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TMI Blog1979 (12) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ave daunted. The finest hour of justice comes when court and counsel constructively collaborate to fashion a relief in the individual case and fathom deeper to cure the institutional pathology which breeds wrongs and defies rights. Here, the individual is a prisoner whose anus was allegedly pierced with a warder's baton and the institution is the Tihar Prison, right in the capital of the country and under the nose of the Home Ministry. The Perspective This case is revelatory of several sins in this central penitentiary. 'Something is rotten in the State of Denmark. The constitutionaI imperative which informs our perspective in this habeas corpus proceeding must first be set out. The rule of law meets with its Waterloo when the State's minions become law-breakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost vis a vis human rights in prison situations. When prison trauma prevails, prison justice must invigilate and hence we broaden our 'habeas' jurisdiction. Jurispru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral brought this key-note thought to our notice in the matchless diction of Sir Winston Churchill and briefly referred to in Batra in a speech seventy years ago: The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State-a constant heart searching by all charged with the duty of punishment a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards the discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it. Truly, this is a perspective-setter and this is also the import of the Preamble and Art 21 as we will presently see. We are satisfied that protection of the prisoner within his rights is part of the office of Art. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al justice contribution. The enthusiastic work done in the case by the young lawyer, Shri Mudgal, assisting Dr. Chitale, deserves our commendation, even as the unreserved support rendered to the Court by Shri Sachthey is in the good tradition of the Bar. Back to the facts. One Central episode round which the skein of further facts is wound is beyond doubt, viz. that Prem Chand, the prisoner, sustained serious anal injury on or about August 26, 1979, because a rod was driven into that sore aperture to inflict inhuman torture. The contemporaneous entry in the Jail Hospital register reads: One prisoner Prem Chand s/o Pyara Lal has developed tear of anus due to forced insertion of stick by someone,. He require surgical repair and his bleeding has not stopped. He is to go to Irwin Hospital casualty immediately. Remarks of Superintendent. Noted 27 August, 79 sd D.S. 1.2.35 p.m. The prisoner's later narration to the doctor in the Irwin Hospital corroborates the case. The unsuccessful and unworthy attempts, presumably by overawing the prisoner and even the doctor, and other dubious devices. which we do not now scan, to do away with this G. primary incriminating factor by offering incred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lurid happenings in a premier correctional institution of the nation. We deplore the indifferent affiants omnibus approval of every official conduct, whereas we should, instead have expected Government, which sincerely swears by human rights and whose political echelons in succession, over the decades, are not strangers to the actualities in these detention campuses to have put aside the tendency to white-wash every action with an official flavour. A Where human rights are at stake prestige has no place. After the prisoner was subjected to brutal hurt he was removed to the jail hospital and later to the Irwin Hospital but on his re-transfer he was neglected; but we do not pursue the identity of the culprit or the crime or the treatment since a police investigation is under way. Nevertheless, we cannot but remark that whatever damage might have been done upto now, .. second investigation by a C.B.I. Officer is justified, if truth has been suppressed. Dr. Chitale pointed out certain poignant facts such as the prisoner himself having been pressured into statements contrary to the case of anal infliction. We do not make comments on them although we are unhappy at the way the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Administration, was not as bad as a solitary cell, although Dr. Chitale says that this was similar to the type of insulated confinement condemned as unconstitutional be this Court in Sunil Batra's case (supra). Coming to the competing version put for ward by the prison officials through the counter-affidavit of the Under Secretary, the story, even if true, is strongly suggestive of a mafia-culture prevasive in the Tihar prison. A background of the ethos of the campus may be gleaned from portions of the report of the Superintendent, Central Jail, Tihar, made by him with reference to the alleged torture which is the subject matter of this case. A number of prisoners in the Tihar Jail are habitual offenders, professional criminals who have been inmates of the jail from time to time. A number of the said prisoners are rarely visited by their relatives due to the fact that they do not want to associate with such persons. It has been seen that such prisoners are mainly visited by other professionals or habitual offenders in the field with whom they have had former associations.... It has been noticed these types of prisoners have been able to develop a certain report with some of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uption. And to cap it all, there occurs the contamination of pre-trial accused with habituals and "injurious prisoners of international gang." The crowning piece is that the jail officials themselves are allegedly in league with the criminals in the cells. That is, there is a large network of criminals, officials and non-officials in the house of correction ! Drug racket, alcoholism, smuggling, violence, theft, unconstitutional punishment by way of solitary cellular life and transfers to other jails are not uncommon. The Administration, if it does not immediately have the horrendous situation examined by an impartial, authoritative body, and sanitize the campus, complacent affidavits of Under Secretaries and glittering entries from dignitaries on their casual visits, cannot help. While the Establishment sought to produce before the Court extracts from the Visitors' Book to show that many impartial and distinguished persons had complimented the jail authorities on the way managed the prison, Dr. Chitale placed before us some internal evidence from the materials on record, supplemented strongly by personal observations recorded while he was an internee in this very prison by Shri Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had inclined the Government at least to appoint an Inquiry Commission to acquaint itself with the criminal life-style of correctional institutions. The higher officials also have their finger in the pie, if Nayar were veracious: 'Perhaps the way almost everyone had his cut was most evident in our milk supply. It came in bulk to the main gate (phatak) there, enough milk for the top officials was taken out of the cans, which were then topped up with water. And as the cans moved to the wards, all those who handled hem appropriated their share, again topping up with water. Even more shocking than the corruption was the ingenious "slave system" we found in the jail. The slaves were buys between ten and eighteen employed as 'helpers", and there were scores of them. They cooked, washed utensils, cleaned rooms, fetched water and did much back breaking labour to "help" the men who were paid to do these chores. They would be woken up before 6 a.m. to prepare the morning tea and would be allowed to sleep around 10 p.m. after scrubbing the pots and pans-they were herded into a ward which had no fan and no proper sanitary facilities, but was always well lit, with many bulbs on all night, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Law Review, the view has been expressed that beyond the conventional blinkers, courts have been to examine the manner in which an inmate is held or treated during the currency of his sentence. Similar is the thinking expressed by other writers, R. J. Sherpa in "The Law of Habeas Corpus" (1976) Edn. Juvenal, Satires in 72 Yale Law Journal 506 (1963). In American Jurisprudence there is a pregnant observation: The writ is not and never has been a static, narrow formalistic remedy. Its scope has grown to achieve its purpose-the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty. Corpus Juris, 2d, Vol. 39, page 274, para 7 strikes a similar note, away from the traditional strain. The courts in America have, through the decisional process, brought the rule of law into the prison system pushing back, protanto, the hands-off doctrine. In the leading case of Coffin v. Richard the Court of Appeal observed, delineating the ambit and uses of the writ of habeas corpus: The Government has the absolute right to hold prisoners for offences against it but it also has the correlative duty to protect them against assault or injury from an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s had a most beneficial effect. We think that these programmes have been beneficial not only to the inmates but to the students, the staff and the courts. Incidentally, the presence of law students at the elbow of the prisoner has a preventive effect on ward and warden. The content of our constitutional liberties being no less, the dynamics of habeas writs they developed help the judicial process here. Indeed. the full potential of Arts. 21, 19, 14, after Maneka Gandhi (supra), has been unfolded by this Court in Hoskot and Batra. Today, human rights jurisprudence in India has a constitutional status and sweep, thanks to Art. 21 so that this Magna Carta may well toll the knell of human bondage beyond civilised limits. The supplementary statement of the Superintendent of the Central Jail (partly quoted earlier) hair-raising when we find that far from rehabilitation, intensification of criminality is happening there and the officials are part of this sub-culture. We, certainly do not wish to generalize but do mean to highlight the facts of life behind the high walls as demanding constitutional and administrative attention. Homage to human rights, if it springs from the heart, calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we deal with the arguments within the larger spread-out of the case. Rulings of this court have highlighted the fact that the framers of our Constitution have freed the powers under Art. 32 from the rigid restraints of the traditional English writs. Flexible directives, even affirmative action moulded to grant relief may realistically be issued and fall within its fertile width. The jurisdictional dimension is lucently laid down by Subba Rao, J. in Dwarkanath case: This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature" for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l jurisdiction. The jurisdictional reach and range of this court's writ to hold prison caprice and cruelty in constitutional leash is in contentable, but teasing intrusion into administrative discretion is legal anathema absent breaches of constitutional rights or prescribed procedures. The U.S. Supreme Court, in like situations, has spoken firmly and 'humanistically, and these observations have the tacit approval of our Court in Batra's case. Justice Douglas put it thus. Prisoners are still 'persons' entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process. Justice Marshal strongly seconded the view: I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the interest of inmates in freedom from-imposition of serious discipline is a 'liberty' entitled to due process protection. We, therefore, affirm that where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 21 would not be satisfied. Hoskot applied the rule in Maneka Gandhi (supra) to a prison setting and held that "one component of fair procedure is natural justice". Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the court armed with the Constitution. The weapon is 'habeas', the power is Part III and the projectile is Batra, No iron curtain can be drawn between the prisoner and the Constitution. It is, therefore, the court's concern, implicit in the power to deprive the sentences of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical R; infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the. sentence the Prison Establishment will be called to order F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has made court and counsel benignly turn the judicial focus on the future so that further mischief may not be suffered in incarceration. There is little doubt that barbarities like bar betters and hand-cuffs were recklessly being practised either on account of ignorant unconscionableness or willful viciousness in several detention camps. Many of the victims are poor, mute, illiterate, desperate and destitute and too distant from the law to be aware of their rights or ask for access to justice, especially when the running tension of the prison and the grisly potential for zoological reprisals stare them in the face. So it is for the court to harken when humanity calls, without waiting for particular petitions. Like class action, class remedies have pro bono value. The court-the learned Solicitor General underscored this constructive approach-must not wait for a stray petition from some weeping inmate and give the little person a little relief in the little case but give the nation, its governments, prison establishments and correctional departments, needed guidance and also fill with hope the hearts of those who cherish human rights that the courts are, after all, sentinels on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, 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 conclusion. 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 conclusions. At the outset, we notice the widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners. Access to law postulates awareness of law and activist awareness of legal rights in the condition for seeking court justice. So the first need in the Juristic twilight is for the State to produce and update a handbook on Prison Justice, lucid, legible for the lay, accurate, compre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 absence of remedial jurisprudence. Law is not an omnipotence in the sky but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bull's eye. We have made it clear . ' that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led upon to defend persons hidden by the law, is to evolve a positive culture and higher consciousness and preventive mechanisms, sensitized strategies and humanist agencies which will bring healing balm to bleeding hearts. Indeed, counsel on both sides carefully endeavoured to help the Court to evolve remedial processes and personnel within the framework of the Prisons Act and the parameters of the Constitution. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive ineffect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Art. 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will bearbitrary, under Article 14, if it is dependent on unguided discretion, unreasonable, under Art. 19 if it is irremediable and unappealable and unfair, und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictimising a prisoner by forcing on him particularly harsh and degrading 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 asylum. Section 27 (2) and (3) of the Prisons Act states: 27. The requisitings of this Act with respect to the separations of prisoners are as follows: (1) xx xx (2) in a prison where male prisoners under the are of twenty-one arc confined, means shall be provided for separating them 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 The materials we have referred to earlier indicate slurring over this rule and its violation must be visited with judicial correction and punishment of the jail staff. Sex excesses and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participants' privacy. Thus, although there may be current limitations on the possible use of the Constitution on visitation by family and friends, public policy should dictate substantial improvements in this area, in any event. We see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, t subject to considerations of security and discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners' kit of rights and shall be respected. Parole, again, is a subject which is as yet unsatisfactory and arbitrary but we are not called upon to explore that constitutional area and defer it. Likewise, to fetter prisoners in iron is an inhumanity unjustified save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice. And yet this unconstitutionally is heartlessly popular in many penitentiaries so much so a penitent law must proscribe its use in any but the gravest situation. These rights and safeguards need a machinery. The far internal invigilation and independe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the prison inmates. Their behaviour often causes friction and fear but when their doings are impeached, the institutional defence mechanism tends to protect them from top to bottom. So much so, injustice escapes punishment. In this context it is apt to quote David Rudovsky: 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 doub1e 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 of prison library, or the potentially more serious matter of prison discipline and punishment, the guard of the block holds ultimate power over the prisoner. Complete discretion in the context of prison life where no remedies exist to correct it, can be catastroph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreover, when a wrong is done inside jail the judicial visitor is virtually a peripatetic tribunal and sentinel, at once intramural and extra-mural, observer, receiver and adjudicator of grievance. What then. are prisoner Prem Chands' rights, in the specific set t ng of this case, where the complaint is that a jail warder, for pernicious purposes, inflicted physical torture ? The Punjab Prison Manual clearly lays down the duties of District Magistrates with reference to Central Jails. Para 41 (l) and (3) read thus: 41. (l) It shall be the duty of the Magistrate of the district from time to time to visit and inspect jails situate within the limits of his district and to satisfy himself that the provisions of the Prisons Act, 1894, and of all rules, regulations, directions and orders made or issued thereunder applicable to such jail, are duly observed and enforced. xx xx xx (3) A record of the result of each visit and inspection made, shall be entered in a register to be maintained by the Superintendent for the purpose. Para 42 is also relevant: 42. In the absence of the Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 44(2). In the event of non-compliance he should immediately inform Government about such disobedience and advise the prisoner to forward his complaint to the High Court under Art. 226 together with a copy of his own report to help the High Court exercise its habeas corpus power. Indeed, it will be practical, as suggested by the learned Solicitor General, if the District Magistrate keeps a grievance box in each ward to which free access shall be afforded to every inmate. It should be kept locked and sealed by him and on his periodical visit, he alone, or his surrogate, should open the box, find out the grievances, investigate their merits and take remedial action, it justified. Chapter V of the Manual deals with visitors who arc an important component of jail management. Para 47 specially mentions District & Sessions Judges, District Magistrates, Sub-Divisional Magistrates and Superintendent of Police as members of the Board of Visitors. In fact, Sessions Judges arc required to visit the jails periodically-the District Magistrates and Sub Divisional Magistrates and magistrates subordinate to them and others appointed by them in this behalf are to visit jails in their jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or the Supreme Court must be apprised of the grievance so that habeas corpus may issue after due hearing. Para 53 is important in this context and we reproduce it below: 53. All visitors shall be afforded every facility for observing the state of the jail, and the management thereof, and shall be allowed access under proper regulations, to all parts of the jail and to every prisoner confined therein. Every visitor should have the power to call for and inspects any book or other record in the jail unless the Superintendent, for reasons to be recorded in writing, declines on the ground that its production is undesirable. Similarly, every visitor should have the right to see any prisoner and to put any questions to him out of the hearing of any jail officer. E There should be one visitor's book for both classes of visitors, their remarks should in both cases be forwarded to the Inspector General who should pass such orders as he thinks necessary, and a copy of the Inspector-General's order should be sent to the visitor concerned. Paras 53-B and 53-D are not only supplementary but procedurally vital, being protective provisions from the stand-point of prisoners. We except them her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als of this ruling to the ken of the jail people. The stress that we lay is on the need of the Court to be dynamic and diversified in meeting out remedies to prisoners. Not merely the contempt power but also the power to create ad hoc, and use the services of, officers of justice must be brought into play. In this very case, Dr. Chitale, as amicus curiae, was so authorised, with satisfactory results. American juristic thought has considered similar action: by courts using Masters-Primarily factfinders for the court; Receivers-Primarily hold, manage, or liquidate property; "Special" Masters-responsible for multiple functions such as fashioning a plan and assisting in its implementation; Monitors-responsible for observing the implementation process and reporting to the court; and Ombudsmen-responsible for hearing inmate complaints and grievances, conducting investigations and making recommendations to the court. Courts which have utilised some of these special officers including; Hamilton v Schiro, 388 F. Supp. 1016 (E.D.La. 1970); and, Jackson v. Hendrick 321 A. 2d 603 (Pa. 1974) (Special Masters); Wayne County Bd. Of Comm'rs., Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s our constitutional law, now implicit in Art. 19 itself. Rehabilitation is a prized purpose of prison 'hospitalization'. A criminal must be cured and cruelty is not curative even as poking a bleeding wound is not healing. Social justice and social defence-the sanction behind prison deprivation-ask for enlightened habilitative procedures. A learned writer has said: The only way that we will ever have prisons that operate with a substantial degree of justice and fairness is when all concerned with that prison-staff and prisoners alike-share in a meaningful way the decision-making process, share the making of rule and their enforcement. This should not mean three "snitches" appointed by the warden to be an "inmate advisory committee". However, if we are to instill in people a respect for the democratic process, which is now the free world attempts to live, we are not achieving that by forcing people to live in the most etalitarian institution that we have in our society. Thus, ways must be developed to involve prisoners in the process of making decision that affect every aspect of their life in the prison. The Standard Minimum Rules, put out by United Nations agencies also accent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries lend optimism to techniques of broadening awareness, deepening consciousness and quietening the psychic being. It is of seminal importance to note that the Tamil Nadu Prison Reforms Commission (1978-79) headed by a retired Chief Justice of the High Court of Patna, working with a team of experts. has referred with approval to successful experiments in Transcendental Meditation in the Madurai Central Prison: Success has been claimed for this programme. It is reported that there is "reduction of anxiety and fear symptoms, greater flexibility in dealing with frustration, increased desire to care for others, and ability to interact in group situations viz. rational rather than purely aggressive means. Some in mates reported spontaneous reduction in clandestine use of alcohol and ganja; and even cigarette smoking was less. Prison authorities informed us that they noticed personality changes in some of these prisoners, and that they now had the calm and pleasant exchanges with these inmates. Their behaviour towards others in the prison and relationship with prison authorities also changed considerably". There is a proposal to ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. G 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. 3. Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for inter views, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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 stated and directed constitute the mandatory 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 not fix any specific time limit except to indicate the urgency of their 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 k inmates. Periodical jail bulletins stating how improvements and habilitative programmes 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 of the Prisons Act. 2. The Slate shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity community contact and corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly only because the prisoners themselves 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 which are now guaranteed by the courts are often illusory for many prisoners. Implementation and enforcement of these rights rest primarily in the hands of prison officials. Litigation is costly and time- consuming, and few lawyers have volunteered their service in this area. Thus even 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 constitutional obligation to the invisible mortals incarcerated by it and legislatively and administratively re-make a Prison Code adhering to the high values of the Preamble. Over a hundred years ago (1870)- " .... some American prison administrators assembled to discuss their common p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... happy 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 inference, but we are taken aback when the Assistant Public Prosecutor has given an opinion which, if we make presumption in his favour, 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. B We allow the petition and direct a writ to issue, including the six mandates and further order that a copy of it be sent for suitable action t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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