1978 (8) TMI 228

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..... 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 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 'cag .....

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..... 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 .....

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..... e 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." 10-526SCI/78 Mr. Justice Douglas. in his dissenting view, stated 'prisioners are still 'persons' entitled to all constitutional rights unless their liberty has been constitutional by curtailed by procedures that satisfy all the requirements of due process, (emphasis, added). In the later case of charles Wolff, the court made emphatic statements driving home the same point. For instance, Mr. Justice White, who spoke for the court, observed: "Lawful imprisonment necessarily makes unavailable many. rights and privileges of the ordinary citizen retraction in by the considerations underlying our penal system. But though his rights may be diminished by environment, prisoner is .....

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..... m must censor the argument of unaccountable prison autonomy. 'Dangerousness' as a cover for police and prison atrocities is not unusual, as a recent judicial enquiry by Mr. Justice Ismail in a 'Tamil Nadu prison indicates: "The black hole of Calcutta is not a historical past but a present reality. The Report finds the detenus were deliberately lodged in the nineth block which was previously occupied by leprosy prisoners. on the night of February 2, "there were brutal, merciless and savage beatings of the detenus in the nineth block", earlier in the afternoon, the Chief Head Warder went to the block and noted down the names of the detenus and the cells in which they were locked up. The exercise was undertaken. The Judge finds that "the beating of the detenus that took place on the night of February 2, 1976 was a premeditated, pre-planned and deliberate one and not undertaken on the spur of the moment either because of any provocation offered by the detenus to go into the cells as contended by the jail officials" (other lurid judicial reports from other States also have appeared. After all, though the power vests in the Superintendent, it is t .....

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..... Legislatures, whose members? over the decades, are not altogether strangers to the hurtful features of jails, are perhaps pre-occupied with more popular business than concern for the detained derelicts who are a scattered, voiceless, noiseless minority. Although neither of these writ petitions is a class action in the strict sense, each is representative of many other similar cases I think these 'martyr' litigations possess a beneficient potency beyond the individual litigant, and their consideration on the widely- representative basis strengthens the rule of law. Class actions. community litigations, representative suits, test cases and public interest proceedings are in advance on our traditional court processes and faster people's vicarious involvement in our justice system with a broadbased concept of locus standi so necessary in a democracy where the masses arein many senses weak. Another hopeful processual feature falls for notice. Citizens for Democracy, an organisation operating in the field of human rights, has been allowed to intervene in the sobraj case and, on its behalf, Shri Tarkunde has made legal submissions fuelled by passion for jail reforms. The in .....

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..... r achieving the same basic purpose." (Shelton v. Tucker, 364 US 476 (1950) at p.468)(1). Karuna is a component of jail Justice. Ex. post facto justification of prison cruelty as prevention of disorder and escape is often a dubious allegation. Another factor often forgotten, while justifying harsh treatment of prisioners, is the philosophy of rehabilitation. The basis is that the custodial staff can make a significant contribution by enforcing the rule of prison law and preparing convicts for a law-abiding life after their release- mainstreaming, as it is sometimes called. Mr. Justice, Stewart in Pall adverted to the twin objectives of imprisonment. 'An important function of the correction system is the deterrence of crime. The premise is that by confining criminal L 1) offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offences. This isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system .....

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..... aions only to drive home the imperative of freedom-that its deprivation, lay the state, is validated only by a plan to make the sentence more worthy of that birthright. There is a spiritual dimensional to the first page of our Constitution which projects into penology." All this adds up to the important proposition that it is a crime of punishment to further torture a person undergoing imprisonment, as the remedy aggravates the malady and thus cases to be a reasonable justification for confiscation of personal freedom and is arbitrary because it is blind action not geared to the goal of social defence, which is one of the primary ends of imprisonment. It reversed the process by manufacturing worse animals when they are released into the mainstream of society. Roger G. Lanphear, in a recent study. has quoted a telling letter from a prisoner which makes the poignant point.( Regers C.. Lamphear Freedom From Crime through TM- Sidhi Progress pp. 46-47.) Dear Mrs. Stender: You cannot rehabilitate a man through brutality and disrespect. Regardless of the crime a man may commit, he still is a human being and has feeling. And the main reason most inmates in prison today disrespect th .....

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..... that, so long as judges are invigorators and enforcers of constitutionality and performance auditors or legality, and convicts serve terms in that grim microcosm called prison bu the mandete of the court, a continuing institutional responsibility vests in the system to moniter in the incarceratory process and prevent security 'excesses'. Jailors are bound by the rule of law and cannot inflict supplementary sentences under disguises or defeat the primary purposes of imprisonment. additional torture by forced cellular solitude or iron immobilisation- that is the complaint here-stands the peril of being shot down as lunreasonable, arbitary and is perilously near unconstitutionality. Court's interpretative function when faced with invalidatory alternative. Batra puts in issue the constitutionality of S. 30 (2) of the Prisons Act, 1894 (the Act, for short) while Sobhraj impugns the vires of S.56. But the Court does not 'rush into demolish provisions where judicial endeavour, amelioratively interpretational, may achieved both constitutionality and compassionate resurrection. The salutary strategy of sustaining the validity of the law and softening its application was, w .....

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..... and," with functional flexibility, explore the meaning of meaning to adop that construction which humanely constitutionalizes the statute ;11 question. Plainly stated we must endeavour to interpret the words in sections 30 and 56 of the Prisons Act and the paragraphs of' the Prison Manual in such manner that while the words belong to the old order, the sense radiates the new order. The luminous guideline on Weems v. United states sets our sight high : "Legislation, both statutory and constitutional is enacted, it is true, from an experience of evils, but- its general language should not, therefore, be necessarily confined to the form that civil had therefore, taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiary true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it". The future is their care, and provisions for events of good and bad .....

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..... for the power to prevent disproportionate punishment is to be exercised only when the punishment shocks public feeling. With thin limitation, the progressive construction of this clause laid down by this case seems desirable." (emphasis added) The jurisprudence of statutory construction, especially when vigorous break with the past and smooth reconciliation with a radical constitution value-set are the object, uses the art of reading down and reading wide, as part of interpretational engineering. Judges are the mediators between the social tenses. This Court in R. L. Arora v. State of Uttar Pradesh & Ors([1964] 6 S.C.R. 784.) and in a host of other cases, has lent precedential support for this proposition where that process renders a statute constitutional. The learned Additional Solicitor General has urged upon us that the Prisons Act (Sections 30 and 56) can be vehicle of enlightened value if we pour into seemingly fossilized words a freshness of sense. "It is well settled that if certain provisions of law construed in one way will be consistent with the Constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of th .....

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..... e death sentence still pends he is being subject to solitary confinement which is contrary to the provision of the Penal Code, the Criminal Procedure Code, the Prison Act an(l Articles 14, 19 and 12 of the Constitution. The Sessions Court of Delhi held him guilty of a gruesome murder compounded with robbery and awarded the capital penalty, way back in January, 1977 . Until then, Batra was class prisoner eligible for amenities which made his confinement bearable and companionable. But once the death penalty was pronounced, the prison superintendent promptly tore him away from fellow human, stripped him of the B class facilities and locked him up in a single cell with a small walled yard attached, beyond the view and voice of others save the jail guards and formal visitors in discharge of their official chores and a few callers once hl a blue moon. The prisoner filed an appeal against his conviction and sentence to the High Court, which also heard the reference for confirmation of the death sentence unclear sec. 395 of the Criminal Procedure Code (for short, the Code). In the meanwhile-and it proved a terribly long while-he was warehoused, as it were in a solitary cell and kept subst .....

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..... rturesome for tears, even in our ancient land of silent mystics and lonely cavemen. For the great few, solitude sometimes is best society but for the commonalty the wages of awesome seculsion, if spread over long spells, is insanity. For the fevered life of the modern man, more so under the stress of sentence, solitude is terror and cellular vacuum horror. Just think not of the contemplative saint but of the run of the mill mortal. Cage his lonely person and monitor his mind and mood with a sensitive understanding. Then you know that moments bear slow malice; hours hang heavy with ennui; days drop dead, and lonely weeks wear a vicious stillness; for sure. weary months or singleness, with monotonous nights, made more hurtful by the swarms of mosquitoes singing and 'stinging, and in many cells. by the blood-thirsty armies of bugs, invisibly emerging from nocturnal nowhere, to hide and bite, make for lunacy. Time cries halt and the victim wonders, is death a better deal? Such is the torture and tension of the solitary cell, picturised by counsel. The Tihar Jail is the scene and a glimpse of it is good. Law is not a brooding omnipresence in the sky but a behavioural omnipotence on .....

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..... nement'. Probably, if small windows with iron bars were provided between one cell and another, the prisoners could talk to each other also so that the confinement would no longer be solitary despite the fact that they are kept in separate adjoining cells. The petitioner did not complain of any discomfort other than being kept in 'solitary confinement' and being made to sleep on the floor. He asked us to see another part of the prison where undertrials were kept. When we visited that part, we found dormitories provided there for under-trial prisoners who had beds there and their own bedding and clothing. They also had, in that part of the prison, radio sets, some of which belonged to the prisoners no others to the jail. The under trials were allowed to mix with each other, play games or do what they wanted within a compound." (emphasis, ordered). ' The basic facts hearing upon the condition of the prisoner in his cell are not denied although certain materials have been averred in the counter affidavit to make out that the mental mayhem imputed to the system vis a vis the petitioner is wild and invalid. For updating the post-sentence saga of Batra it is necessa .....

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..... existing provisions of Jail Manual, Armed Guard P cannot be posted to guard the prisoners. The Warder guard has to guard them bare handed. Tn case the prisoners under sentence to death are allowed to remain outside the cells, then it would be next to impossible for the guard to control them bare handed Under the provisions of the new Cr. P.C. the Capital Punishment is awarded only t(h the exceptionally few prisoners because now it is the exception rather than rule, and the learned Courts have to record special reasons for awarding the extreme punishment. This implies that the prisoners under sentences of death are exceptionally dangerous prisoners, who do require maximum security measures while confined in Jail. Under the existing arrangements in the Jail there can be no substitute to the confinement treatment of such prisoners otherwise than in the cells. After having been awarded the capital punishment the prisoners sentenced to death harbour feelings of hatred against the authorities. If such prisoners are allowed to remain outside the cells then there is every possibility of incidents of assaults etc. On the fact (sic) of such prisoners. ..... If the prisoners sentenced to deat .....

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..... t the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears ? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Art. 19) become chimerical constitutional claptrap. A Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to prescribe and prescribe, humanize and civilize the life-style within the carcers. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. For example, public addresses by prisoners may be put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry or drawing cartoons are violative of Article 19. So also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or women sentenced for a term is doing violence to Part III. So Batra pleads that until decapitation he is human and so .....

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..... d in indubitable breadth. So the law is that for a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. The omens are hopeful for imprisoned humans because they can enchantingly invoke Maneka and, in its wake Arts. 14, 19 and even 21, to repel the deadening impact of unconscionable incarceratory inflictions based on some lurid legislative text or untested tradition. As the twin cases unfold the facts, we have to test the contentions of law on this broader basis. Prisons are built with stones of Law' (sang William Blake) and so, when human rights are hashed behind bars, constitutional justice impeaches such law. In this sense. courts which sign citizens into prisons have an onerous duty to ensure that, during detention and subject to the Constitution, freedom from torture belongs to the detenu. I may project, by way of recapitulation, issues in the two cases. Is Batra or any convict condemned to death-liable to suffer, by implication, incarceratory sequestration, without specific punishment of solitary confinement, from when the Sessions Judge has pronounced capital sentence until that inordinate yet dreadful interregnum en .....

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..... o unreasonable to be intra vires Article 19 and too terrible to qualify for being human law under Article 21? If the penal law merely permits safe custody of a 'condemned' sentence, so as to ensure his instant availability for execution with all the legal rituals on the appointed day, is not the hurtful severity of hermetic insulation during that tragic gap between the first judgment and then fall of the pall, under guise of a prison regulation, beyond prison power ? This epitome, expressed tartly, lays bare the human heart of the problem debated with elaborate legal erudition and compassion at the Bar. These are critical problems which symbolize the appeal to higher values, and inspired by this lofty spirit, counsel have argued. I must, right at the outset, render our need of appreciation for the industry and illumination brought in by Shri Y. S. Chitale, amicus curiae, as he pressed these points of grave portent and legal moment. So am I beholden to Shri Soli Sorabjee, the Additional Solicitor General, who has displayed commendable candour and benign detachment from his brief and shown zealous concern to advance the rights of man, even 'condemned' man, against t .....

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..... r times, put 'murderers' in power who would otherwise have been executed. To universalise is to be unveracious when validation is founded on habituated hunch, not authentic investigation. Once we set our sights clear, we see a string of non- sequitur in the naked assertions of the State and an encore of the folklore of 'dangerousness' surrounding human sentenced to death! The burden of the song? strangely enough, is that solitary confinement is a com- passionate measure to protect the prisoner lest he be killed or kill himself or form a mutual aid society with other condemned prisoners for hera kiri Community life for a death sentence, the social psychology of the Jail Superintendent has convinced him to swear, is a grave risk to himself. So, solitary segregation; The ingenious plea in the counter affidavit is like asserting not only that grapes are sour but n that sloss are sweet. Not only is group life bad for him because he may murder but 'solitary' is a blessing for him because otherwise he may be murdered! To swear that a solitary cell is the only barricade against the condemned men being killed or his killing others is straining credulity to snapping .....

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..... nd the award of death sentence as against life sentence turns on a plurality of imponderables. Indeed, not in frequently on the same or similar facts judges disagree 'on the award of death sentence. If the trial Court awards death sentence the Jail Superintendent holds him dangerous enough to be cribbed day and night. If the High Court converts it to a life term the convict, according to prison masters, must undergo a change of heart and become sociable, and if the Supreme Court enhances the sentence he reverts to wild life! Too absurd to he good! To find a substantial difference in prison treatment between the two 'lifers' and 'condemned' con victs-is to infer violent conduct or suicidal tendency based on the fluctuating sentence alone for which no expert testimony is forth coming. On the other hand, the 'solitary' hardens the criminal, makes him desperate and breaks his spirit or makes him break out of there regardless of risk. In short, it is counter-productive. A few quotes from a recent American study on prisons, hammer home the negativity of the "solitary".( Rogers G. Lamphear: Freedom From Crime through the M. Sidhi. Program, pp. 128-12 .....

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..... ent. My mother would end up crying every time she came to see me, because of my nervousness, which caused my hands to shake, and I had developed a sty in my right eye." When handling the inner dynamics of human action, we must be informed of the basic factor of human` psychology that "Nature abhors a vacuum; and man is a social animal". (Spinoza). In such all area we must expect Brandies briefs backed by opinions of specialists on prison tensions, of stressologists on the etiology of crime and of psychiatrists who have focussed attention on behaviour when fear of death oppresses their patients. A mere administrative officer's deposition about the behaviourial may be of men under contingent sentence of death cannot weigh with us when the limited liberties of expression and locomotion of prisoners are sought to be unreason ably pared down or virtually wiped out by oppressive cell insulation. No medical or psychiatric opinion or record of jail events as a pointer, is produced to prove, even prima facie, that this substantial negation of gregarious jail life is reasonable. Where total deprivation of the truncated liberty of prisoner's locomotion is challenged th .....

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..... ot;threat to themselves, to others, or to the safety and security of the institution. Such a policy is perfectly proper and lawful and its administration requires the highest degree of expertise in the discretionary function of balancing the security of the prison with fairness to the individual con fined. In the case at bar the record reveals that appellant's confinement in segregation is the result of the considered judgment of the prison authorities and is not arbitrary". In the specific cases cited the facts disclose some justification for insulation. "Appellant has indeed, been in segregation for a protracted period, continuously for more than two years prior to the present hearing. However, his record during these separate periods when he was allowed confinement "within the population " of a prison reflects a history of participation, directly or indirectly, in conduct of extreme violence. Although his con duct in segregation has since been entirely satisfactory the G trial court was manifestly correct in determining that appellant has been denied no constitutional right and that the determination of whether appellant presently 'should be conside .....

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..... right to inflict upon his fellow-creatures. I hold this slow and daily tempering with the mysteries of the brain, to be immeasurably worse than any torture of the body; and (1) B. K. Bhattacharya: Prisons, p. 111. (2) Leonard Orland, Justice, Punishment, Treatment, p. 297. because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the Flesh; because its wounds are not upon the surface and it extorts few cries that human ears can hear; thereore, I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay. I hesitate once, debating with myself whether, if I had the power of saying "Yes" or "No". I would allow it to be tried in certain cases, where the terms OF imprisonment were short; but now, I solemnly declare, that with no rewards or Honours could I walk a happy man be neath the open sky by day, or lie down upon bed at night, with the consciousness that one human creature, for any length of time, no matter what lay suffering this unknown punishment in his silent cell, and I the cause or I consenting to it in the least degree." Viewing cellular isolation from a human angle, t .....

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..... he world." Much has been said in The course of the argument about the humanism imparted by interviews and letters. Nehru wrote about the Naini Prison, which retains its relevance for many prisons even today, speaking generally:- "Interviews are only permitted once in three months, and so are letters-a monstrously long period. Even so, many prisoners cannot take advantage of them. If they are illiterate, as most are, they have to rely on some gaol official to write on their behalf: and the latter, not being keen on adding to his other work, usually avoids it. Or, if a letter us written, the address is not properly given and the letter does not reach. Interviews are still more difficult. Almost in variably they depend on a gratification for some good official. often prisoners are transferred to different gaols, and their people cannot trace them. I have met many prisoners who had lost complete touch with their families for years, and did not know what had happened. Interviews, when they do take place after three months or more are most extraordinary. A number of prisoners and their interviewers are placed together on either side of a barrier, and they all try to talk simu .....

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..... were spent as in a dream, punctuated only by the Chief Head Warder's morning and evening rounds to check the lock, the bustling appearance of the matine bringing food and water, or the wardress fumbling with her keys to unlock me to clean my teeth and baths. During the daytime, the key to the gate of the female word was in the custody of a 'duty-warder', one of the hundred and fifty warders in the jail. He was responsible for opening the gate to admit convicts bringing food, the doctor or other persons on essential business. Administration of the jail was in the hands or a staff of Assistant Jailors and clerks, subordinate to the Jailor who had overall responsibility for the day to day running of the prison. He was answerable to the most exalted personage in the jail hierarchy, the Superintend (dent. His unpredictable temper and behaviour were a source of as much exasperation to his subordinates as to ourselves He demonstrated his authority by reversing his previous instructions so many times that in the end nobody was really sure what he wanted. The jail staff operated by by-passing hi n as much as possible so as not to get caught out if he happened to change his mi .....

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..... stures." (2) Eloquent testimony to man's need for belonging,, acceptance, and approval is provided by the experience of small groups of scientists, officer, and enlisted personnel who voluntarily subjected themselves to isolated antartic living for the better part of a year (Robrer, 1961). During this period troublesome individuals were occasionally given the "silent treatment" in which a man would be ignored by the group as if he did not exist. This 'isolation' procedure resulted in a syndrome called the 'long eye', characterized by varying combinations of sleeplessness, outbursts of crying, hallucinations, a deterioration in habits of personal hygiene, and tendency for the man to move aimlessly about or to lie in his bunk staring into space. These symptoms cleared up when he was again accepted by and permitted to interact with others in the group." (3) "The use of the dark or isolation cell-the hangover of the medieval dungeon-known in prison parlance as 'Klondika`, is probably the most universally used prison punishment in 1) David J. Rotman. Historical perspectives-Justice, Punishment, Treatment by Leonard Oreland, 1973, p. 1 .....

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..... est society.( Havelock Ellis, The Criminal, 5th Edn. 1914, r.) Criminological jurists like Dr. Bhattacharya, who was also judge of he Calcutta High Court, take the view that cellular or separate confinement deserves to be condemned: 327. Many penologists in India take exception to the solitary confinement rule. It is hard to differentiate between this as an mode of judicial punishment and by way of a jail punishment for the results are equally disastrous to the physical and mental health of those subjected to them".(1) Yahya Ali. J., in 1947, loll before our constitutional charter Came into being, had expressed himself strongly against 'solitary confinement' and we feel more strongly about it and against it. Our humane order must reject solitary confinement' as horrendous. The learned Judge observed : " Solitary confinement should not be ordered unless there are special features appearing in the evidence such as extreme violence or brutality in the commission of the offence. The only reason given by the Magistrate is that the 'sanctity or home life has become to him (the appellant) a mere mockery and the desire to take what he wants regardless of ownersh .....

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..... rt spells and under ameliorative conditions, the 'solitary' may be kept alive as a disciplinary step. The propositions of law canvassed in Batra's case turn on what is solitary confinement as a punishment and what is non-punitive custodial isolation of a prisoner awaiting execution. And secondly, if what is inflicted is, in effect, 'solitary', does section 30(2) of the Act authorise it, and, if it does, is such a rigorous regimen constitutional. In one sense, these questions are pushed to the background, because Batra's submission is that he is not 'under sentence of death' within the scope of section 30 until the Supreme Court has affirmed and Presidential mercy has dried up by a final 'nay'. Batra has been sentenced to death by the Sessions Court. The sentence has since been confirmed, but the appeal for Presidential commutation are ordinarily precedent to the hangmen's lethal move, and remain to be gone through. is contention is that solitary confinement is a separate substantive punishment of maddening severity prescribed by sections 73 of the Indian Penal Code which Can be imposed only by the Court; and so tormenting is this sentenc .....

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..... ruction we may have to quote the relevant sections and thereafter make a laboratory dissection thereof to get an understanding of the components Which make up the legislative sanction for semi-solitary detention of Shri Batra. Section 30 of the Prisons Act rules: "30 (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession. (2) Every such prisoner, shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under charge of a guard." This falls in Chapter V relating to discipline of prisoners and has to be read in that context. Any separate confinement contemplated in section 30(2) has this disciplinary limitation as we will presently see. If we pull to pieces the whole provision it becomes clear that section 3() can be applied only to a prisoner "under sentence of death". Section 30(2) which speaks of "such" prisoners necessarily relates to prisoners under sentence of dea .....

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..... all" means, in this disciplinary context, "shall be liable to". If the condemned prisoner is docile and needs the attention of fellow prisoners nothing forbids the jailor from giving him that facility. When we move on to Chapter XI we come across Prison Offences which are listed in section 45. Section 46 deals with punishment for such offences. We reproduce the relevant portion: 46. The Superintendent may examine any person touching any such offence, and determine thereupon and punish such offence by (6) imposition of handcuffs of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the Governor General in Council; (7) imposition of fetters of such pattern and weight, in such manner and for such period, as may be prescribed by the rules made by Governor General in Council; (8) separate confinement for any period not exceeding three months; Explanation:- Separate confinement means such confinement with or without labour as secludes a prisoner from communication with, but not from sight of other prisoners, and allows him not less than one hour's exercise per diem and to have his meals in association with one or mor .....

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..... der section .6(8). obviously, disciplinary needs of keeping apart a prisoner do not involve any harsh element of punishment at all. We cannot, therefore, accede to any argument which will upset the scheme or subvert the scale of severity. Section 30(2), understood in the correct setting, plainly excludes any trace of severity and merely provides for a protective distance being maintained between the prisoner under death sentence and the other prisoners, although they are accommodated in the same cell and are allowed to communicate with each other, eat together, see each other and for all other practical purposes continue community life. An analysis of the provisions of the Penal Code and of the Prisons Act yields the clear inference that section 30(2) relates to separation without isolation, keeping apart without close confinement. Whatever the name. the consequence of the 'solitary' regime has been maddening: "So many convicts went mad or died as a consequence of the solitary regime that by the mid-19th century it was generally abandoned..."(1) The 'separate system', the "silent system", the "hole" and other variants possess the same .....

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..... , writing material, meeting family members, and all the good things of life, so long as lie lasts and prison facilities exist. To distort safe-keeping into a hidden opportunity to cage the ward and to traumatize him is to betray the custody of the law Safe custody does not mean deprivation, isolation, banishment from the lenten banquet of prison life and infliction o travails as if guardianship were best fulfilled by making the ward suffer near-insanity. May be, the Prison Superintendent has the alibi of prison usage, and may be, he is innocent of the inviolable values of our Constitution. May be there is something wrong in the professional training and the prison culture. May be, he misconceives his mission unwittingly to help God 'Whom God wishes to destroy, He first makes mad'. For. long segregation lashes the senses until the spirit lapses into the neighbourhood of lunacy. Safe-keeping means keeping his body and mind in fair condition. To torture his mind is unsafe keeping. Injury to his personality is not safe keeping. So, section 366, Cr.P.C. forbids any act which disrupts the man in his body and mind. To preserve his flesh and crush his spirit is not safe keeping. wh .....

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..... entirely secludes the prisoner both from sight of, and communication with, other prisoners." The hard core of such confinement is (a) seclusion of the prisoner, (b) from sight of other prisoners, and (c) from communication with other prisoners. To see a fellow being is a solace to the soul. Communication with one's own kind is a balm to the balm to the aching spirit. Denial of both with complete segregation superimposed, is the journey to insanity. To test whether a certain type of segregation is, in Indian terms, solitary confinement, we have merely to verify whether interdict on sight and communication with other prisoners is imposed. It is no use providing view of or conversation with jail visitors, jail officers or stray relations. The crux of the matter is communication with other prisoners in full view. Bad fellows in misery have heartloads to unload and real conversation between them has a healing effect. Now that we have an Indian conceptualisation of solitary confinement in the Prison Manual itself, lexical exercises, decisional erudition from other countries and legomachic niceties with reference to law dictionaries are supererogatory. Even the backward psychiat .....

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..... rnataka([1977] (3) S.C.R. 393.) and D. K. Sharma v. M. P. State([1976] (2) S.C.R. 289), though not directly on this point, strongly suggest this reasoning to be sound. Section 366 Cr. P.C. has pertinence at this point: "366. (1) When the Court of Sessions passes a sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it be confirmed by the High Court. (2) The Court passing the sentence shall commit the A convicted person to jail custody under a warrant." So it is clear that the sentence of death is inexecutable until 'confirmed by the High Court'. A self- acting sentence of death does not come into existence in view of the impediment contained in section 366(1) even though the Sessions Court might have pronounced that sentence. I go further. Let us assume that the High Court has confirmed that death sentence or has de novo imposed death sentence. Even there is quite a likelihood of an appeal to the Supreme Court and the plenary power of the highest court extends to demolition or the death sentence. Naturally, the pendency of the appeal itself inhibits the execution of the sentence. Otherwise, the .....

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..... if he desires to submit a petition for mercy, it should be submitted in writing within seven days of the date of such intimation. II- If the convicts submit a petition within the period of seven days prescribed by Rule I it should be addresses both to the local Government and to the Governor-General in Council, and the Superintendent of Jail shall forthwith despatch it, in duplicate, to the Secretary to the local Government in the Department concerned. together with a covering letter reporting the date fixed for the execution an(l shall certify that the execution has been stayed pending receipt of the orders of the Governor in Council and the Governors General in Council on the petition if no reply is received within 15 days from the date of the despatch of the petition the Superintendent shall telegraph to the Secretary to the local Government drawing attention to the fact, but he shall in no case carry out the execution before the receipt of the local Government's reply." It follows that during the pendency of a petition for mercy before the State Governor or the President of India the death sentence shall not be executed. Thus, until rejection of the clemency motion b .....

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..... ave made reference. The Judges in the United States have had to deal with the issue and before I wind up on the. legal implications of solitary confinement I may refer to some of them. Punitive segregation is regarded as too harsh that it is limited to no more than 8 days except with special approval of the commissioner of corrections in many American states... The average for this type of punitive incarceration is five days. Now note what the U.S District court states: "This punishment is imposed only after a formal written notice, followed by a hearing before the disciplinary committee." The emphasis on limited periods and hearing before punishment have been built into the procedure for punishment of solitary confinement. This is important when we consider whether any form of harsh imprisonment, whether of solitary confinement or of bar fetters, should not comply with natural justice and be severely limited in duration. Preventive solitude and fetters are an a fortiori case. An Afro-American citizen Sostre, brought a Civil Rights action Sostre v. Rockfeller(2) complaining of solitary confinement otherwise called(l punitive segregation. The year long stay in that seg .....

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..... ce upon which he relied. Finally, in such cases, the high court ruled, an impartial decision-maker is essential The Court holds that plaintiff was, in affect, 'sentenced' to more than a year in punitive segregation with out the minimal procedural drastic punishment upon a prisoner." There has been considerable emphasis by the Additional Solicitor general on the prison setting in truncating processual justice. The U.S. District Court in Sostre had this to say: "The difficult question, as always, is that process was due. In answering that question, we mays not uncritically adopt the holdings of decisions that take color from contexts where the shading are as different from the instant case as the cases we have discussed: As a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the constitution requires that a particular right obtain in a specific proceeding depends upon a 13 - 526 SCI/78 complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all c .....

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..... with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly. Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others. lt may be that there will be occasions when personal or institutional safety are so implicated, that the statement may properly exclude certain items of evidence, but in that event the statement should indicate the fact of the omission. Otherwise, we perceive no conceivable rehabilitative objective or prospect of prison disruption that can flow from the requirement of these statements. We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in the defence when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals". As to the right to counsel Mr. Justice White felt that then the proceedings may receive an "adversary cast", but proceeded to observe: "Where an illiterate inmate is involved, however, or where the complexity of the issu .....

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..... view due process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has had any other form of personal involvement in the case." Mr. Justice Douglas, in his dissent, quoted from an earlier case "Certain principles have remained relatively immutable our jurisprudence. One of these is that where govern mental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so, that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously. We have formalized these protections in the requirements of confrontation and cross-examination............... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases but also in all types .....

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..... 0)) Another passage from Judge Fainberg in the same case deserves our attention: "In this Orwellian age, punishment that endangers sanity, no less than physical injury by the strap, is prohibited by the Constitution. Indeed, we have learned to our sorrow in the rest few decades that true inhumanity seeks to destroy the psyche rather than merely the body. The majority opinion emphasizes that after all Sostre could have obtained release from isolation at my time by agreeing to abide by the rules and to cooperate. Perhaps that is so, but that does not change the case.. The possibility of endless solitary confinement is still there, unless the prisoner 'gives in'. The same observation could be made if Sostre were tortured until he so agreed, but no one would argue that torture is therefore permitted. The point is that the means used to exact submission must be constitutionally acceptable, and the threat of virtually endless isolation that endangers sanity is not." (emphasis, added) Quite a few other decisions of this lesser level courts of the United States have been brought to our notice by counsel in an endeavour to validate or invalidate solitary confinement from .....

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..... aj Case I now switch to the averments in the petition by Sobraj. Chief Justice Beg and his companion Judges including me, it may be right to state here, did incidentally see Sobraj (the other petitioner), standing in chains in the yard, with iron on wrists, iron on ankles iron on waist and iron to link up, firmly rivetted at appropriate places, all according to rules ! The manacled numbers of the Tihar Jail community appear lo be alarmingly large and fluctuating, if we go by the averments in the (1) Harward Civil Right-Civil Liberties Law Review (Vol. ]2) affidavit of the petitioner and the counter affidavit by the State. In January, 1978 according to Sobraj, there were 207 under trial prisoners with bar fetters in Tihar Jail and all of them, exception Sobraj, were Indian citizens, all of them belonging to the 'C' class, which is a poverty sign, and many of them minors ! We are remind of what Douglas, J. Observed in Hicks:(1) "The wanderer, the pauper, the unemployed-all were deemed to be potential criminals.......... I do not see how economic or social statutes can be made a crime any more than being a drug addict can be. " Even the intervener, Citizens for Demo .....

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..... ed of the order'.... Discomfited Sobraj has moved this Court. The disturbing fact of years of pre-trial imprisonment apart, the agonising aspect, highlighted by Dr. Ghatate for the petitioner and by Shri Tarkunde as intervener, is that until the Court sometime ago directed a little relaxation in the rigour of the 'iron' prescription, Sobraj (and how many submissive sufferers like Him there are ?) has been continuously subjected to the torturesome 'bar fetters, through twenty four hours daily and every day of the month, 'religiously' for nearly two years, what with the kindly presumption of innocence jurisprudentially playing upon him in tragic irony. Sobraj bitterly complains of persistence in bar fetters notwithstanding wounds on heels and medical advice to the contrary. The State defends bar fetters statutorily by section 56 of the Prisons Act and realistically as preventive medicine for 'dangerousness' pathology, in exercise of the wise discretion of the Jail Superintendent, overseen by the revisory eye of the Inspector General of Prisons and listened to by Jail Visitors. The bar fetter procedure, denounced by counsel as intolerable, is described .....

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..... uot;It is significant to mention that the undertrial prisoners in the following serious cases who were confined in Tihar Jail were without any fetters:- (i) All undertrial prisoners in Baroda Dynamite case who were also detained under MISA; (ii) All the persons accused in the Hon'ble Chief Justice of India (Shri A. N. Ray's) attempt: (iii)All accused persons in Samastipur Bomb Blast case where the former Railway Minister, Shri L. N. Mishra, was killed; (iv) All accused persons in Vidya Jain murder case; and (v) All accused persons in famous Bank Van Robbery case held at New Delhi; What may have relevance to the criticism of the bar fetters technology running riot in Tihar Jail is another set of circumstances about this high security Jail which was commissioned after Independence (1958). The first is, that a large number of prisoners, a few hundred at times-minors and undertrials too-are shackled day and night four days and months on end by bar fetters-too shocking to contemplate with cultural equanimity. And, this, prima facie, shows up the class character of jail injustice for an incisive sociologist. Practically all these fettered creatures are the poor. Sobraj is .....

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..... onfine them.' Before formulating the heads of argument in the Sobraj case it is necessary to state that the respondent, after a vain effort to secure certain pre-Independence government proceedings of the Punjab, now in Pakistani archives, admitted that it could not make good the validating existence, of the local government's sanction for the instructions of the Inspector General of Prisons, as required by S. 56 of the Act, although such an instruction is found in the Jail Manual. Nothing else, which compels judicial notice is available, and so the rule is not show`n to be valid. Sobraj's grievance is shocking shackling with bar fetters. Iron on wrists, iron on ankles, iron in between, welded strongly that all oppressive 6 Ibs. weight hampers movement, hinders sleep and hurts all the time so much that life is poor purchase. And yet he is in a stage of presumptive innocence and under judicial custody. The basic fact that Sobraj is fettered during the Jail Superintendent's sole discretion is not denied; and he has been enduring this distress for a chronic couple of years with no hope of relief except the unlikely change of heart of the head of the prison. The defence .....

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..... s appeal to me greatly. But when I see the long drawn out agony, of a life spent in prison, I feel that it is perhaps better to have that penalty rather than to kill a person slowly and by degrees. one of the 'lifers' came up to me once and asked me. "What of us lifers ? Will Swaraj take us out of this hell ?" The great problems of law are the grave crises of life and both can be solved not by the literal instruction of printed enactments, but by the interpretative sensitization of the heart to 'the still, sad music of humanity. The humane thread of jail jurisprudence that runs right through is that no prison authority enjoys amnesty for unconstitutionality, and forced farewell to fundamental rights is an institutional outrage in our system where stone walls and iron bars shall bow before the rule of law Since life and liberty are at stake the gerontocracy of the Jail Manual shall have to come to working terms with the paramountcy of fundamental rights. A valuable footnote to this approach may be furnished by recalling how Mahatma Gandhi regarded jails as social hospitals' and Prime Minister(1) Shri Morarji Desai, while he was Home Minister of Bombay wa .....

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..... y; and it is perhaps the one which it is most difficult for even the most conscientious thinker to avoid. For the human reason is incapable of always playing the detective upon itself in this respect; it is its very nature to seize upon some partial conclusion, idea, principle, become its partisan and make it the key to all truth, and it has an infinite faculty of doubting upon itself so as to avoid detecting in its operations this necessary and cherished weakness."(1) Judges must warn themselves against this possibility because the nation's confidence in the exercise of discretionary power affecting life and liberty has been rudely shaken especially when the Court trustingly left it to the Executive. A prison is a sound-proof planet, walled from view and visits regulated, and so, rights of prisoners are hardly visible, checking is more difficult and the official position of the repository of power inspires little credibility where the victims can be political protesters, unpopular figures, minority champions or artless folk who might fail to propitiate arrogant power of minor minions. The learned Additional' Solicitor General commended for our consideration the judic .....

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..... essity compelling fetters. Safe custody is imperilled only where escape probability exists. Such escape becomes a clear and present danger only where the prisoner has by his precedents shown an imminent attempt to escape. Mere violence by a prisoner of bad behaviour or other misconduct which has no reference to safe custody has no relevance to S. 56. Supposing a prisoner were short- tempered, vulgar or even homosexual, his safe custody within the prison is not in jeopardy. His misbehaviour unrelated to security is the only issue then involved and correctional therapy is the prescription. S. 56 is not attracted so long as the safe custody of that prisoner is not shaky. The focus is on his escape and, maybe, on overt and covert attempts in that behalf. Other disorder or vice may deserve disciplinary attention but S.56 is not a nostrum for all administrative aches within jails. The second requirement of S. 56 is that the Superintendent must consider it necessary to keep the prisoner in irons for the sake of safe custody. The character of the prisoner, not generally, but with specific reference to safe custody, must be studied by the Superintendent and if he reaches the conclusion res .....

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..... tive of order in prison than the counter productive alternative of requiring every security suspect to wear iron. Prison disorder is the dividend from such reckless 'discipline' and violent administrative culture, which myopic superintendents miss. This constitutional perspective receives ideological reinforcement from the observations of Mr. Justice Douglas in Morrissey v. Brewer. (1) 33 I,. Ed. 484, 505. 14-526SCI1/78 "The rule of law is important in the stability of society. Arbitrary actions in the revocation of paroles can only impede and impair the rehabilitative aspects of modern penology. "Notice and opportunity for hearing appropriate to the nature of the case", are the rudiments of due process which restore faith that our society is run for the many, not the few, and that fair dealing rather than caprice will govern the affairs of men." To judge whether Sobraj's fetters were legal, we must go further into the period for which this cruel process was to persist. Even prisoners who are 'lifers' shall not be retained in iron for more than three months except with the special sanction of the Inspector General (See S. 57). The rules als .....

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..... chants) has a wholesome restraining effect. And the constitutional survival of S. 56 depends on the formula of reasonableness. The spirit and substance of rule 432 make it clear that the record of the reasons is imperative and has a function. Rule 433, whatever the Superintendent's affidavit may say, clearly shows that the wearing of fetters must be for the briefest periods and deserves frequent scrutiny. Indeed, in our view, except in remotely extraordinary situations, rational justification for bar fetters of an unconvicted prisoner cannot be found except on the confession that the Prison Superintendent and his staff are incompetent to manage and indifferent to reasonableness. We cannot be swept off our constitutional feet by scary arguments of deadly prisoners and rioting gangs, especially when we find States in India which have abandoned the disciplinary barbarity of bar fetters (Tamil Nadu, Kerala et. al). The import of rule 435 is that even in cases where security compels imposition of fetters this should be only for the shortest possible time. The fact that, even as a punishment, irons must be restricted in its use (see S. 46(7) ) argues for prophylactic irons being f .....

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..... e into this group of 'rules' so as to constitutionalise the statutory prescriptions. They spell out a duty on the part of the visitors and the Inspector General of Prisons. to hear appeals or complaints from the prisoners regarding irons forced on them. The reasonableness of the restriction being the constitutional badge, the only way we can sustain S. 56 of the Act is to imply in the broad group of provisions external examinership, immediate review and cutting short of the iron regime to the briefest spell. A few submissions linking up 'dangerousness' with bar fetters urged li' by the Additional Solicitor General may now be considered. The learned Additional Solicitor General urged that there was a built-in guideline for the superintendent's discretion. Considerations of safety, expressed in paragraph 435 and S. 56. remove the vice of arbitrariness and unreasonableness. Reference to paragraph 433 was made to make out that only dangerous prisoners were to be chained in this manner. We cannot lose sight of the fact that a non- convict prisoner is to be regarded differently and it may even be a misnomer to treat such a remandee as a prisoner. We see a distin .....

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..... her or not that danger is present ? (3) on what basis is that authority to decide who among offenders is dangerous and for how long ? Predictions of dangerousness are hazardous. In 1966 the Supreme Court released 967 offenders held in New York psychiatric institutions beyond the term of their sentences because they were considered dangerous. (They had been confined without proper procedures). Researchers who followed the subsequent careers of these persons for four years found that only 2 percent were returned to institutions for the criminally insane; more than half were not readmitted to any institution. However, the criteria by which these persons had been. declared dangerous in the first place are questionable, and they had been held an average of thirteen years beyond their sentences. The prognosis depends on the peculiarities of the individual and on interpretation by the individuals who study his case-i.e on the idiosyncrasies of their (intuitive ?) judgment criteria. All institutions that hold people against their wishes need outside supervision, for, by definition, they lack the internal checks and balances that make such supervision unnecessary elsewhere. One can chec .....

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..... illness does not imply that the law can be oblivious to such matters. .. ..But we are on dangerous ground when deprivation of liberty occurs under such conditions. The practice has been to markedly overpredict. In addition, the courts and mental health professionals involved have systematically ignored statutory requirements elating to dangerousness and mental illness... In balancing the interest of the state, against the loss of liberty and rights of the idividual, a prediction of dangerous behaviour must have a high level of probability, 3 condition which currently does not exist), and the harm to be presented should be considerable.)" If our law were to reflect a higher respect for life, restraint of the person is justified only if the potential harm is considerable. Miller's conclusions are meaningful and relevant: "If confinement takes place, there should be a short-term mandatory review." ".. the basis for police power commitment should be physical violence or potential physical violence which is imminent, constituting a 'clear and present' danger and based on testimony related to actual conduct. Any such commitment should be subject to .....

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..... Although numerically large, these requirements are reasonably practical and reconcile security with humanity. Arguments to the contrary are based on alarmist a priori and may render S. 56 ultra vires. Having regard to the penumbral zone, fraught with potential for tension, tantrums and illicit violence and malpractice, it is healthy to organize a prison ombudsman for each State. Sex is an irrepressible urge which is forced down by long prison terms and homosexuality is of hidden prevalence in these dark campuses. Liberal paroles, open jail's, frequency of familial meetings, location of convicts in jails nearest their homes tend to release stress, relieve distress and insure security better than flagellation and fetters. The upshot of the discussion is that the shackles on Sobraj shall be shaken off right away and shall not be re- worn without strict adherence to the injunctions spelt out. Active prison justice bids farewell to the bloodshot heritage of fierce torture of flesh and spirit, and liabilitative processes reincarnate as a healing hope for the tense, warped and morbid minds behind bars. This correctional orientation is a constitutional implication of social justice wh .....

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..... according to rule, the key point to be noted being that after this public exhibition within the prison. the complaining prisoners are marked men at the iron mercy of the hierarchy. there being no active legal aid project busy within the prison. This ferocious rule of law, rule and nude, cannot be sustain r) ed as anything but arbitrary, unreasonable and procedurally heartless. The peril to its life from the lethal stroke of Articles 14, 19 and 21 read with 13 needs no far-fetched argument. The abstruse search for curative guideline in such words as 'dangerous' and 'necessary` forgetting the totalitarian backdrop of stone walls and iron bars, is bidding farewell to raw reality and embracing verbal marga. The law is not abracadabra but at once pragmatic and astute and does not surrender its power before scary exaggerations of security by prison bosses. Alternatives to 'solitary' and 'irons' are available to prison technology, give the will, except where indifference, incompetence and unimaginativeness hold prison authorities prisoner. Social justice cannot sleep if the Constitution hangs limp where its consumers most . need its humanism. Access and the La .....

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..... or by rational search ? 1 Likewise, under Article 21, procedural fairness is the badge of constitutionality it life and liberty are to be leashed or extinguished; and how can it be fair to bind a man by normative processes collected in books too expensive to buy ? The baffling proliferation and frequent modification of subordinate legisation and their intricacies and inaccessibility are too disturbing to participative legality so vital to democracy, to leave us in constitutional quiet. Arcane law is ac had as lawless fiat, a caveat the administration will hopefully heed. One of the paramount requirements of valid law is that it must be within the cognizance of the community if a competent search for it were made. It is worthwhile recalling the observations of Bose J. made in a different context but has a philosophic import: "Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men know what it is;.. The thought that a decision reached in the secret recess of a chamber to which the public have no access and of which they can normally know nothing(T. can nevertheless aff .....

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..... en causes paralysis of the arms. 'People on the hook' says one Uruguyan torture victim, 'cannot take a deep breath or hardly any breath. They just moan; it's a dreadful, almost inhuman noise.' And torturers all over the world use the language of grisly disinformation to describe their work. In Uganda Amin's secret police are known as the 'State Research Bureau', and B. the main torture houses are called 'Public Safety Units'. In Brazil, torturers call their sessions 'spiritual sessions' and in Chile, torturers refer to the Villa Grimaldi, their place of work, as the Palacio de la Risa-the Place of Laughter. In Iran, Otaq-e-Tamehiyat, 'the room where you make people walk', meant the blood stained chamber where prisoner's were forced to walk after torture to help their blood to circulate. What is encouraging in all this dark picture is that we feel that public opinion in several countries is much more aware of our general line than before. And that is positive. I think, in the long run, governments can't ignore that. We are also encouraged by the fact that, today, human rights are discussed between governments-they are .....

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..... and modified marginally, is not sanctioned by Sec. 30 for prisoners 'under sentence of death'. But it is legal under that Section to separate such sentencees from the rest of the prison community during hours when prisoners are generally locked in. I also uphold the special watch, day and night, of such sentencees by guards. Infraction of privacy may be inevitable, but guards must concede minimum human vacy in practice. 3. By necessary implication, prisoners 'under sentence of death' not' shall not be denied any of the community amenities, including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable regulation of prison management. Be it noted that Sec. 30 is no substitute for sentence of imprisonment and merely prescribes the manner of organising safe jail custody authorised by Sec. 366 of the Cr. P.C. 4. More importantly if the prisoner desires loneliness for reflection and remorse, for prayers and making peace with his maker, or op portunities for meeting family or friends, such facilities shall be liberally granted, having regard to the stressfull spell of terrestrial farewell his soul may be passing through t .....

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..... r on our culture. 4. Where an undertrial has a credible tendency for violence and escape a humanely graduated degree of 'iron' restraint is permissible if only if-other disciplinary alternatives are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he will be liable in law. 5. The 'iron' regimen shall in no case go beyond the intervals, conditions and maxima laid down for punitive 'irons'. They shall be for short spells, light and never applied if sores exist. 6. The discretion to impose 'irons' is subject to quasi-judicial over sight, even if purportedly imposed for reasons of security. 7. A previous hearing, minimal may be, shall be afforded to the victims. In exceptional cases, the hearing may be soon after. The rule in Gill's case and Maneka Gandhi's case gives the guidelines. 8. The grounds for 'fetters' shall be given to the victim. And when the decision to fetter is made, the reasons shall be recorded in the journal and in the history ticket of the prisoner in the State language. If he is a stranger to that language it shall be communicated to him as far as possible, in his language. This .....

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..... d the safety of its population, they must have a wide discretion in promulgating rules to govern the prison population and in imposing disciplinary sanctions for their violation. But any humanist-jurist will be sceptic like the American Judges who in William King Jackson v. D. E. Bishop(Federal Reporter. 2nd Series, Vol 404, p. 571. ) observed: "(1) We are not convinced that any rule or regulation as to the use of the strap, however seriously or sincerely conceived and drawn, will successfully prevent abuse. The pre sent record discloses misinterpretation even of the newly adopted . . . (2) Rules in this area are seen often to go unobserved. . (3) Regulations are easily circumvented (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous. (5) Where power to punish is granted to persons in lower levels of administrative authority, there is an inherent and natural difficulty in enforcing the limitations of that power." We find many objectionable survivals in the Prison Manual like whipping and allergy to 'Gandhi Cap'. Better classification for 'Europeans' is still in the book ! I hope that Prison Reform will .....

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..... nd the confidence that 'you can accomplish by kindness what you cannot do by force'(l) and so it is that the Prisons Act provisions and the Jail Manual itself must be revised to reflect this deeper meaning in the behavioural norms, correctional attitudes and humane orientation for the prison staff and prisoners alike. We cannot become misanthropes and abandon values, scared by the offchance of some stray desperate character. Then amputation of limbs of unruly suspects may be surer security measure and corporaI punishment may have a field day after a long holiday. The essence of my opinion in both these cases is the infusion of the higher consciousness of the Constitution into the stones of law which make the prison houses. The winds of change must blow into our carcers and self-expression and self-respect and self-realization creatively substituted for the dehumanising remedies and 'wild life' techniques still current in the jail armoury. A few prison villains-they exist-shall not make martyrs of the humane many; and even from these few, trust slowly begets trust. Sarvodaya and antyodaya have criminological dimensions which our social justice awareness must apprehe .....

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..... I, hopefully, alert the nation and, for the nonce, leave follow-up action to the Administration with the note that stone walls and iron bars do not ensure a people's progress and revolutionary history teaches that tense bastilles are brittle before human upsurges and many tenants of iron cells are sensitive harbingers of Tomorrow-many a Socrates, Shri Aurobindo, tilak, Thoreau, Bhagat Singh Gandhi! So it is that there is urgency for bridging the human gap between prison praxis and prison justice; in one sense, it is a battle of the tenses and in an another, an imperative of social justice. If I may end withy an answer to the question posed at the beginning, so long as constitutional guarantees are non- negotiable, human right, entrenched in the National Charter, shall not be held hostages by Authority. Emergency, exigency, dangerousness, discipline, security and autonomy are theoretically palatable expressions, but in a world where prison are laboratories of torture or warehouses where human commodities are sadistically kept and the spectrum of inmates range from drift-wood juveniles to heroics dissenters, courts- and other constitutional instrumentalities- should not consent .....

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..... of inspection form part of the record. There are certain broad submissions common to both the petitions and they may first be dealt before turning to specific contentions in each petition. It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martinex).( 40 L. Ed. 2d. 224 at 24'.) However, a prisioner's liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for crime does not reduce the person into a nonperson whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards (see Wolff v. McDonnell).( 41 I,. Ed. 2d. 935 at 973.) By the very fact of the incarceration prisoners are not in a position to enjoy the full panoply of fundamental rights because these very rights ar .....

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..... dehumanising prison atmosphere and the preservation of internal order and discipline, the maintenance of institutional security against escape, and the rehabilitation of the prisoners. Section 30 of the Prisons Act reads as under:- "30. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Jailer and all articles shall be taken from him which the Jailer deems it dangerous or inexpedient to leave in his possession. (2) Every such prisoner 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 gravamen of the argument is that sub-section (2) of s. 30 of the Act does not authorise the prison authorities in the garb of securing a prisioner under sentence of death, to confine him in a cell apart from other prisoners by imposing solitary confinement upon A him. It is alleged that since the date of his conviction by the Sessions Judge awarding him capital punishment, Batra is kept in solitary confinement. Mr. Chitale, who gave us competent assistance as an amicus curiae for Batra, after drawing our attention .....

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..... human features. It must atonce be made clear that sub-s. (2) of s. 30 does not empower the prison authority to impose solitary confinement, in the sense in which that word is understood in para 510 of Jail Manual, upon a prisoner under sentence of death. 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 and that provides internal evidence of its abnormal effect on the subject. Solitary confinement as substantive punishment cannot in any case exceed 14 days at a time with intervals of not less duration than such periods and further, it cannot be imposed until the medical officer certifies oh the history ticket that the prisoner is fit to undergo it. Every prisoner while undergoing solitary confinement has to be visited daily by the medical officer, and when such confinement is for a period of three months it cannot exceed seven days in any one month of the whole imprisonment awarded, with intervals .....

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..... cludes a prisoner from communication with other prisoners but not from the sight of other prisoners. However, para 847 of the Punjab Jail Manual and the provisions which follow, which prescribe detailed instructions as to how a condemned prisoner is to be kept, if literally enforced, would keep such prisoner totally out of bounds, i.e. beyond sight and sound. Neither separate confinement nor cellular confinement would be as tortuous or horrendus as confinement of a condemned prisoner Sub-s. (2) of s. 30 merely provides for confinement of a prisoner under sentence of death in a cell apart from other prisoners and he is to be placed by day and night under the charge of a guard. Such confinement can neither be cellular confinement nor separate confinement and in any event it cannot be solitary confinement. In our opinion, sub-s. (2) of s. 30 does not empower the jail authorities in the garb of confining a prisoner under sentence of death, in a cell apart from all other prisoners, to impose solitary confinement on him. Even jail discipline inhibits solitary confinement as a measure of jail punishment. It completely negatives any suggestion that because a prisoner is under sentence of .....

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..... ted by the High Court under Article 134(c) of the Constitution or by special leave under Article 136, an appeal can be preferred to the Supreme Court. Section 415, Cr. P.C. provides for postponement of execution of sentence of death in case of appeal to Supreme Court either upon a certificate by the High Court or as a matter of right under Supreme Court (Enlargement of criminal Appellate Jurisdiction) Act, 1971, or by special leave under Article 136. Further, under Articles 72 and 161 of the Constitution, the President and the Governor in the case of sentence of death has power to grant pardon, reprieve or remittance or commutation of the sentence. No one is unaware of the long time lag in protracted litigation in our system between the sentence of death as imposed by the Sessions Court and the final rejection of an publication for mercy. Cases are not unknown where merely on account of a long lapse of time the Courts have commuted the sentence of death to one of life imprisonment on the sole ground that the prisoner was for a long time hovering under the tormenting effect of the shadow of death Could it then be said that under sub-s. (2) of s. 30 such prisoner from the time the de .....

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..... the person who is awarded capital punishment cannot be said be a prisoner under sentence of death in the context of s. 30, sub-s. (2). This interpretative process would, we hope, to a great extent relieve the torment and torture implicit in sub-s. (2) of s. 30, reducing the period of such confinement to a short duration. What then is the nature of confinement if a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till this sentence becomes automatically executable ? Section 366(2) of the Cr. P.C. enable the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting sub-s. (2) of s. 366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. After the sentence beco .....

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..... 32 at 347.)as also in D. B. Patnaik (supra). Personal liberty as used in Article is has been held to be a compendious term to include within itself all the varieties of rights which go to make personal liberties of the man other than those dealt with in clause (d) of Article 19(1). The burden to justify the curtailment thereof must squarely rest on the State. There is no more controversy which ranged over a long period about the view expressed in A. K. Gopalan v. State of Madras,( [1950] SCR 88.) that certain articles of the Constitution exclusively deal with specific matters and where the requirements of an article dealing with a particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by the article, no recourse can be had to fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R. C. Cooper v. Union of India,( 11971] I SCR 512,) and it was overruled by a majority of Judges of this Court Ray, J. dissenting. In fact, in Maneka Gandhi v. Union of India,( [1978] I SCC 248.) Bhagwati, J. Observed as under: "The law must, therefore, now be taken to be well settled That article .....

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..... morose and docile and are inclined to spend their last few days on earth in communion with their Creator. It was, therefore, said that to proceed on the assumption that every prisoner under sentence of death is necessarily of violent propensities and dangerous to the community of co-prisoners is unwarranted and the classification on the basis of sentence does not provide any intelligible differentia. The rationale underlying the provision is that the very nature of the position and predicament of prisoner under sentence of death as construed by us, lead to a certain situation and present problems peculiar to such persons and warrants 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. In England a prisoner under sentence of death is separately classified as would appear from para 1151, Vol. 30, Halsbury's Laws of England, 3rd Edition. He is searched on reception and every article removed which the governor thinks it dangerous or inexpedient to leave with him. He is confined in a separ .....

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..... , it has been considered necessary to keep him under fetters while in Jail. While examining the constitutional validity of s. 56 l) we have not allowed our vision to be coloured, based or abridged by these averments as in our opinion for the main contention raised by the petitioner they may not be relevant. The petitioner contends that s. 56 of the Prisons Act so far as it confers unguided, uncanalised and arbitrary powers on the Superintendent to confine a prisoner in irons is ultra vires articles 14 and 21, the challenge under article 19 being not open to him. Section 56 reads as under: "56. Whenever the Superintendent considers it necessary (with reference either to the state of the prison or the character of the prisoners) for the safe custody of any prisoners that they should be confined in irons, he may, subject to such rules and instructions as may be laid down by the Inspector General with the sanction of the State Government so confine them". Sub-para (3) of para 399 of the Punjab Jail Manual provides that special precautions should be taken for the safe custody of dangerous prisoners which inter alia includes putting him under fetters, if necessary. The safe .....

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..... re, before such erosion can be justified it must have the authority of law. At one stage it was felt that the provision contained in para 399(3) world provide the sanction of law for the purpose of article 21. Section 56 confers power for issuing instructions by the Inspector General of Prison with the sanction of the State Government and section 59 confers power on the State Government to make rules which would include the rule regulating confinement in fetters. A deeper probe into the sanction behind enactment of para 399 ultimately led the learned Additional Solicitor General to make the statement on behalf of the respondents that para 399 of the Punjab Jail Manual is not a statutory rule referable either to s. 59 or 60 of the Prisons Act, 1894. Learned counsel stated that despite all efforts respondents were unable to obtain the original or even a copy of the 16- 526SCT /78 sanction of the local Government referred to in s. 56. We must, therefore, conclude that the provision contained in para 399 is not statutory and has not the authority of law. The question, therefore, is, whether the power conferred on the Superintendent by s. 56 is unguided and uncanalised in the sense that .....

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..... erations, the necessity or putting any particular prisoner in bar fetters must be relatable to them. We are, therefore, of A the opinion that 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. Again, the power under s. 56 is not unbridled because in the context of para 399 special precautions as required by sub-para 3 have to be taken for the safe custody of dangerous prisoners, irrespective of the fact whether they are awaiting trial or have been convicted. lt is difficult to define with precision what attributes of .....

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..... for putting a prisoner in bar fetters or for containing him in irons are the character, antecedents and propensities of the prisoner. The nature or length of sentence or the number of convictions or the gruesome character of the crime the prisoner is alleged to have committed are not by themselves relevant and can not enter the determination of the Superintendent except to the extent to which they hear on the question of the safety and safe custody of the prisoner. The legislative policy behind enacting s. 56 as interpreted by use is clear and discernible and the guidelines prescribed by` the section have the effect of limiting the application of the provision to a particular category of persons. In such a situation the discretion circumscribed by the requirement vested in the prison authority charged with the duty to manage the internal affairs of the prison for the selective application of s. 56 would certainly not infringe article 14. It was said that continuously keeping a prisoner in fetters day and night reduces the prisoner from a human- being to an animal, and that this treatment is so cruel and unusual that the use of bar fetters is anethema to the spirit of the Constit .....

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