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TMI Blog2017 (9) TMI 1938X X X X Extracts X X X X X X X X Extracts X X X X ..... T.G. Narayanan Nair, K. Enatoli Sema, Edward Belho, Amit Kumar Singh, K. Luikang Michael, Z.H. Isaac Haiding, Anindita Pujari, Ashok Panigrahi, Uttara Babbar, Akanksha Chaudhary, S.S. Shamshery, Amit Sharma, Ankit Raj, Ruchi Kohli, Aruna Mathur, Avneesh Arputham, Anuradha Arputham, Amit Arora, Simran Jeet, Advs. for Arputham Aruna & Co., Gopal Singh, Rituraj Biswas, M. Yogesh Khanna, Maha Lakshmi, Sujatha Bagadhi, S. Udaya Kumar Sagar, Mrityunjai Singh, A.K. Upadhyay, Saurav Agrawal, Komal Mundhra, Rachana Srivastava, Monika, Sukrit R. Kapoor, Raja Chatterjee, Runa Bhuyan, Chanchal Kumar Ganguli, K.V. Jagdishvaran, G. Indira, M.S. Doabia, Sudarshan Singh Rawat, V.G. Pragasam, Prabu Ramasubramanian, Manu Sundaram, T.N. Rama Rao, Hitesh Kumar Sharma, T. Veera Reddy, D. Mahesh Babu, Ritu Kumar, Satya Mitra and Kamal Mohan Gupta, Advs. JUDGMENT Madan B. Lokur, J. 1. Custodial violence has always been a matter of great concern for all civilized societies. Custodial violence could take the form of third degree methods to extract information - the method used need not result in any physical violence but could be in the form of psychological violence. Custodial violence could also incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in prisons and had issued certain directions. In the present decision, we consider unnatural deaths in prisons. On this issue of unnatural deaths in prisons, the only reliable information available is from the National Crime Records Bureau or the NCRB. The website of the NCRB (2 ncrb.gov.in) indicates that deaths in judicial custody, both natural and unnatural, are as under: Year Natural Deaths Unnatural Deaths 2012 1345 126 2013 1482 115 2014 1507 195 2015 1469 115 6. The distinction made by the NCRB between natural and unnatural deaths is unclear. For example, if a prisoner dies due to a lack of proper medical attention or timely medical attention, would that be classified as a natural death or an unnatural death? This needs to be explained as submitted by the learned Amicus. 7. Be that as it may, the break-up of unnatural deaths given by the NCRB on its website is as under: Year Suicide Murder by inmates Death due to firing Assault by outside elements Negligence by jail staff Others 2012 87 4 10 4 0 22 2013 70 8 1 12 0 23 2014 94 12 2 4 1 82 2015 77 11 0 7 0 19 8. Again, there is a lack of clarity in the classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all jail suicides-the first is the environment in the jail, which is apparently 'conducive' to suicidal behaviour, and the second is the crisis situation faced by an inmate. 12. Detailing the characteristics of a prison environment that make suicides in prisons more likely, the NHRC monograph mentions the following: 1. Authoritarian environment. 2. No apparent control over the future. 3. Isolation from family, friends and community. 4. The shame of incarceration. 5. Dehumanizing aspects of incarceration. 6. Fears. 7. Staff insensitivity to the arrest and incarceration phenomenon. 8. Hostility and bullying by other inmates. 9. Lack of adequate medical and psychological counseling and treatment facility. 10. Delay in deciding the parole. Similarly, the characteristics of a crisis situation are mentioned and they are as follows: 1. Recent excessive drinking and/or use of drugs. 2. Recent loss of stabilizing resources. 3. Severe guilt or shame over the offence. 4. Same-sex rape. 5. Current mental illness. 6. Poor health or terminal illness. 7. Approaching an emotional breaking point. 13. The NHRC has suggested various protective factors or measures that coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. This clarified the communication of 14th December, 1993 which was perhaps misunderstood by the Chief Secretaries and their subordinates to mean that the intention of the NHRC was to obtain information only with regard to deaths in police custody and not deaths in judicial custody. 18. On 10th August, 1995 the NHRC addressed a communication to the Chief Ministers of all the States on the necessity of video-recording of postmortem examinations in cases of custodial deaths. The reason behind this communication was that a post-mortem report is a very valuable record and has considerable importance in assisting in drawing conclusions on the cause of death of a person, particularly in a police lock-up or in a jail. The NHRC noted that though the process of video-recording of the post-mortem examination would involve extra cost, human life is more valuable than the cost of video-recording and in any case, occasions necessitating video-recording should ideally be very limited. 19. The NHRC addressed a communication on 27th March, 1997 to the Chief Ministers/Administrators of all the States/Union Territories requesting adoption of the Model Autopsy Form and the additional procedure for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriously but are being followed more in the breach. Nelson Mandela Rules 23. The learned Amicus submitted that the General Assembly of the United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) adopted on 17th December, 2015. These Rules provide useful internationally accepted guidelines for implementation by prison administrations across the country. He drew our particular attention to Rules 58 to 63 which deal with prisoner contact with the outside world. It was submitted that merely because a person is in prison, it does not mean that he or she should be cut off from the outside world. In fact, the prisoner should be allowed to communicate with his family and friends at regular intervals and should also be permitted to communicate and consult with a legal adviser of his or her choice. This by itself could have a soothing effect on the prisoner. He submitted that prisoners should be informed of important items of news through newspapers, periodicals or special institutional publications so that contact with the outside world is maintained. This, according to the learned Amicus, would substantially reduce the feeling of isolat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tools used in worksheds and barber's or tailor's equipment as well as ropes for wells. It is provided that care should be taken that no such object is left about in the prison that may be used for committing suicide. In fact in paragraph 13.42 it is stated that prisoners with apparently suicidal tendencies should be carefully watched and not left alone in a cell. Such prisoners should also be referred to counselors and psychiatrists and should be supervised closely. Chapter XIII of the Manual also provides that reasonable caution should be taken to guard against accidents when convicts are employed on dangerous work such as blasting, excavation or other works of a dangerous character. It is also provided in paragraph 13.44 that poisonous drugs, surgical instruments and other similar items should not be left within the reach of prisoners. 28. The said Chapter XIII of the Manual contains a Section devoted to the issue of prevention of fires and yet another Section is devoted to epidemics and precautions to be taken when an epidemic occurs such as cholera, enteric fevers, gastroenteritis etc. It is provided that infected prisoners should be segregated and kept under medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be illiterate. In the absence of a prisoner having any knowledge about his or her rights, a grievance redressal mechanism is quite meaningless. Compendium of Advisories issued by the Government 31. The learned Attorney General then placed before us a Compendium of Advisories on Prison Administration 2016 issued by the Government of India. This was in the context of his submission that since 'prisons' is a State subject as per Entry 4 of List II of the Seventh Schedule of the Constitution, all that the Central Government can do is to issue advisories to the State Governments on the subject of prisons. The learned Attorney General submitted that advisories had been issued from time to time to the State Governments on a variety of issues, including on the issue of prison administration as well as stress relieving programmes such as yoga and meditation courses, Art of Living courses, Pranic courses and Vipassana. 32. All that we can say in this regard is that while the Central Government may have noble intentions and is perhaps taking steps to improve prison administration and to bring about reforms in prisons, the fact remains that conditions in prisons leave a lot to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations framed by the State Government for the management of prisons. 35. Our attention was drawn to the report of the Comptroller and Auditor General of India (CAG) in respect of the Government of NCT of Delhi for the year ended 31st March, 2014 in relation to social, general and economic sectors. The submission made by learned Counsel appearing for the National Forum was that as a result of what could be termed as a performance audit, the CAG provided some very useful suggestions. In the particular audit referred to, it was pointed out that the hospital in Tihar Jail was not equipped to face any emergency situation as there was a shortage of doctors and other medical staff ranging from 18% to 62%. A reference was also made in the report to the problem of substance abuse in prisons and the shortcomings noted in the Drug De-addiction Centre in Tihar Jail. One of the shortcomings was the non-availability of essential medicines for a period ranging from one to thirty-four months. If these are the conditions in what is perhaps the 'best prison' in the country, we shudder to think what the position would be in other prisons across the country. 36. The learned Counsel also ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing. Explanation.--In this section, the expression "relative" means parents, children, brothers, sisters and spouse.) It was submitted that in view of the provisions of law, it was obligatory on the part of the State to ensure that an inquiry is conducted in respect of every death that takes place in custody. 37. The need for an inquiry into every death in custody was also emphasized by the learned Amicus, who submitted that there was discrepancy of data between deaths reported in prisons as per the NCRB and deaths reported in prisons as derived from the data available with the NHRC. It was submitted by the learned Amicus that this discrepancy needs to be reconciled and adequate reasons must be provided for every death that takes place in a prison. Suggestions of the learned Amicus 38. Taking all these submissions into consideration, the learned Amicus suggested that we issue, amongst others, the following directions: 1. The treatment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Inspector General of Police (Prisons) West Bengal and the report of Ms. Smita Chakraburtty which suggests that medical facilities in most prisons do not meet the minimum requirements of medical care. 10. The learned Amicus laid great stress on the constitution of a Board of Visitors comprising official and non-official visitors. The learned Amicus drew attention to an advisory issued on 18th February, 2011 by the Central Government for the appointment and working of non-official visitors for prisons. 11. The learned Amicus endorsed the suggestion of conducting performance audits for prisons across the country. 39. According to the learned Amicus, if these (and other) directions are given to the State Governments, prison reforms will become far more meaningful and the level of unnatural deaths will decrease. Compensation for unnatural deaths 40. The issue of compensation for unnatural deaths in custody is no longer res integra. 41. One of the earliest cases where this Court granted compensation in a petition Under Article 32 of the Constitution is Rudul Sah v. State of Bihar (1983) 4 SCC 141. That case was not one of a custodial death but was a case of illegal detention even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was held that as a consequence of imprisonment, a prisoner does not cease to have constitutional rights, except to the extent he or she has been deprived of them in accordance with law. Therefore, even a prisoner is entitled to protection and if he is killed while in prison, it results in a deprivation of his life contrary to the law, for which the next of kin are entitled to compensation. 45. In D.K. Basu v. State of West Bengal (1997) 1 SCC 416 this Court recognized that at the time of ratification of the International Covenant on Civil and Political Rights, 1966 in 1979, the Government of India made a specific reservation to the effect that the Indian legal system does not recognize a right to compensation for victims of unlawful arrest or detention and only became a party to the covenant, subject to this reservation. It was noted however, that the reservation has lost its relevance in view of the law laid down by this Court in several cases wherein compensation has been awarded for the infringement of a fundamental right of a citizen. It was also noted that while there is no express provision in the Constitution for grant of compensation, this right has been judicially ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulded by granting compensation to the next of kin of the deceased. 47. In addition to the above decisions and several others rendered by this Court, almost every High Court in the country has, at one time or another, also granted compensation for the unnatural death of a person in custody, whether an undertrial or a convict. A few such illustrations may be noted: a. Nina Rajan Pillai and Ors. v. Union of India 180 (2011) DLT 104 The husband of the Petitioner died in judicial custody due to inadequate medical treatment given by the jail authorities. The Lt. Governor of Delhi even appointed a Commission of Inquiry headed by Justice Leila Seth, a former Chief Justice of the Himachal Pradesh High Court to inquire into the circumstances that led to the death of the Petitioner's husband. The Delhi High Court awarded compensation for the unnatural death in custody. b. Kewalbai v. The State of Maharashtra 2013 (3) Bom CR (Cri.) 601 The victim was shot dead by a constable while in custody. The Bombay High Court awarded compensation for the unnatural death in custody. c. Bheduki Buragohain v. State of Assam 2013 (2) GLT 370 The undertrial victim died in judicial custody under susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court to the next of kin of the deceased. k. Dukhuram v. State of Chhattisgarh and Ors. 2011 (3) MPHT 81 The deceased was taken from the police station in order to recover stolen articles alleged to have been hidden by him at a secret place. He was brought to a pond and compelled to dive into the pond. At that time he was handcuffed and in chains. Subsequently, the dead body of the deceased was found floating in the pond. In view of the unnatural death while the deceased was in the custody of police officers, the Chhattisgarh High Court awarded compensation. l. Santosh Kumari v. State of H.P. and Ors. 2008 ACJ 1684 The victim died while he was in police custody and it was found that he had injuries on his head, shoulders, eyes, knees and private parts. He died in hospital as he was not given medical assistance in time. In view of the unnatural death while in custody, the Himachal Pradesh High Court awarded compensation to the next of kin of the deceased. m. State of Jammu & Kashmir v. Sajad Ahmad Dar (LPAHC No. 36/2015) The victim died due to cardio pulmonary arrest while detained in the District Jail under the Jammu and Kashmir Public Safety Act, 1978. It was held that dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r criminal justice system that leads to violence in prisons and eventually unnatural deaths. 50. This Court has time and again emphasized the importance of Article 21 of the Constitution and the right to a life of dignity. There must be a genuine desire to ensure that the guarantee to a life of dignity is provided to the extent possible even in prisons, otherwise Article 21 of the Constitution will remain a dead letter. It must be appreciated by the State that the common person does not violate the law for no reason at all. It is circumstances that lead to a situation where there is a violation of law. On many occasions, such a violation may be of a trivial nature or may be a one-time aberration and, in such circumstances, the offender has to be treated with some degree of humanity. At least in such cases, retribution and deterrence cannot be an answer to the offence and the offender. Unless the State changes this mindset and takes steps to give meaning to life and liberty of every prisoner, prison reforms can never be effective or long lasting. 51. The issue of unnatural deaths in prisons was debated and discussed before us in great detail by the learned Amicus, the learned Atto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... todial death of Children 55. One of the issues not touched upon by the learned Amicus or by the National Forum relates to the custodial death of children in child care institutions under the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the Juvenile Justice (Care and Protection of Children) Act, 2015. There does not appear to be any study carried out in this regard and it is rather unfortunate that the Central Government and the State Governments are oblivious to the possibility of death of children in custody in child care institutions. This is distressing. The pain and anguish of the next of kin of children who pass away in custody is not less, but more than the pain and anguish of the next of kin of any prisoner who suffers an unnatural death in custody. It seems that apart from being 'voiceless', such children are also dispensable. 56. There is no documentation on the number of unnatural deaths (if any) of children in child care institutions and this should now be on the agenda of the Central Government and the State Governments (particularly the Department concerned with the welfare of children) with far greater concern than has been shown s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the website of the NCRB and in its Annual Reports and also explain the sub-categorization 'others' within the category of unnatural deaths. The NCRB should also be required to sub-categorize natural deaths. The sub-categorization and clarification should be complied with by 31st October, 2017. 4. The State Governments should, in conjunction with the State Legal Services Authority (SLSA), the National and State Police Academy and the Bureau of Police Research and Development conduct training and sensitization programmes for senior police officials of all prisons on their functions, duties and responsibilities as also the rights and duties of prisoners. A copy of this order be sent by the Registry of this Court to the Member-Secretary of each SLSA to follow-up and ensure compliance. 5. The necessity of having counselors and support persons in prisons cannot be over-emphasized. Their services can be utilized to counsel and advice prisoners who might be facing some crisis situation or might have some violent or suicidal tendencies. The State Governments are directed to appoint counselors and support persons for counselling prisoners, particularly first-time offenders. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by eminent members of society who should be included in the Board of Visitors. The State Governments are directed to constitute an appropriate Board of Visitors in terms of Chapter XXIX of the Model Prison Manual indicating their duties and responsibilities. This exercise should be completed by 30th November, 2017. 10. The suggestion given by the learned Amicus of encouraging the establishment of 'open jails' or 'open prisons' is certainly worth considering. It was brought to our notice that the experiment in Shimla (Himachal Pradesh) and the semi-open prison in Delhi are extremely successful and need to be carefully studied. Perhaps there might be equally successful experiments carried out in other States as well and, if so, they require to be documented, studied and emulated. 11. The Ministry of Women & Child Development of the Government of India which is concerned with the implementation of Juvenile Justice (Care and Protection of Children) Act, 2015 is directed to discuss with the concerned officers of the State Governments and formulate procedures for tabulating the number of children (if any) who suffer an unnatural death in child care institutions where th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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