RE- INHUMAN CONDITIONS IN 1382 PRISONS (JI)versus.

                         [2016) 7 S.C.R. 1001



      RE - INHUMAN CONDITIONS IN 1382 PRISONS (JI)                          A
                (Writ Petition (Civil) No. 406 of2013)
                         OCTOBER 03, 2016
       [MADAN B. LOKUR AND R.K. AGRAWAL, JJ.]
       Constitution of India - Art. 21 - Right to life - Right to live      B
with dignity - Inhuman conditions in prisons - Over-crowding in
prisons to the extent of more than 150% of the permissible limit - In
spite of direction of Supreme Court, prison authorities not able to
take effective steps for reducing over-crowding in jails - Held:
Prisoners, both under-trials and convicts, have certain fundamental         c
rights and human rights, which cannot be ignored - The States and
the lnspedor General of Prisons directed to prepare a viable Plan
of Action for reducing the prison population - Union Government
through Ministry of Home Affairs directed to obtain status of
compliance of orders passed - Prison - Under trial prisoners -
Convict prisoners.                                                          D
      Juvenile Justice - Prison Manual - Manual for juveniles in
custody - Preparation of - Delay - Held: Minist1y of Women and
Child Development to expedite the preparation of the Manual and
ensure it is ready on or before 30'1' November, 2016 - Jzn 1enile Justice
(Care and Protection of Children) Act, 2015.                                E
      D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh
      (1975) 3 SCC 185: 1975 (2) SCR 24; State of
      Maharashtra v. Prabhakar Pandurang Sangzgiri AIR
      1966 SC 424: 1966 SCR 702; Sunil Batra v. Delhi
      Administration (1978) 4 SCC 494: 1979 (1) SCR 392;                    F
      Charles Sobraj v. Supdt., Central Jail, Tihar (1978) 4
      SCC 104: 1979 (1) SCR 512; Francis Coralie Mullin
      "Administrator, Union Territory of Delhi (1981) 1 SCC
      608: 1981 (2) SCR 516; Nilabati Behera v. State of
      Orissa (1993) 2 SCC 746: 1993 (2) SCR 581; D.K.
      Basu v. State of W.B. (1997) 1 SCC 416: 1996 (10)                     a
       Suppl. SCR 284; Mehmood Nayyar Azam " State of
      Chhattisgarh (2012) 8 SCC 1: 2012 (8) SCR 651 -
      relied on.
      Re-Inhuman conditions in 1382 prisons v. (2016) 3 SCC
      700: 2016 (1) SCR 1090 - referred to.                                 H
                                  1001
1002            SUPREME COURT REPORTS                         (2016] 7 S.C.R.



 A                             Case Law Reference
       2016 (1) SCR 1090                   referred to              Parat
       1975 (2) SCR 24                     relied on                Para8
       1966 SCR 702                        relied on                Para8
 B     1979 (1) SCR 392                    relied on               Para 9
       1979 (1) SCR 512                    relied on               Para 10
       .1981 (2) SCR 516                   relied on               Para 10
       1993 (2) SCR 581                    relied on               Para 10
 c     1996 (10) Suppl. SCR 284            relied on               Para 10
       2()12 (8) SCR 651                   relied on               Para 10
             CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 406
       of2013
 D           Under Article 32 of the Constitution oflndia.
             Gaurav Agrawal, (AC), Adv., for the Petitioner.
              Neeraj Kishan Kaul,ASG., Ms. V. Mohana, Sr. Adv., C.D. Singh,
       Suryanarayana Singh, Mahaling Pandarge, Sanchar Anand, A.
       Mariarputham, AA Gs., Ms. Sushma Manchanda, R.M. Bajaj, Ms. Bi nu
 E
       Tamta, G.S. Makker, B.K. Prasad, Ashok Kumar Singh, D. Mahesh
       Babu, Kamal Mohan Gupta, Samir Ali Khan, Chandra Prakash, Kuldip
       Singh, Guntur Prabhakar, M~. Prer11a Singh, Shuvodeep Roy, (for Mis
       Corporate Law Group), Rudreshwar Singh, Gautam Singh, Krishna Kant
       Dubey, M.S. Doabia, S.S. Rawat,Apoorv Kurup, V.C. Shukla,Anshuman
 F     Srivastava, Apoorva Bhumesh, Ms. Hemantika Wahi, Ms. Puja Singh,
       Ms. Aagam Kaur, Sanjay Kumar Visen, Ms. Pragati Neekhra, Sunil
       Fernandes, Puneeth K.G., Ms. Astha Sharma, Tapesh Kumar Singh,
       Mohd. Waquas, Adity Pratap Singh, Lagnesh Mishra, Parikshit P. Angadi,
       V.N. Raghupathy, Mishra Saurabh, Nishant Katneshwarkar, Sapam
       Biswajit Meitei, Naresh Kumar Gaur, Ms. Linthoin Gambi Thongam,
 G
       Ashok Kumar Singh, K.N. Madhusoodhanan, Pragyan Sharma, Shikhar
       Garg, T. G. Narayanan Nair, Mrs. K. Enatoli Serna, Edward Belho, Amit
       Kumar Singh, K. Luikang Michael, Balaji Srinivasan, Ms. Anindita Pujari,
       Santosh Kumar, Pranav Kumar, Apoorv Singhal, S.S. Shamshery, Amit
       Sharma, Prateek Yadav,Ankit Raj, Ms. Ruchi Kohii, Ms. Aruna Mathur,
 H     Yusuf Khan, Avneesh Arputham, Ms. Anuradha Arputham, (for Mis
           RE - INHUMAN CONDITIONS JN 1382 PRISONS (II)                      1003


Arputham Aruna & Co.), Gopal Singh, Rituraj Biswas, Ms. Varsha                A
Poddar, B. Balaji, Muthuvel Palani, A. Arvind, S. Udaya Kumar Sagar,
Baskula Athik, Ms. Pragati Neekhra, Utkarsh Sharma, Ashutosh Kumar
Sharma, Ms. Rachana Srivastava, Sukrit R. Kapoor, Soumik Ghosal,
Parijat Sinha, Balasubramanian, K.V. Jagdishvaran, Mrs. G Indira,
Franklin C«esar Thomas, Chand Qureshi, M.P. Siddiqui, V.G. Pragasam,
                                                                              B
T.N. Rama Rao, Hitesh Kumar Sharma, T. Veera Reddy, Advs. for the
Respondents.
           The Order of the Court was delivered by
       MADAN B. LOKUR, J. 1. By our order dated S1h February,
       1
2016 we had drawn attention to over-crowding in prisons and had given         c
directions wi1ich would assist in reducing the prison population and
generally improve the living conditions of prisoners.
        2. When this petition was listed on l 41h March, 2016 we had noted
that the Ministry of Women and Child Development of the Government
oflndia had set up a Committee on 241h February, 2016 for drafting a          D
Manual similar to the Prison Manual prepared by the Ministry of Home
Affairs of the Government of India concerning issues pertaining to
juveniles in custody either in Observation Homes or Special Homes or
Places of Safety in terms of the Juvenile Justice (Care and Protection of
Children) Act, 2015. We were informed that although the Committee
was required to submit its report by 31" May, 2016 the time given was         E
rather sroi:J:. We were in agreement with the Member Secretary of the
Committee in this regard and had expressed the view that there was no
need to showunduc :-.aste in the preparation of the Manual or produce a
half baked document. We had also suggested the inclusion of
representatives from academia and NGOs in the drafting process~               F
       3. The matter was again taken up on 6 h May, 2016 when we
                                                 1


were informed by learned Amicus thatthe Manual for juveniles in custody
would take about three months for completion. With regard to over-
crowding in jails, the learned Amicus submitted that there are several
jails where over-crowding is to the extent of more than 150%, meaning         G
thereby that there are more than one and a half times the number of
prisoners than the permissible limit. It was submitted that an excessive
prison population has its own problems of hygiene, sanitation,
management, discipline etc. The problem of over-crowding cannot be
1
    (2016) 3sec100                                                            H
1004            SUPREME COURT REPORTS                           [2016] 7 S.C.R.


A      looked at in isolation. He submitted that in the first instance the States
       may be directed to identify jails in which over-crowding is to the extent
       of l50% or more so that further directions could be given. On the basis
       ofthis submission we called for information and now find that the situation
       continues to be not only tragic but also pathetic. Learned Amicus has
       drawn our attention vide his Note dated 20.9.2016 to over-crowding to
 8
       the extent of 150% or more in jails in Assam (8), Chhattisgarh ( 17),
       Jharkhand (3), Karnataka (7), Kerala (21 ), Madhya Pradesh (5),
       Maharashtra ( 16), Rajasthan (2 I), Uttar Pradesh (47) and Delhi (12). It
       is unfortunate that in spite of our directions the prison authorities have
       not been able to take any effective steps for reducing over-crowding in
 c     jails.
              4. On the submission of the learned Amicus for issuance offurther
       directions, we had vi de our order dated 61h May, 2016 expanded the
       mandate of the under-trial Review Committee to examine the cases of
       under-trials who fall in the following categories:
 D           a) Become eligible to be released on bail under Section
                167(2)(a)(i)&(ii) of the Code read with Section 36A of the
                Narcotic Drugs and Psychotropic Substances Act, 1985 (where
                persons accused of section 19 or section 24 or section 27 A or
                for offences involving commercial quantity) and where
 E              investigation is not completed in 60/90/180 days;
              b) Are imprisoned for offences which carry a maximum
                 punishment of2 years;
             c) Are detained under Chapter VIII of the Criminal Procedure
                Code i.e. under Sections I 07, 108, I 09 and 151 ofCr.P.C.;
 F
             d) Become sick or infirm and require specialized medical
                treatment (S.43 7 of the Code);
             e) Women offenders (S.437 of the Code);
             f) Are first time male offenders between the ages 19 and 2 I
 G               who are in under trial custody for offences punishable with
                 less than 7 years of imprisonment and have suffered at least
                 l/4'h of the maximum sentence possible;
             g) Are of unsound mind and must be dealt under Chapter XXV
                of the Code;
 H
      RE - INHUMAN CONDITIONS IN 1382 PRISONS (II)                             1005
                 [MADAN B. LOKUR, J.]

      h) Are eligible for release under Section 437(6) of the Code,             A
         wherein in a case triable by a Magistrate, the trial of a person
         accused of any non-bailable offence has not been concluded
         with in a period of sixty days from the first date fixed for taking
         evidence in the case;
      5. We had also required the States and the Inspector General of           B
Prisons to prepare a Plan of Action either to reduce over-crowding or to
augment the infrastructure so that there is more space available for
each prisoner.
       6. On the basis of the above, we heard learned counsel for the
parties and the learned Amicus and find that more than sufficient time          c
has elapsed but the Manual for juveniles in custody has not yet been
prepared by the Ministry of Women and Child Development of the
Government of India. Accordingly, we are left with no option but to
direct the said Ministry to expedite the preparation of the Manual and
ensure that it is ready positively on or before 301h November, 2016.
                                                                                D
       7. We also find that not a single State or Union Territory has
bothered to prepare a Plan of Action and bring it to our notice or to the
notice of the learned Amicus. Consequently, we are left with no option
but to direct the States and the Inspector General of Prisons to prepare
a Plan of Action as already directed on 61h May, 2016 for reducing the
prison population. In this context we may mention that the learned Amicus       E
has informed us on the basis of affidavits filed by some of the States,
that there are proposals for constructing additional barracks or jails but
these appear to be ad hoc proposals with no time limit specified for
completion and in some cases it is not clear whether provision has been
made for providing resources for the construction. A viable Plan of              F
Action should be prepared within the next six months and in any event
by 31" March, 2017. Information in this regard should be given to the
learned Additional Solicitor General and the learned Amicus.
       8. We are a little distressed to note that even though this Court
has held on several occasions that prisoners both under trials and convicts     G
have certain fundamental rights and human rights, little or no attention is
being paid in this regard by the States and some Union Territories including
the National Capital Territory of Delhi. Certainly fundamental rights and
human rights of people, however they may be placed, cannot be ignored
only because of their adverse circumstances. We need only remind the
                                                                                 H
1006                SUPREME COURT REPORTS                        [2016] 7 S.C.R.


A      Union of India and the State Governments that as far back as in 1975
       this Court reminded us in D. Bliuwm Moli"n P"tn"ik v. St"te ofAnd/1r"
       Pradesh= (referring to a decade old decision· in St"te of Mallaraslltra
       v. Prabhakar Pandurang SangzgirP ) that : .
              "Convicts are not, by mere reason of the conviction, denuded of
 B           all the fundamental rights which they otherwise possess. A
              compulsion under the authority oflaw, following upon a conviction,
             to live in a prison-house entails by its own force the deprivation of
              fundamental freedoms like the right to move freely throughout
             the territory of India or the right to "practise" a profession. A man
             of profession would thus stand stripped of his right to hold
 c            consultations while serving out his sentence. But the Constitution
              guarantees other freedoms like the right to acquire, hold and
              dispose of property for the exercise of which incarceration can
              be no impediment, likewise, even a convict is entitled to the
              precious right guaranteed by Article 21 of the Constitution that he
 D            shall not be deprived of his life or personal liberty except according
              to procedure established by law."
              9. Similarly, a Constitution Bench of this Court held in Sunil Batrtt
       v. Del/ii Administration" in paragraph 213 of the Report as follows:
              "It is no more open to debate that convicts are not wholly denuded
 E            of their fundamental rights. No iron curtain can be drawn between
              the prisoner and the Constitution. Prisoners are entitled to all
              constitutional rights unless their liberty has been constitutionally
              curtailed (see Procunier v. Martinex 5). However, a prisoner's
              liberty is in the very nature or things circumscribed by the very
              fact of his confinement. His interest in the limited liberty left to
 F            him is then all the more substantial. Conviction for crime does not
              reduce the person into a non-person 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.
 G            McDonel/. 6 )."
               10. There are a host of decisions rendered thereafter by this Court
       2 (1975) 3   sec
                      185
       3
         AIR 1966 SC 424
       • (1978) 4   sec
                      494
       '40 L Ed 2d 224 at 248 (1974)
 H     '41L.Ed.2d935 at 973 (1974)
      RE - INHUMAN CONDITIONS IN 1382 PRISONS (II)                             1007
                 [MADAN B. LOKUR, J.]

on the same subject of the fundamental rights and human rights of               A
convicts and under trial prisoners repeated every decade over the last
so many years. We may mention only a few of them: Cltarles Sobraj v.
Supdt., Central Jail, Ti/tar, 7 Francis Coralie Mullin v. Administrator,
Union Territory of Del/ii, 8 Nilabati Be/1era v. State of Orissa 9 and
D.K. Basu v. State of W.B. 10 More recently, in Mel1mood Nayyar
                                                                                B
Azam v. State of Cltltattisgarli 11 this Court observed in paragraph 38
of the Report as follows:
      "It is imperative to statethat it is the sacrosanct duty of the police
      authorities to remember that a citizen while in custody is not
      denuded of his fundamental right under Article 21 of the
      Constitution. The restrictions imposed have the sanction of law           c
      by which his enjoyment of fundamental right is curtailed but his
      basic human rights are not crippled so that the police officers can
      treat him in an inhuman manner. On the contrary, they are under
      obligation to protect his human rights and prevent all forms of
      atrocities."                                                              D
Unfortunately, it seems that the views of this Court over the 50 years
(since Prabhakar Pandurang Sangzgiri in 1966) have continuously
fallen on deaf ears and the situation does not seem to be changing even
now.
       11. Unless due importance is given to the fundainental rights and        E
human rights of the people, the. right to life and the right to live with
dignity under Article 21 of the Constitution will ,have no meaning.
        12. Under these circumstances, we are constrained to direct the
Union oflndia through the Ministry of Home Affairs to obtain the status
of compliance of our orders passed on S'h February 2016 and 61h May,            F
2016 as on 30'h September, 2016. The information should be collated by
the Ministry of Home Affairs and shared with the learned Additional
Solicitor General and the learned Amicus so that even the rights of
prisoners, whether convicts or under trials are given due importance.
The needful be done before the next hearing, that is l 81hOctober, 2016.        G
Ankit Gyan                                                 Matter adjourned.
1 (1978)4 sec 104

' ( 1981) 1 sec 608
• (1993) 2 sec 746
10
   (1997) 1sec416
11
   (2012) s sec 1                                                               H