Case of Other, August 30, 1978 (case Sunil Batra Etc. VS. Delhi Administration And Ors. Etc.)

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SUMMARY

Section 30(2) of the Prisons Act provides that every prisoner under sentence of death shall be confined in a cell apart from all other prisoners and shall be placed by day and by night under the charge of a guard. The petitioner in W.P. No. 2202 of 1977 who was a convict under sentence of death challenged his solitary confinement. It was contended on his behalf that s. 30(2) does not authorise placing a prisoner under sentence of death in solitary confinement and that the jail authority could not arrogate to itself the power to impose such punishment under the garb of giving effect to s. 30(2). On the other hand it was contended on behalf of the State that the section merely permits statutory segregation for safety of the prisoner in the prisoner's own interest and that instead of striking down the provision, the Court should adopt a course of so reading down the section as to denude it of its ugly inhuman features. The petitioner in W.P. 565 of 1977 contended that s. 56 of the Prisons Act which confers unguided, uncanalised, and arbitrary powers on the Superintendent to confine a prisoner in irons is ultra vires Arts. 14 and 21 of the Constitution. Dismissing the petitions. ^ HELD: (per Chandradchud C.J. Fazal Ali, Shinghal and Desai, JJ.). 1. Section 30(2) does not empower the prison authority to impose solitary confinement upon a prisoner under sentence of death. Even jail discipline inhibits solitary confinement as a measure of jail punishment. [499H] 2. It has been well established that convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess. For example a man of profession who is convicted would stand stripped of his right to hold consultations while serving out his sentence; but the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise even 393 a convict is entitled to the precious right guaranteed by Art. 21 that he shall not be deprived of his life or personal liberty except according to the procedure established by law. [495G-H] Procunier v. Martiney 40 L. Ed. 2d. 224 at 248; Wolff v. Mcdonnel 41 L. Ed 409 at 501; D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh & Ors. [1975] 2 SCR 24 referred to. 3. Sections 73 and 74 of the Indian Penal Code leave no room for doubt that solitary confinement is by itself a substantive punishment which can be imposed by a court of law. It cannot be left to the whim and caprice of prison authorities. The limit of solitary confinement that can be imposed under Court`s order is strictly prescribed by the Penal Code. [498 B-C] 4. Solitary confinement is so revolting to the modern sociologist and law reformer that the Law Commission recommended that the punishment of solitary confinement is out of tune with modern thinking and should not find a place in the Penal Code as a punishment to be ordered by any criminal court even though it may be necessary as a measure of jail discipline. [498 F-G] 5. The explanation to s. 44(8) of the Prisons Act makes it clear that a person is not wholly segregated from other prisoners in that he is not removed from the sight of other prisoners and he is entitled to have his meals in association with one or more other prisoners. Even such separate confinement cannot exceed three months. Para 847 of the Punjab Jail Manual, if literally enforced would keep a prisoner totally out of bounds, that is, beyond sight and sound. Neither separate confinement nor cellular confinement of a condemned prisoner would be as tortuous or horrendous as solitary confinement of a condemned prisoner. Section 30(2) merely provides for confinement of a prisoner under sentence of death in a cell apart from other prisoners. Such confinement can neither be cellular confinement nor separate confinement and in any event it cannot be solitary confinement [499E-H] 6. A "prisoner under sentence of death" in the context of s. 30(2) can only mean a prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or avoided by any judicial or constitutional procedure. Till then a person who is awarded capital punishment can be said to be a prisoner under sentence of death. There is an inordinate time lag between the sentence of death passed by the Sessions Judge and the final disposal of appeal by the High Court or Supreme Court depending on the circumstances of each case or the rejection of an application for mercy by the President or the Governor. It cannot be said that under s. 30(2) such prisoner, from the time the death sentence is awarded by the Sessions Judge has to be confined to a call apart from other prisoners. [501F, 502C, 501C, 501E] 7. Jail custody is something different from custody of a convict suffering simple or rigorous imprisonment. The purpose behind enacting s. 366(2) of the Code of Criminal Procedure is to make the prisoner available when the sentence is required to be executed. Unless special circumstances exist, even in cases where a person is kept in a cell apart from other prisoners with day and night watch, he must be within the sight an sound of other prisoners and be able to take food in their company. [502 E-G] 394 8. Section 30(2) as interpreted is not violative of Art. 20. When a prisoner is committed under a warrant for jail custody under s. 366(2), Cr. P.C. and if he is detained in solitary confinement which is a punishment prescribed by s. 73, I.P.C. it will amount to imposing punishment for the same offence more than once, which would be violative of Art. 20(2). But as the prisoner is not to be kept in solitary confinement and the custody in which he is kept under s. 30(2) would prelude detention in solitary confinement, there is no chance of imposing a second punishment upon him and, therefore, s. 30(2) is not violative of Art. 20. [502H; 503 A-B] 9. Personal liberty of the person who is incarcerated is to a great extent curtailed by plaintive detention. It is even curtailed in preventive detention. The liberty to move, mix, mingle, talk, share company with co-prisoners, if substantially curtailed, would be violative of Art. 21 unless the curtailment has the backing of law. Section 30(2) establishes the procedure by which it can be curtailed but it must be read subject to the interpretation placed in this judgment. Once s. 30(2) is read down, its obnoxious element is erased and it cannot be said that it is arbitrary or that there is deprivation of personal liberty without the authority of law. [504E-F] t 10. Classification according to sentence for security purposes is valid and therefore s. 30(2) does not violate Art. 14. The restriction imposed by s. 30(2) is not unreasonable. It is imposed keeping in view the safety of the prisoner and the prison security and does not violate Art. 19. [505F] 11. There is no warrant for an implicit belief that every prisoner under sentence of death is necessarily violent or dangerous requiring his segregation. The rationale underlying s. 30(2) is that the very nature of the position and predicament of a prisoner under sentence of death leads to a certain situation and present problems peculiar to such persons and warrant their separate classification and treatment as a measure of jail administration and prison discipline. It can hardly be questioned that prisoners under sentence of death form a separate class and their separate classification has to be recognised. [505 A-C] 12. Section 30(2) as interpreted does not mean that the prisoner is to be completely segregated except in extreme cases of necessity which must be specifically made out and that too after he become a prisoner under sentence of death. [505F] 13. Section 56 is not violative of Arts. 14 and 21. [511C] The power under s. 56 can be exercised only for reasons and considerations which are germane to the objective of the statute, viz.: safe custody of the prisoner, which takes in considerations regarding the character and propensities of the prisoner. These and similar considerations bear direct nexus with the safe custody of prisoners as they are aimed primarily at preventing their escape. The determination of the necessity to put a prisoner in bar fetters has to be made after application of mind to the peculiar and special characteristics of each individual prisoner. The nature and length of sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of determining that question. [509A-C] 14. There are sufficient guideiines in s. 56. It contains a number of safe guards against misuse of bar fetters by the Superintendent. Such circumscribed peripheral discretion with duty to give reasons which are revisable by the higher 395 authority cannot be described as arbitrary so as to be violative of Art. 14. The A Superintendent can put the prisoner in bar fetters only after taking into consideration the peculiar and special characteristics of each individual prisoner. No ordinary routine reasons can be sufficient. Duty to record reasons in the Superintendent`s journal as well as the prisoner`s history ticket will narrow the discretionary power conferred on him. The reasons must be recorded in the language intelligible and understandable by the prisoner. A further obligation is that the fetters imposed for the security, shall be removed by the Superintendent as soon as he is of opinion that this can be done with safety. The Superintendent will have to review the case at regular and frequent intervals for ascertaining whether the fetters can be removed. [510-A-B, 509E-H] 15. Moreover the section does not permit the use of bar fetters for an unusually long period, day and night, and that too when the prisoner is confined in a secure cell from where escape is somewhat inconceivable. [511B] C Per Krishna Iyer J. concurring 1. The vires of section 30 and section 56 of the Prisons Act upheld. These and other provisions, being somewhat out of tune with current penelogical values, to be revised by fresh legislation. Prison Manuals are mostly callous colonial compilations and even their copies are mostly beyond the prisoner's ken. Punishments. in civilized societies, must not degrade human dignity or would flesh and spirit. The cardinal sentencing goal is occupational, changing the consciousness of the criminal to ensure social defence. Where prison treatment abandons ... (see full summary)

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PETITIONER: SUNIL BATRA ETC.

Vs.

RESPONDENT: DELHI ADMINISTRATION AND ORS. ETC.

DATE OF JUDGMENT30/08/1978

BENCH: KRISHNAIYER, V.R.

BENCH: KRISHNAIYER, V.R.

CHANDRACHUD, Y.V. ((CJ)

FAZALALI, SYED MURTAZA

SHINGAL, P.N.

DESAI, D.A.

CITATION: 1978 AIR 1675 1979 SCR (1) 392 1978 SCC (4) 494

CITATOR INFO : RF 1979 SC 916 (82)

E 1980 SC 249 (4)

R 1980 SC 470 (10)

F 1980 SC1535 (2,11,20,21,23,30,38)

REL 1980 SC1579 (3)

RF 1980 SC1789 (112)

RF 1980 SC2147 (51)

R 1981 SC 625 (2,4,7,8,10,11,12,14)

RF 1981 SC 746 (3,4,6)

R 1981 SC 939 (3)

R 1981 SC1767 (11,22)

MV 1982 SC1325 (75)

F 1982 SC1413 (45)

R 1983 SC 361 ((2)1,12,14,17)

RF 1983 SC 465 (3,5,12,16,17)

R 1983 SC 473 (6)

RF 1985 SC 231 (2,3)

R 1986 SC 180 (39)

F 1989 SC1375 (20,71)

RF 1991 SC 101 (30,70,115,227,278)

RF 1991 SC 345 (6)

RF 1991 SC2176 (39)

ACT: Prisons Act 1894-Section 30-Scope of-Solitary confinement-Imposition of bar-fetters under. s. 56 on a prisoner-Whether violates Articles 14, 19, 21 of the Constitution 1950.

Practice and Procedure-Necessity of social welfare organisation to intervene in the litigative process.

Prisons Act 1894 and Punjab Jail Manual-Need for revision to reflect the deeper meaning in the behavioural norms correctional attitudes and luimane orientation for the prison staff and prisoners alike.

Words & Phrases-Under sentence of Death and 'apart from all other prisoner's-Meaning of

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition Nos. 2202 and 565 of 1977.

Under Article 32 of the Constitution.

Y. S. Chitale (A.C.), Randhir Jain, M. Mudgal and G. K.

B. Chowdhury (A.C.) for the petitioner (in W.P. No.

2202/77).

N. M. Ghatate, S. V. Deshpande, Sumitra Bannerjee & M.

K. D. Namboodiry for the petitioner (in W.P. No. 565 of 1977).

Soli J. Sorabjee, Addl. Sol. Genl., K. N. Bhatt, R. N.

Sachthey and Girish Chandra for the petitioner (in W.P.

No.2202/77) Soli J. Sorabjee, Addl. Sol. General, E. C. Agarwala and Girish Chandra for the respondents (in W.P. 565/77).

V. M. Tarkunde, P. M. Parekh for the Intervener (in W.P. No. 565/77).

The following Judgments of the Court were delivered: KRISHNA IYER, J.-The province of prison justice, the conceptualization of freedom behind bars and the role of judicial power as constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant.

Therefore, explicative length has been the result; and so it is that, with all my reverence for and concurrence with my learned brethren on the jurisdictional and jurisprudential basics they have indicated, I have preferred to plough a lonely furrow.

The Core-questions.

One important interrogation lies at the root of these twin writ petitions: Does a prison setting, ipso facto, out- law the rule of law. lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement, and (to 409

change the mataphor) if there is no total eclipse, what luscent segment is open for judicial justice ? Three inter- related problems project themselves: (i) a jurisdictional dilemma between 'hands off prisons' and 'take over jail administration' (ii) a constitutional conflict between detentional security and inmate liberties and (iii) the role of processual and substantive reasonableness in stopping brutal jail conditions. In such basic situations, pragmatic sensitivity, belighted by the Preamble to the Constitution and balancing the vulnerability of 'caged' human to State torment and the prospect of escape or internal disorder, should be the course for the court to navigate I proceed to lay bare the broad facts, critically examine. the legal contentions are resolve the vital controversy which has profound impact on our value system.

Freedom is what Freedom does-to the last and the least- Antyodaya.

Two petitines-Batra and Sobraj-one Indian and the other French, one under death sentence and the other facing grave charges, share too different shapes, the sailing and arrows of incarceratory fortune, but instead of submitting to what they describe as shocking jail injustice, challenge, by separate writ petitions, such traumatic treatment as illegal. The soul of these twin litigations is the question, in spiritual terms, whether the prison system has a conscience in constitutional terms, whether 2 prisoner, ipso facto, forfeits person- hood to become a rightless slave of the State and, in cultural terms, whether man-management of prison society can operate its arts by 'zoological'

strategies. The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against to facto solitary confinement, pending his appeal, without to jure sanction.

And the complaint of Sobraj is against the distressing disablement, by bar fetters, of men behind bars especially of undertrials, and that for unlimited duration, on the ipse dixit of the prison 'brass'. The petitioners, seek to use the rule of law to force open the iron gates of Tihar Jail where they are now lodged, and the Prison Administration resists judicial action, in intra-mural matters as forbidden ground. relying on sections 30 and 56 of Prisons Act, 1894 (the Act, hereafter). The Petitioners invoke articles 14, 21(and 19, in the case of Batra) of The Constitutional.

The paramount law. Prison discipline and judicial oversight.

The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable, but teasing intrusion into administrative discretion is legal anathema, 410

absent breaches of constitutional rights or prescribed procedures. Prisoners have enforceable liberties devalued may be but not demonetized; and under our basic scheme, prison Power must bow before judge Power if fundamental freedoms are in jeopardy. The principle is settled, as some American decisions have neatly put it.(').

"The Matter of internal management of prisons or cor rectional institutions is vested in and rests with the hands of those institutions operating under statutory authority and their acts and administration of prison discipline and over all operation of the institution are not subject to court super vision or control absent most- unusual circumstances or absent a violation or a constitutional right." But Corwin notes.(2)

"Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution-overcrowding, understaffing. unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eight Amendment ban on

''cruel and unusual punishments."

The hands-off' doctrine is based on the fallacious foundation stated in 1871 in Ruffin v. Commonwealth: "He has, as a consequence of his crime, not only for feited his liberty, hut all his personal rights except these which the law in its humanity accords to him. He is for the time being, the slave of the State."(8) During the century that followed, the American courts have whittled away at the doctrine and firstly declared in Jordan(4) that when the responsible prison authorities.... have abandoned elemental con- (1) Federal Reporter 2d. Series, Vol. 386, p. 684;

Donnel Douglas v. Maurice H. Sigler.

(2) Supplement to Edward S. Corwin's. The Constitution p. 245.

(3) 62 Vs . (21 Gratt) 790, 796 (1871) (4) 257 Fed. Suppl. 674 Jordan l.. Fitzharris (N. D.

Cal. 1966) 411

cepts of decency by permitting conditions to prevail of a shocking and debased nature., the courts must intervene promptly to restore the primal rules of a civilized community ill accord with the mandate of the Constitution of the United States.

In Coffin V. Reichard the court was persuaded to intervene when, while lawfully in custody a prisoner is deprived of some right the B, loss of which makes his imprisonment more burdensome than the law permits: "When a man, possesses a substantial right, the Courts will be diligent in finding a way to protect it.

The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights.

In John v.Dys, the (Court again held it preferable

"that a potentially dangerous individual be set free than the least degree of and impairment of an individuals's basic constitutional rights be permitted. Thus, the constitutionally of imprisonment, its duration, and conditions Can be validity tested by means of habeas corpus.

The harshest blow to the old `hands-off' doctrines was struck by Manree v. Pepa, 365 US 167, 5 L.Ed. 2d,, 492 (1961).

Where the court insisted on ``civilized standards of humane decency" and interdicted the subhuman condition which could only serve to destroy completely the spirit and undermine the sanity of the prisoner.

By l 975, the United states Supreme Court sustained the indubitable proposition that constitutional rights did not desert convicts but dwindled in scope. A few sharp passages from Eve Pall(1) opinions and some telling observations from Charles Wolff(2) nail the argument the prisioners the non- persons.

Mr. Justice Steward. who delivered the opinion of the Court in Eve Pell observed "Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue involves a regulation limiting one of several means of communication by an inmate, the institutional objectives furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to serve these interests are relevant in gauging the validity of the regulation."

(1) 417 US 817 41 Ed. 2d 495.

(2) 41 L. Ed. 2d. 935.

10-526SCI/78 412

Mr. Justice Douglas. in his dissenting view, stated

'prisioners are still 'persons' entitled to all constitutional...

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