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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 ..... deaths in prisons was debated and discussed before us in great detail by the learned Amicus, the learned Attorney General and learned Counsel for the National Forum. All of them have painstakingly taken us through a plethora of documents but, as mentioned above, the existence of volumes of documents relating to unnatural deaths in prisons does not necessarily resolve the problem that we are confronted with and which was brought to our notice by Chief Justice Lahoti - However, we do hope that the highlighting of this issue will bring about awareness in the mind and heart of the powers that be and consequential reforms in prisons which may ultimately reduce, if not eliminate, the number of unnatural deaths in prisons and also improve the conditions of prisoners all over the country. The need to compensate - HELD THAT:- Over the last several years, there have been discussions on the rights of victims and one of the rights of a victim of crime is to obtain compensation. Schemes for victim compensation have been framed by almost every State and that is a wholesome development. But it is important for the Central Government and the State Governments to realize that persons who suffer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h prepared by the NHRC entitled Suicide in Prison-prevention strategy and implication from human rights and legal points of view , (iii) the communications sent by the NHRC referred to above, (iv) the compendium of advisories issued by the Ministry of Home Affairs to the State Governments, (v) the Nelson Mandela Rules and (vi) the Guidelines on Investigating Deaths in Custody issued by the International Committee of the Red Cross to the Director General or Inspector General of Police (as the case may be) in charge of prisons in every State and Union Territory. All efforts should be made, as suggested by the NHRC and Ors. to reduce and possibly eliminate unnatural deaths in prisons and to document each and every death in prisons - both natural and unnatural. 3. The Union of India through the Ministry of Home Affairs will direct the NCRB to explain and clarify the distinction between unnatural and natural deaths in prisons as indicated 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 sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight and all State Governments should concentrate on making this a reality for all, including prisoners. The experiences in Karnataka, West Bengal and Delhi to the effect that medical facilities in prisons do not meet minimum standards of care is an indication that the human right to health is not given adequate importance in prisons and that may also be one of the causes of unnatural deaths in prisons. The State Governments are directed to study the availability of medical assistance to prisoners and take remedial steps wherever necessary. 9. The constitution of a Board of Visitors which includes non-official visitors is of considerable importance so that eminent members of society can participate in initiating reforms in prisons and in the rehabilitation of prisoners. Merely changing the nomenclature of prisons to Correction Homes will not resolve the problem. Some proactive steps are required to be taken 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 include a violation of bodily integrity through sexual violence - it could be to satisfy the lust of a person in authority or for some other reason. The 'Mathura Rape Case' is one such incident that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a terribly disadvantaged and vulnerable condition. All these forms of custodial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of unnatural deaths in the category of 'others'. What does this category encompass? We have not been provided any information in this regard by the Union of India and it is submitted by the learned Amicus, that the NCRB should be directed to explain the difference not only between a natural death and an unnatural death but also to clarify the sub-categorization of 'others' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 could be employed to reduce the number of suicides in prisons. Among them are visits and contact that the prisoner could have with the family, constructive occupation in prison, instilling hopes and plans for the future and support from staff. 14. The NHRC also conducted a National Seminar on Prison Reforms on 15th April, 2011. The recommendations made in the National Seminar have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates 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 inquest. The Model Autopsy Form was prepared after ascertaining the views of the States and discussing with experts in the field the necessity of having such a document. The Form was modeled on the United Nations Model Autopsy Protocol but was not adopted as it is. Some incidental improvements were made, particularly with regard to the conduct of inquests. The communication encl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 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 isolation that a prisoner has and would have an impact on his or her mental stability thereby reducing the possibility of any harmful activity by the prisoner. 24. On the specific issue of custodial deaths, the learned Amicus drew our attention to Rule 71 of the Nelson Mandela Rules to submit that any custodial death, disappearance or serious injury shall be reported without delay to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isoners 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 observation and appropriately treated. Paragraph 13.62 provides that whenever an epidemic occurs, the Medical Officer shall at once arrange for vaccination or inoculation as the case may be of all prisoners, prison personnel and members of their families. Paragraph 13.63 provides that overcrowding must be strictly avoided both in the hospital as well as in every cell and ward. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be desired and there are quite a few unnatural deaths in prisons. Suggestions and recommendations made by the Central Government do look good on paper but they do not seem to have any remedial effect. Perhaps it is time that the Ministry of Home Affairs takes a more proactive interest in prisons and prison reforms by having sensitization programmes for those at the helm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 made a reference to Section 176(1A) of the Code of Criminal Procedure, 1973 which mandates that where there is a death or disappearance from the custody of the police or any other custody authorized by a Magistrate or a Court, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 of prisoners should be more humane and the dehumanizing effect of imprisonment should be reduced. 2. The involvement of NGOs should be encouraged especially with first-time offenders. 3. Counseling should be encouraged and the State Governments should engage the services of psychologists or social counselors who could visit the prisons on a daily basis to cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion 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 after acquittal in a full dress trial. This Court held that the Petitioner was entitled to compensation for the illegal detention and it rejected the stale and sterile objection of the State Government that the Petitioner may if so advised file a suit to recover damages. This Court took the view that the refusal to pass an order of compensation would be doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evolved in cases of established unconstitutional deprivation of personal liberty or life. This Court summed up the law in the following words: Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrations 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 suspicious circumstances. The post mortem report indicated that the cause of death was asphyxia as a result of strangulation and ante mortem injuries by blunt weapons. The Gauhati High Court awarded compensation for the unnatural death in custody. d. Madhuben Adesara v. State of Gujarat (R/SCR.A./536/2010 (unreported)) The deceased was brutal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 death was due to carelessness, non-seriousness and negligence in not extending medical treatment. In view of the unnatural death in custody the Jammu & Kashmir High Court awarded the compensation to the next of kin of the deceased. n. Mrs. Meena Singh v. State of Bihar 2001 Cri. LJ 3573. The victim was attacked and killed by co-prisoners by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 Attorney General and learned Counsel for the National Forum. All of them have painstakingly taken us through a plethora of documents but, as mentioned above, the existence of volumes of documents relating to unnatural deaths in prisons does not necessarily resolve the problem that we are confronted with and which was brought to our notice by Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 so far. The unnatural death of any child in need of care and protection or in conflict with law and in a child care institution needs attention since it is these voiceless children who need to be heard. It is time that unnatural deaths of children in child care institutions are seriously looked into by all concerned if we are to provide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this regard, the services of recognized NGOs can be taken and encouraged. 6. While visits to prison by the family of a prisoner should be encouraged, it would be worthwhile to consider extending the time or frequency of meetings and also explore the possibility of using phones and video conferencing for communications not only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 they are kept in custody either because they are in conflict with law or because they need care and protection. Necessary steps should be taken in this regard by 31st December, 2017. 58. We expect the above directions to be faithfully implemented by the Union of India and State Governments. In the event of any difficulty in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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