it is not necessary in this proceeding to decide who is the person responsible for inflicting the torture. (2) The Superintendent of the Jail is directed to ensure that no punishment or personal violence is inflicted on Prem Chand ... by reason of the complaint made in regard to the torture visited oo him. Besides this, I am in general agreement with my learned brother on the. pressing need for prison reform and the expeditious provision for adequate facilities enabling the prisoners, not only to be acquainted with their legal rights, but also to enable them to record their complaints and grievances, and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the Court having jurisdiction subject, of course, to considerations of prison discipline and security.

It is imperative that District 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, to make expeditious enquiry therein and take suitable remedial action. It is also necessary A that the Sessions Judge should be informed by the jail authorities of any punitive actiO'll taken against a prisoner within two days of such action. A statement by the Sessions Judge in regard to his visits, enquiries made and action taken thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within the jurisdiction of the High Court. B N. V. K. Petition allowed. MGIPF-21 SCl/80-d-1-80-2,50G