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TMI Blog1978 (8) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 'caged' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatly put it.('). The Matter of internal management of prisons or cor rectional institutions is vested in and rests with the hands of those institutions operating under statutory authority and their acts and administration of prison discipline and over all operation of the institution are not subject to court super vision or control absent most- unusual circumstances or absent a violation or a constitutional right. But Corwin notes.(2) Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution-overcrowding, understaffing. unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eight Amendment ban on ''cruel and unusual punishments. The hands-off' doctrine is based on the fallacious foundation stated in 1871 in Ruffin v. Commonwealth: He has, as a consequence of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 not wholly stripped of constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 triggered by the guard. We cannot, without check permit human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 intervention of social welfare organisation in litigative pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 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 [ work to correct the offender's demonstrated c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eprivation, 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 their keepers is because they themselves (the inmates are disres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionality 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, with lovely dexterity adopted by Sri Soli Sorabjee appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning 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 tendencies of which no prophecy. In the application of a constitution, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the former construction. To put the rule beyond doubt, interstitial legislation through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal 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 substantially incommunicado. The quasi-solitary confinement was challenged in the High Court, perhaps vag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itude 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 the earth, a do-don't calculus of principled pragmatism. So, any discussion of prison law problems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isoners 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 necessary to state that the High Court has since upheld the death penalty imposed on him; and open to him still i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uard 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 death are mixed up with other categories of prisoners then the very basic structure of superintendence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outed, 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 should not be scotched in mind by draconian cellular insulation nor stripped of the basic fellows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rceable 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 ends when the last court has finally set its seal on his liquidation and the highest executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man 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 the primitive drills behind the 'iron curtain' sanctified by literal lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 point. Why should he kill or be killed? Most murderers are first offenders an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urality 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. 128-129.) The hole , or solitary confinement, is often referred to as an Adjustme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the validatory burden is on the State The next fallacy in the counter-affidavit is that if the murder is monstrous deserving deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considered a threat to others or the safety or security of the penitentiary is a matter for administrative decision and not the courts. (1) Kenneth Grahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, that literary genius, Oscar Wilds, who crossed the path of the criminal law, was thrown into prison and wrote De Profundis, has poetized in prose, with pessimism and realism, the lone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 simultaneously. There is a great deal of shouting at each other, and the slight human touch that might have come from the interview is entirely absent. (1) Jawaharlal Nehru, An Autobiography, p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 mind. Judicial opinion across the Atlantic, has veered to the view that it is near-insanity to inflict prolonged solitary segregation upon prisoners. And the British System has bid farewell to solitary confin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emselves 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. 144. (2) Psychiatrist and the Urban-setting-Comprehensive Text Book of Psychiatrist-ll, 2nd Ed. Vol. II (1976) by A . M. Freeman, Harlod I. Kaplan, Benjamin J. Sedock, p. 2503. (3) James C. Coleman-Abnormal Psychology and Modern L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ownership is not in him'. This can be said of every person convicted under S. 379, Penal Code and I do not consider that to be I circumstance justifying the passing of an order of solitary confinement. The direction regarding solitary confinemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 sentence that even the socially less sensitive Penal Code of 1 860 has interposed, in its cruel tenderness, intervals, maxima and like softening features in both sections 73 and 7. Such being the penal situation, it is argued that the incarcertory insulation inflic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 death. We have to discover when we can designate a prisoner as one under sentence of death. The next attempt is to discern the meaning of confinement in a cell apart from all other prisoners . The purpose is to maintain discipline and discipline is to avoid disorder. fight and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 more other prisoners; . (10) cellular confinement for any period not exceeding fourteen days; Provided that, after such period of cellular confinement an interval of not less duration than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement: Explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des 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 vice. In the present case we are satisfied that what reigns in Tihar for 'condemned' prisoners is sound proof, sight-proof, society-proof cellular insulation which is a first cousin to solitary confinement. Section 366(2), Cr.P. Code has bearing on this discussion, for it states: The Court passing the sentence shall commit the convicted person to jail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. whatever else it be. Neither the Penal Code nor the Criminal Procedure Code lends validity to any action beyond the needs of safety and any other deprivation, whatever the reason, has not the authority of law. Any executive action which spells infraction of the life and liberty of a human being kept in prison precincts, purely for safe custody, is a challenge to the basic noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 psychiatry of the Jail Manual considers continuation of such confinement as likely to prove injurious to mind or body or even prone to make the person permanently unfit to undergo such confinement [vide paragraph 512(7) and (9) of the Jail Manual. In Words and Phrases (Permanent Edn.) solitary confinement as a punishment is regarded as the complete isolation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellate power will be frustrated, the man executed and the Supreme Court stultified if it upsets the death sentence later. In our view, when an appeal pends against a conviction and sentence in regard to an offence punishable with death sentence, such death sentence even if confirmed by the High Court shall not work itself out until the Supreme Court has pronounced. section 415 Cr.P.C. produces this result inevitably. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by these two high dignitaries it is not possible to predicate that there is a self executory death sentence. Therefore, a prisoner becomes legally subject. to a self-working sentence of death only when the clemency application both prisoner stands rejected. Of course, thereafter section 30(2) is attracted. A second or a third, a fourth or further application for mercy docs not take him out of that category unless there is a spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 segregation cell was bitter. The sting of the situation was 'human isolation loss of group privileges'. On this Judge held: This court finds that punitive segregation under the conditions to which plaintiff was subjected at Green Haven is physically harsh, destructive of morale, dehumanizing in the sense that it is needlessly degrading, and dangerous to the maintenance of sanity when continued for more than a short period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tre 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 considerations which must be taken into account A meaningful passage in the appellate judgment in the same case may be excerpted: We are not to be understood as disapproving the judgement of many courts that our constitutional scheme does not contemplate that society may commit law breakers to the capricious and arbitrary actions of prison officials. If substantial deprivations are to be visited upon a prison, it is wise that such action should at leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitutes aid in the form to help from the staff or from a sufficiently competent inmate designated by the staff. We need not pursue the matter further here, how ever, for there is no claim that respondent Mcdonnell, is within the class of inmates e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act 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 of cases where administrative and regulatory actions were under scrutiny. The decision as to whether an inmate should be allowed to confront his accusers should not be left to the unchecked and unreviewable discretion of the prison disciplinary board. The argument offered for that result is that the danger of violent response by the inmate against his accusers is great, and that only the prison administrators are in a position to weigh, the necessity of secrecy in each case. But it is precisel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erhaps 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 a constitutional angle. Unless driven to pronounce upon constitutionality we may not go into the question at all. Even so, for a perspicacious understanding of the facets of solitary confinement, its soul or rather its soullessness, I may refer to a few of the cited cases. The Court will stand four square between a prisoner and the methodology of destroying completely tile spirit and undermining the sanity of the prisoner in jail. This we do, not because of anything like the Eighth Amendment but because unreasonable rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties 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 Democracy, have, with passion but without partisanship, complained that 'over a hundred other prisoners in Tihar Jail are subjected to these inhuman conditions' ! The State has controverted the arithmetic but has not refuted the thrust of the submission that a substantial number of undertrial prisoners has suffered aching irons over their anatomy. As against 207 the State admits a total of 93 prisoners.. 'in bar fetters'. There is no dispute that all but the petitioner were of the 'C' class category, that is, men who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 by the State as inconvenient but not inhumane, evil but inevitable, where the customer is one with dangerous disposition and attainments. It is admitted that Sobraj has been in fetters to inhibit violence and escape. The sorrows of Sobraj cannot be appreciated nor his constitutional claims evaluated without a fuller account of the bar fetter chapter of his jail life. Ever since July 6, 1976, he has been kept in bar fetters, duly welded, all these months without respite through the period of preventive detention and after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urder 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 the only class prisoner subjects fetters, the others being class people. A cynical but to observer may comment necessarily violent in Gandhian India but that the better-off are able to buy the class justice current in the 'caste system' behind the bars- according to rule, of course. Anyone whose socio-economic level is higher is a class prisoner, undertrial or convict; everyone whose lot is below that line is a class jailbird who is often deprived of basic amenities and obliged to do hard l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing 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 of the State is that high-risk prisoners, even the under-trials, cannot be allowed to bid for escape, and where circumstances justify, any result oriented measure, including fetters, is legally permissible. It is argued that a prison is not play-ground and hyper-sensitive reaction to irons may be functional folly, if we realise that custodial security has high prison priority. Dangerous persons, if they are to be produced to answer justice, must suffer indefinite immobilisation, even if painf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 way back in 1952 told the conference of Inspectors-General of Prisons: it is not enough to consider a prisoner merely as a prisoner.. To my mind a prisoner is not a matter of contempt. Even the worst criminal, as you call him, is after all a human being as good or bad as any other outsider: what ever remedies you can find out to treat prisoners, unless your attitude changes, and you consider that the prisoners inside the jails are really human beings equal in self-respect to your self-resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judicial strategy of softening draconian disablement implied in S. 56 by a process of interpretation as against invalidation. We agree, and proceed to consider whether the language of S. 56 lends itself to such leniency. The impugned provision runs thus: 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 responsibly that there is necessity to confine the man in irons to prevent escape from custody, he may exercise his powers under S. 56. To consider a step as necessary the authority must exercise intelligent care, bestow serious consideration and conclude that the action is not only desirable or advisable but necessary and unavoidable. A lesser standard shows scant regard for the statutory imperative. S.56 empowers the Deputy Superintendent to put a prisoner in irons only in situations of urgent n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary 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 also take a horrifying view of the trauma of fetters. The power to confine in iron can be constitutionalised only if it is hemmed in with severe restrictions. Woven around the discretionary power there must be protective web that balances security of the prison and the integrity of the person. It is true that a discretion has been vested by S. 56 in the Superintendent to require a prisoner to wear fetters. It is a narrow power in a situation of necessity. It has no be exercised with extreme restraint. The disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 for the shortest spell. At night, when the prisoner is in a cell there is no particular reason to apprehend or possibility of escape. So nocturnal hand-cuffs and chains are obnoxious and vindictive and anathema in law. The infraction of the prisoner's freedom by bar fetters is too serious to be viewed lightly and the basic features of 'reasonableness' must be built into the administrative process for constitutional survival. Objectivity is essential when the shackling is prima facie s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 distinction between unconvicted prisoners and convicted prisoners being dealt with differently. (See paragraph 392 of the Manual). Assuming the indiscriminate provision in para 399 embracing dangerous prisoners 'whether they are awaiting trial or have been convicted' to be applicable, we should deal with the two categories differently. Para 399(3) reads: Special precautions should be taken for the safe custody of dangerous prisoners whether they are awaiting trial or have been convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 check out of a hotel if abused, but not out of a prison. Prison staffs? which unlike hotel staffs, can also totally circumscribe the activities of inmates-have extensive coercive power that must be checked by an outside authority if it is not to be abused. While sharing the, purposes of the penal system, the outside authority should be altogether independent of the management of the institutions it is to super vise and of its personnel. (The general supervisory power of the judiciary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 mandatory review within two weeks. ...... Restraint should be time- limited, with a maximum of five to seven days. The inference is inevitable that management of dangerousness in the prison setting is often overkill and underscientific. The irrationality of bar fetters based on subjective judgment by men without psychiatric training and humane feeling makes every prisoner 'dangerous'. Dr. Bhattacharya writes(l): (1) Dr. B. K. Bhattacharya.: Prisons p. 116. In the Delhi jail particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whose index finger points to Art. 14 (anti- arbitrariness), Art. l9 (anti-reasonableness) and Art 21 (sensitized processual humanism). Prison reform is burgeoning in the administrative thanking and, hopefully one may leave it to legislative and executive effort to concretise, with feeling for 'insiders' and concern for societal protection, with accent on perimeter security and correctional strategy, the project of prison reform. Presumptive innocence blushes when ad libitum discretion is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstruse 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 Law An allegedly unconscionable action of Government which disables men in detention from seeking judicial remedies against State torture was brought to our notice. I would have left the matter as an unhappy aberration of governmental functioning but the fundamental character of the imputation leaves us no option but to drive home a basic underpinning of our government of laws. Democratic legality stands stultified if the Corpus Juris is not within the actual ken or reasonable reach of the citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized men. It shocks conscience. (') Legislative tyranny may be unconstitutional if the State by devious methods like pricing legal publications monopolised by government too high denies the equal protection of the laws and imposes unreasonable restrictions on exercise of fundamental rights. The cult of the occult is not the rule of law even as access to law is integral to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piritual 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 now on the inter national political agenda. But, in the end, what matters is the pain and suffering the individual endures in police station or cell. I imply nothing from the quote but it deepens our awareness in approaching our task. Now that the dilatory discussion overlapping at times, has come to an end, I may concretise the conclusions in both the cases, lest diffusion should leave the decision vague or with ragged edges. They flow from the elevating observations of Chandrachud, J. (as he then was) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall 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 the compassion society owes to him whose life it takes. 5. The crucial holding under Sec. 30(2) is that a person is not 'under sentence of death', even if the sessions court has sentenced him to death subject to confirmation by the High Court. He is not 'under A sentence of death' even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending even if this Court has awarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 applies to cases as much of prison punishment as of 'safety' fetters. 9 Absent provision for independent review of preventive and punitive action, for discipline or security, such action shall be invalid as arbitrary and unfair and unreasonable. The prison officials will then be liable civilly and criminally for hurt to the person of the prisoner. The State will urgently set up or strengthen the necessary infra- structure and process in this behalf-it already exists in embryo in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 receive prompt attention as the higher political echelons in the country know the need and we may not be called upon to pronounce on the inalienable minima of human rights that our constitutional order holds dear. It is noteworthy that, as pointed out in Furman v. Georgia(33 L. Ed. 2d. 346.) with reference to death sentence, by Justices Douglas and Marshall, the more painful prison cruelties are often imposed on the socioeconomic weak and the militant minorities. Our prison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 apprehend and actualize. I justify (1) Pubillus Syrus this observation by reference to the noble but inchoate experiment (or unnoticed epic) whereby Shri Jai Prakash Narain redemptively brought murderously dangerous dacoits of Chambal Valley into prison to turn a responsible page in their life in and out of jail. The rehabilitative follow-up was, perhaps, a flop. In short, the technology of raising the level of awareness, not gene- rating hatred by repression, shows the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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 to make jails judgeproof to tearful injustice. Until current prison pathology is cured and prison justice restored, stone walls and iron bars will not solve the crime crisis confronting society today. I am aware that a splendid condensation of the answers to the score questions has been presented by my learned brother Desai, J and I endorse the conclusion. But when the issue is grave and the nation, now and again, groans because prisons breed horror and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionally 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 are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. In D. Bhuvan Mohan Patnaik ors. v. State of Andhra Pradesh ors([1975] 2 SCR 24.) one of us, Chandrachud J., observed:- Convicts are not, by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpedient 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 to the development of psycho- pathological syndrome in prisoners under solitary confinement for an unlimited period, urged that s. 30 of the Act does not empower the prison authorities to place the prisoner in solitary confinement. It was said that if 5. 46(8) and (10) empower prison authorities to impose separate or cellular confinement as a punishment for jail offences, solitary confinement being more tormenting in effect, can- not be imposed on the prisoner, more so be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 between the periods of solitary confinement of not less duration than such periods (see s. 74, IPC). The Court cannot award more than three months' solitary confinement even if the total term of imprisonment exceeds one year (see s. 73, IPC). This is internal evidence, if any is necessary, showing the gruesome character of solitary confinement. It is so revolting to the modern sociologist and law reformist mat the Law Commission in its 42nd Report, page 78, recomm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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 death therefore, and by reason of that consideration alone, the jail authorities can impose upon him additional and separate punishment of solitary confinement. They have no power to add to the punishment imposed by the Court which additional punishment could have been imposed by the Court itself but has in fact been not so imposed. Upon a true construction, sub-s. (2) of s. 30 does not empower a prison authority to impose solitary confinement upon a priso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 death sentence is awarded by the Sessions Judge has to be confined in a cell apart from other prisoners? The prisoner in such separate, confinement would be under a trauma for unusually long time, and that could never be the intention of the legislature while enacting the provision. Such special precautionary measures heaping untold misery on a condemned prisoner cannot spread over a long period giving him no respite to escape from the boredom by physical and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 becomes executable he may be kept in a cell apart from other prisoners with a day and night watch. But even here, unless special circumstances exist, her must be within the sight and sound of other prisoners and be able to take food in their company. If the prisoner under sentence of death is held in jail custody, punitive detention cannot be imposed upon him by jail authorities except for prison offences. When a prisoner is committed under a n warrant for jail custody unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 21 does not exclude article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty and there is consequently no in fringement of the fundamental right conferred by article 21, such law, in sq far as it abridges or takes away any fundamental right under article 19 would have to meet the challenge of that article... if a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence 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 separate cell, kept apart from all other prisoners and is not required to work. Visits are allowed by relatives, friends and legal advisers whom the prisoner wishes to see etc. It is true that there is no warrant for the inference that a prisoner under sentence of death is necessarily of violent propensities or dangerous to co- prisoners. Approaching the matter from that angle we interpreted sub-s. (2) of s. 30 to mean that he is not to be completely segregated except in extreme cases of necessity which must be specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 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 safeguard that it provides is that if the Superintendent decides to put him in fetters he must record special reasons for putting fetters in the Journal and it must also be noted in the history ticket of the prisoner. Warders are under a duty to satisfy themselves that the fetters are intact. Para 43S provides that fetters imposed for security shall be removed by the Superintendent as soon as he is of opinion that this can be done with safety. Para 69 in Chapter VI provides that the Superintendent shall discharge A his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the Superintendent can pick and choose a prisoner arbitrarily for being subjected to bar fetters for such length of time as he thinks fit, and for any purpose he considers desirable, punitive or otherwise. A bare perusal of s. 56 would show that the Superintendent may put a prisoner in bar fetters (i) when he considers it necessary; (i;) with reference either to the state of the prison or character of the prisoner; and (iii) for the safe custody of the prisoner. No we would exclude from consideration the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a prisoner can justify his classification as 'dangerous. But, these are practical problems which have to be sorted out on practical and pragmatic considerations by those charged with the duty of administering jails. Let us look at the conspectus of safeguards that are adumbrated In s. 56 itself and in para 399 which though not statutory are binding, on the Superintendent. Determination of necessity to put a prisoner in bar fetters must be relatable to the character of the prisoner., and the safe custody of the prisoner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preted 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 Constitution. Now, we do not have in our Constitution any provision like the VIIIth Amendment of the U.S. Constitution forbidding the State from imposing cruel and unusual punishment as was pointed out by a Constitution Bench of this Court in Jagmohan Singh v. State of U.P.( [1973] 2 SCR 541.) But we cannot be oblivious to the fact that the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under arti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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