Supreme Court of India
SUNIL BATRAversusDELHI ADMINISTRATION
- Citation
- 1979 INSC 271
- Decided
- 20 December 1979
- Disposal
- Case Allowed
- Bench
- V R KRISHNA IYER
Holding
The Court held that the prisoner Prem Chand was illegally tortured, the Superintendent is liable, and the Supreme Court has jurisdiction under Article 32 to issue writs and directives to protect prisoners' constitutional rights.
Summary
Sunil Batra, a death‑row convict, wrote to the Supreme Court alleging that another prisoner, Prem Chand, had been brutally tortured by a warder in Tihar Jail to extort money. The Court, acting on a habeas corpus petition under Article 32, appointed amicus curiae who verified the injury and the attempts to conceal it. The Court held that the torture was illegal, that the Superintendent could not escape liability despite not being the direct perpetrator, and that the State must act against collusive police. It issued comprehensive directives to prevent corporal punishment, establish grievance boxes, ensure regular judicial visits, and reform prison administration in line with the Prisons Act and constitutional guarantees. The writ petition was allowed, mandating immediate relief for the victim and systemic prison reforms.
Issues considered
- The alleged torture of a prisoner violates fundamental rights under Articles 21, 19 and 14 of the Constitution.
- Whether the Supreme Court can entertain a habeas corpus petition for relief other than release of the prisoner.
- Whether the Superintendent of the jail can be held responsible for the acts of his sub‑ordinates.
- The scope of the Court’s power under Article 32 (and Article 226) to issue remedial directions for prison administration.
- The duty of the State to investigate and punish collusive police and prison officials.
Legislation cited
- Constitution of Indias. Article 14, s. Article 19, s. Article 21, s. Article 226, s. Article 32
- Indian Penal Code, 1860s. 385
- Prisons Act, 1894s. 27, s. 29, s. 44, s. 59, s. 60, s. 61
Subjects
habeas corpusprison torturefundamental rightsArticle 32prison reformjudicial interventionprisoner rightsconstitutional lawIndia
Judgment
557
SUNIL BATRA A
v.
DELHI ADM;fNISTRATION
December 20, 1979
{V. R. KRISHNA lYEiR, R. S. PATHAK AND 0. CHINAPPA REDDY, JJ.] B
Consti/1'.l.tion of India 1950, Article 32-Tortune inflicted on. prisoner in jail-
factum of torture brought to notice of court-power and responsibility of CoUrt
'ii to intervene and protect prisoner.
1 Prisons Act 1894, Ss 27, 29 and 61 & Punjab Prison Manual, Paras 41, 47t
49 and 53--Solitary confinenient, denial of privileges, amenities to prisoners-to C
be imposer/. with judicial appraisal of Sesaions Judge-Prison Manual to be; ready
reach oj prisoners-visits to jails by vis(tors, official and non-official-keeping
of grie1•ance boxes in prisons and remedial ·action on grievances by Sessions
fudges-PeP'i0tlical reports to be forwarded to the High Court-refornis sug.-.
gested in vrison management and procedure.
Legal ~tid-provision, of free legal aid to prisoners-necessity of.
The petitioner, a convict unde;r death sentence, through al letter to one of
the Judges Clf this Court aJleged that torture· was practised, upon another prisoner
·by a jail "\"lli'arder, to extmct money from the victim through his visiting relations.
The letter was converted into a habeas corpus proceeding. The Court issued
notice to the State and the concerned officials. It also appointed amicus curiae
and autho1 ised them to visit the prison, meet the prisoner, see relervant docu- E
ments 3.nd interview necessary witnesses so as to enable them to inform them"'
selves about the surrounding circumstances and the scenMio of events.
The an-1icus curiae after visiting the jail and examining \Vitnesses reported
that the prisoner sustained serious anal injury because a rod was driven into
that aperture to inflict inhuman torture and that as the bleeding had not stopped,
•
!:to was removed to tho jail hospital and, later to the Irwin Hospital. It was also
reported that the prisoner's explanation for the anal rupture was an unfulfilled
demand of the wa1der for money, and that attempts were made by the depart-
'
mentol officers to hush up the crime by overawing the prisoner an<l the jail
doctor and offering a story that the injury was either due to a fall or self-infl.ic..
tion or due to piles.
;
Allowing the writ petition.
HELD:
.(Per Krishn> Iyer and Chinnappa Reddy, JJ.)
I. la) Prem Chand the prisoner, hae been tortured illegaUy and the
"Superintendent cannot absolve himself from responsibility even though he may
not be dire:tly a party. Lack of vigilance is limited guilt. The primary guilb
cannot be fixed bocause a criminal case is pending or is in the offing. The B
State shall take oction against the investigating police for collusive dilatorine!l!i
and deviousness. (599 FJ
- -
-··-··-....- ---
558 SUPREME COURT REPORTS [l %0] 2 S.C.R:,
A (b) The Superintendent is directed to ensure that no corporal punishment
or personal violence on Prem Chand shall be inflicted. No irons shall be
forced on the person in vindictive spirit. [599 ITJ
(c) La1,1:yers nominated by the District Magistrate, Sessions Judge, High
Court or the Supreme Court will be given all' facilitiesi for interviews, visits ancr
confidential co1nmunicaotion with prisoners subject to discipline and security·
B considerations. The lawyers so designated shall bei bound to make periodical:
visits and record and report to the concel')led courts, results which have relevance
to legal grievances. [600 A-BJ
(d) Within the next three months, Grievance Deposit Boxes shall be Diilin- y .
tained by or under the orders of the District Magistrate <md the Sessions Judge
which will be opened as frequently as is deemed fit and suitable action taken:
c on complaints made. Access to such boxes sha.Jl be afforded to all Prisoners •.
[600 CJ
(e) District Magistrates and Sess_ions Judges shall, persona1ly or through·
iiurroga-tes, visit prisons in their jurisdiction! and afford effective opportunities for--
ventilating legal grievances, shall make expeditious enquiries there into and take-
suitable remedial action. In appropriate cases report$ shall be made to the Highr
D Court for. the latter to initiate, if found necessary, habeas action. [600 D]
(f) No solitary or punitive cell, no hard labour or dietary change as painful\
additive, no other punishment or denial of privileges and amenities, no trttsfer
to other prisons \Vith penal consequences, shall be imposed 'vithout judicial'
appraisal of the Sessions Judge and where such intimation, an account of emer~
gency is difficult such information sht&ll be given within two days- of th~
action. [601 B-C] •
E
2. Jn out era of hun1an rights' consciousness the habeas writ has functional'
plurality and the constitutional regard for human decency and dignity is tested>
by this capability. [563 El -----;r-
3. Protection of the prisoner within his rights is part of the office of·
Article 32. [564 CJ
F 4. It behove~·the court to insist that, in the, eye· of law, prisoners zre1 persons,
not animals, and to punish the deviant •guardians.' of the prison system where·
they go berserk and defile the dignity of the human inmate. Prison houses-
are part o[ Indian earth and the Indian Constitution cannot be held at bay by ..
jail officials 'dressed in a little, brief authority', when Pa-rt III ~.invoked by a.
convict. When a prisoner is traumatized, the C'Onstitution suffers a shock.
[564 D-EJ I
G ,
5. The courts in America have, through the decisional process, brought the- .-f-.--.i::
rule of law into the prison system pushing back, pro-tanto, the 'hands-off' doctrine;.
The content of our constitutional liberties being no less, the: dynam;cs. cf habens·
writs ther~ developed help the judicial process heire1. The full poteDtifil of
Arts. 21, 19 & 14 after Maneka Gandhi has been unfolded by this Court in
Hoskot and Batra. 1"oday, human rights jurisprudence in1 India }Jas a constitu-
H tional status ood sweep. [573 A, 574 DJ ,
6. Rulings of this Court have highlighted the fact that the framers of the
Constitution have freed the powers under Art. 32 from the rigid restraints of
SUNIL BATRA v. DELHI ADMINISTRATION 559
the traditional English writs. Flexible directives, even affirmative action 1noulded A
to grant relief, may realistically bo issued and fall within its fertiJ·, width. [575 f]
Dwarkanath Y. Income Tax Officer [1965] 3 SCR 536 referred to.
7. 'i\fhere inju~tice, verging on inhumanity, emerges from hacking human
rights ,guaranteed in Part III and the victim beseeches the Court to intervene
and re"lieve, the Court will be a functional futility as a constitutional instrii-
rnentality if it does not go into action until the wrong is righted. The Court B
is not a distant abstraction omnipotent in the books but an activist institution
which is the cynosure of public hope. The court can issue writs to meet the
new challenges. [576 DJ
8. i\ffirmed in unmistakable& terms that the court has jurisdiction under Art. 32
¥
and so too under Art. 226, a clear power and, therefore,, a public duty to give
relief to sentence· in prison setting. [576 F1 c
9. In Sunil Batra v. Delhi Administration (1978) 4 SCC 409 this Court
rejected the 'hands-off' doctrine ~nd ruled that funda-mental rights do not flee:
the person at> he enters the prison although they may suffer shrinkage necessitated
by incarceration. Our Constitutional culture has now crystallised in favour of
prison justice and judicial jurisdiction. [576 H·577 A}
D
10. Where the rights of a prisoner, either under the Constitution. or under
other l'aw, are violated- the v.•rit power of the court can and should run t()I
his; rescue. There is a warrant for this vigil. 'The court proce~ casl<i the convict
_ \/,into t'lll~-prison system and the deprivation of his freedom is not a \,Jind peniten·
'~ tiary altflicti<Jn but a beJighted institutionalisation geared to a social good. The
i..... court bas a continuing responsibility to ensure that the constitutional purpose· of
the deprivation is not defeated by the prison administration. [577 E-F) E
11. Whether inside prison or outside, a person shall not be deprived of his
guaranteed freedom save by methods 'right, just and fair'. [578 E.]
12. A prisoner \\'ears the armour of basic freedom even behind bars and
that on breach thereof by lawless officials the law will respond to hi!l distress
signals through 'writ' aid. The Indian human ha~ a constant companion-the F
court armed with the Constitution. [578 H]
Maneka Gandhi v. Union of India [1979] 1 SCC 248 : N. Tl. lloskot v.
Mahar,2'htra, [1979] I SCR 192, referred to.
13. Implicit in the power to deprive the sentencee of his personal liberty,
• the Court bas to ensure that no more and no less than is \Varrnn1ed b:Y tbci
sentence happens. If the prisoner breaks down because of mental torture,
G
psychic; pressure or physical infliction beyond the licit limits of lawful in1prison-
ment the Prison Administration shall be• liable for the excess. On the contrary,
if an influential convict is able to buy advantages and liberties to avoid 011
water down the deprivation implied in the sentence the Prison Establishment will
be caUed to order for such adulteratiom or dilution of court sentences by execu-
tive palliation,. if unwarranted by law. [579 B-CJ
H
14. The court has power and responsibility to intervene and protect the
prisoner against n1ayhem. cn1de or subtle, and may use habeas corpu5 for
560 SUPREME COURT REPORTS [1980J 2 s.c.R.
·A enforcing in-prison humanism and forbiddance of harsher restraints arid heavier
severities than the sentence carries. [579 E]
I 5. Law in the books and in the courts is of no heJp un1ess it reaches the
1
prisoner in understandable, language and available form. There is therefore need
.to get ready a Priscners' IIandbook in the regional language and make them
freely available to the inmates. To know the law is the first step to be free
B from fear of unlaw. [582 CJ
!6(i) The most important right of a prisoner is to integrity of his ph)'Sical
person and mental personaJity. No prisoner can be personally subjected to
deprivations not necessitated by the fact of incarceration and the sentence of
court. [584 D, 583 CJ
C (ii) Jnflictions 1nay take n1any protean forms, apart from physical assaults.
Pushing the prisoner into a solitary cell, denial of a necessary amenity, and
more dreadful sometimes, transfer to a distant prison where visits or society of
friends or relatives may be snapped, allotment of degrading labour, a~ignment to
a desperate or tough goog and the like, may be punitive in effect. E\"ery such
1
affliction or nbridgeJnent is an infraction of liberty or Jife-in its wider sense· and
cannot be sustained unless Art. 21 is satisfied. There must be a corrective legal
D procedure, fair and reasonable and effective. Such infraction will be arbi~
under Article 14, if it is dependent on unguided discretion, unreasonable under
Art. 19 if it is irremediable and unappealable, and unfair under ~. 21 if it '
violates natural justice. Some prisoners, for their own safety, may. desire. segre-
gation. In such cases, \Vritten consent and immediate report tol higher authority
are the least, if abuse is to be tabooed. [584 F-H, 586 GJ
E (iii l Visit to prisoners, by fimily. and friends are a solace in insulation : and
only a dehumanised system can derive vicarious delight in depriving prison
inmates of rbis humane amenity. Subject, of course, to liearch and discipline
and other gecurity criteria, the right to society of fellow-men, parents and other
family n1embers cannot be denied in the light of Art. 19 ood its sweep.1 [586 ·H]
17. Prison power, absent judicial watch tower, may tend towards torture.
F The judges are gu~rdians of prisoners' rights because they havei a duty.-to secure
the execution af the1 sentences without C)kcesses and to sustain the personal liberties
of prisoners without violence on or violation of the inmates' personality. [588 D,
590 CJ
18. In a den1ocracy, a wrong to some one is a wrong to every one and an
unpunished criminal makes society vicariously guilty. [59~ DJ
G 19. When offences are alleged to have taken place within the prison,. there
•
should be no tinge or trace of departn1ental collusion or league between the
police and the prison staff. [605 A]
[Directives for which no specific time limit fixed except the urgency of their
implementation :
I (i) The State shall take early steps to prepare in flindi, a Prisoner's
H Handbook and circulate copies to bring legal awareness home to the inmates.
Periodical jail bulletins stating bow improvements and habilitative programmes
are brought into the prison may ·create a fellowship which will ease tenSions.
SUNIL BATRA V. DELHI ADMINISTRATION 561
A prisoners' wall paper, which will freely ventilate grievainces \Yill also reduce A
•tress. All! these are implementary of s. 61 of the Prisons Act. (601 D, El
(ii) The State shall take steps to keep up to the Standard Minimum Rules
for Treatment of Prisoners recommended by the United Nations, especially those
relating to work and wages, treatment with dignity, community contact arid
correctional strategies. [601 F]
(iii) The Prisons Act needs rehabilitation and the Prisoni l\.fanual total over· B
haul. A correctionaJ.·cum:orientation course is necessitous for the prison staff
inculcating the constitutional values, therapeutic approaches and tension-free
~ management. (601 HJ .
(iv) TJt~, prisoners' rights shall be protected by' the court by its writ juriscUc-
1ion plus c:ontempt power. To make this jurisdiction viable, free legal ser\'ices
to the prisoner programmes shall be promoted by professional organisations
recognised by the Coun such as for e.g. Free Legal Aid (Supreme Court)
c
Society. 11le District Bar shall, we recommend, keep a cell for prisoner relief.
I602 Al
(Per Pathak J. concurring)
1. The prisoner Prem Chand bas been tortured while in custody in the Tihar D
Jail. [605 DJ
' 2. The Superintendent of the jail to ensure that no- punishment or pe'rsonal
violence is inflicted on Pren1 Chand by reason of the complaint made. in· regard
to the torture. [605 El
3. Pressing need for prison reform and provision for a(lequare facilities to
prisoners, to enable them not only to be acquainted with their legal rights but
E
.aJso .!o record. their complaints and grievances and to have confidentia-1 interviewS
periodically with lawyers nominated for the1 purpose by the Oi'itrict h.fagistrate
<Jr the Court having jurisdiction. [605 G]
4. Impt~rative that District Magistrates and Sessions Judges shollid visit the
prisons in their jurisdiction and afford effective opportunity to the prisoners for
ventilating their grievaaces and \Vb.ere the matter lies within their powers, make.
.expeditious enquiry and take suitable remedial action. [605 H] F
5. Sessions Judge should be informed by the jail authorities of any punitive
action taken againsi a prisoner \\o'ithin two days of such :iction. {606 Al
6. A st.'1.tement by the Sessions Judge in regard to his visits, enquiries made
and action tl!lten thereon sball be submitted periodically to the High Court to
·acquaint it vrith the conditions preyailing in the prisons within its jurisdiction. G
,(606 BJ
ORIGINAL JURISDICTION: Writ Petition No. 1009 of 1979.
Under Article 32 of the Constitution.
Dr. Y. S. Chitale and Mukul Mudgal for the Petitioner.
H
Soli J. Sorabjee, Solicitor General of India, and R. N. Sachthey for
the Respondent.
562 SUPREME COURT REPORTS [1980] 2 s.c.R.
A The Judgment of V. R. Krishna Iye.r and 0. Chinnappa Reddy, .
\_..
JJ. was delivered by Krishna Iyer, J. R. S. Patliak, J. gave a sepa-
rate Opinion.
KRISHNA IYER, J.-This writ petition origillated, epistolary fashion.
in a letter by a prisoner, Batra, to a. Judge of this Court (one of us).
B
complaining o~ a brutal assault by a. Head Warder on another prisoner,
Prem Chand. Forms were forsaken since freedom was at stake and the
letter was posted on the Bench to be metamorphosed into a habeas
proceeding and wa' judicially navigated with electric creativity, thanks
to the humanist scholarship of Dr. Y. S. Chitale as amicus curiae, and )Ir
the erudite passion for affirmative court action of Shri Soli Sorabjee,
c the learned Solicitor General. Where the prison process is de-huma-
nised, forensic help, undeflected by the negative cruidities of the adver-
sary system, makes us dare where we might have daunted. The finest
hour of justice comes when court and counsel constructively collabo-
rate to fashion a relief in the individual case and fathom deeper tCJ
cure the institutional pathology which breeds wrongs and defies rights.
D Here, the individual is a prisoner whose anus was allegedly pierced
with a warder's baton and the institution is the Tiha.r Prison, right hi
the capital of the country and under the nose of the Home Mini~try.
The Perspective
This case is revelatqry of serveral sins in this central penitentiary. •
£ 'Something is rotten in the' State of Denmark!' The constitutional
imperative which informs our perspective in this habeas corpus pro-
ceeding must first be set out. The rule of law meets with its Water-
loo when the State's minions become law-breakers and so the court,
as the sentinel of the nation and the voice of the Constitution, runs
F down the violators wilb its writ and secures compliance with human
rights even behind iJron bars and by prison warders. This case is
at once a symptom, a symbol and a signpost vis a vis human rights in
prison situations. When prison trauma prevails, prison justice must
invigilate and hence we broaden our 'habeas' jurisdiction. Jurispru-
G
dence. cannot slumber when the very campuses ofi punitive justice wit-
ness torture.
•
The petitione.r does not seek the release of the prisoner because a
life sentence keeps him in confinment. But the dynamic role of
judicial remedies, after Batrcis case('), imparts to the habeas corpus
writ a versatile vitality and operational utility that makes the healing
u presence of the law live up to its reputation as bastion ·of liberty even
within the secrecy of the hidden cell. Blackstone called it 'the
(l) Sunil Batra v. Delhi Administration [1979] l SCR 392c
SUNJL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, /.) 563
great and efficacious writ in all manner of illegal confinement' and
Lord Deman proclaimed in 1839 that it had been 'fetr ag~ effectual
to an extent never known in any other country'. So long as Batra
remaiias good law, judicial policing of Bastille practices will broaden
to embarce the wider range of prison vices. Dr. Chitale drew our
attention to American legal literature discl(l;ing the trend while Shri
Soll Sorabjee for the Union of India, cited Corwin. Corwin's re- B·
marks on American constitutional law, referred to with approval in
Britra, bas our(') assent:
Federal courts have intensified their oversight of State
penal facilities, reflecting a heightened concern with the ex-
tent to which the ills that plauge so-called correctional insti- C:
tution overcrowding, understaffing unsanitary facilities, bru-
tality, constant fear of violence, lack; of adequate medica~ and
mental health care, poor food service, intrusive correspon-
dence restrictions, inhumane isolation, segregation, inade-
'1uate or non-existent rehabilitative and/or educational pro-
grams, deficient recreational opportunities-violate• the Eighth
Amendment ban on "cruel and unusual punishments."
'Ifae essence of the matter is that in our era of human rights
consciousness the habeas writ has functiona~ plurality and the constitu•
tional regard for human decency auci dignity is tested by this capability.
We ideologically accept the words of Will Durant( 2 ). "It is time for it; "
all good men to come to• the aid of their party, whose naTnd is civiliza-
tion." Likewise, we endorse, as1 part of our constitutional thought,
what the British Government's White Paper, titled 'People in Prison',
stated with telling effect :
A society that believes in the worth of individual beings Jr'
can have the quality of its belief judges, at least in part, by
the quality of its prison and probate services and of the re-
5:ources made available to them.
• The learned Solicitor General brought this key-note thought to our
notice in the matchless diction of Sir Winston Churchi!\ and briefly re- G·
ferred to in Batra ( ') in a speech seventy years ago :
The mood and temper of the public in regard to the treat-
ment of crime and criminals is one of the lllO!;t unfailing
tests of the civilisation of any country. A calm dispassionate
(I) Supplem,nt to Edward S. Corwin's. Th< Constitution p, 245 quoted in
l rnpra at p. 410.
(2) Cited in Suna Batra v. Delhi Adir 1:. (supra) at 422.
(3) Ibid at 423.
564 SUPREME COURT REPORTS [1980] 2 s.c.R.
.,..
•
recognition o~ the rights oft the accused, and even of the con-
victed criminal, against the State-a constant heart search-
ing by all charged with the duty of punishment-a desire 11.nd
eagerness to rehabilitate in ihe world of industry those who
have paid their due in the hard coinage of punishment :
tireless efforts towards the discovery qi' curative and regene-
'B rative processes : unfailing faith that there i~ a treasure, if
you can only find it in the heart of every man. These are
the symbols, which, in the treatment of crime and criminal,
mark and measure the stored-up strength of a nation, and
are sign and proof of the living virtue in it. ( ')
<: Truly, this is a perspectiv~setter and this is also the import of the,
Preamble and Art 21 as we will presently see. We are satisfied that
protection of the prisoner within his rights is part of the office of Art.
32,
'Prisons are built with stones of law' and so it behoves the court to
insis~ that, in the eye of law, prisoners are persons, not animals, and
punish the deviant 'guardians' of the prison system where they go
berserk and defile the dignity of the human inmate. Prison houses
are part 9f Indian earth and the Indian Constitution cannot be 'held
at bay by jail officials 'dressed in a little, brief authority', whetlj Part III
is invoked by a convict For when a prisoner is traumatized, the
Constitution ~ffers a shock. And when the Court takes, cognizance
of such violence and violation, it does, like the Hound of Heaven, 'But
with unhurrying chase, And unpurterbed pace, Deliberate speed, and
Majestic instancy' follow the official offender and frown down the
outlaw adventure,
-
if' The Facts
What are the facts which have triggered off this judicial action ?
The resume of facts, foul on its face, reveals the JegnI issues raised,
brings into focus the basics of prisoner's rights and helps the court •
-G forge remedial directives so as to harmonise the expending habeas juris-
prudence with dawning horizons of human rights and enlightened mea-
sures of prison discipline. Batra, a convict under death sentence
lodged in the Tihar Central Jail, came to know of a crime of torture
practised upon another prisoner, Prem Chand, allegedly by a jail warder,
Maggar Singh, as a means to extract money from the victim through his
n visiting relations. Batrn braved the consequences of Jail indignatiO)l
(1) Winston Churchill \Vhen speaking, on July 25, 1910., as Home Secret<'-ry
iii the House of Commons.
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer,!.) 565
and brought the incident to the ken of the Court, resulting in these
-(
• proceedings which, though not strictly traditional, are clearly in the
nature of habeas corpus writs and therefore, within the wider sweep
of Art. 32. The court issued notice to the State and the concerned
officials, appointed Dr. Y. S. Chitale and Shri Mukul Mudgal .as!
amicus, authorised them to visit the prison, meet the prisoner and
see relevant documents and interview necessary witnesses so as to
enable them to inform themselves about the surrounding circumstan-
ces and the cruel scenario of events. Counsel on both sides have
sensitized the issue of prison justice admirably and catalysed the
caus" of jail reforms effectively. The democratic hope of the profes-
sion is its 'people's orientation, not its lucrative potential nor its intellec- c:
tual intricacies. And service in the field of the handicapped human
sectors, like prisoners, is a social justice contribution. The enthusia-
stic work done in the case by the young lawyer, Shri Mudgal, assis-
ting Dr. Chitale, deserves our commendation, even as the unreserved
support rendered to the Court by Shri Sachthey is in the good tradition
of the Bar.
!lack to the facts. One Central episode round which the skein
of further facts is wound is beyond doubt, viz. that Prem Chand, the
prisoner, sustained serious anal injury on or about Augnst 26, 1979,
because a rod was driven into that sore ape.rture to inflict inhuman tor-
ture. The contemporaneous entry in the Jail Hospital register reads : E.
One prisoner Prem Chand s/o Pyara Lal has deve-
loped tear of anus du~ tq forced iq.sertion of stick by! Remarks of Superin-
someone,. He require surgical repair and his bleed- ~ tendent. Noted 27
ing has not stopped. He is to go to Irwin Hospital j Aug., 79 sd D.S.1.2.35 p.m.
ca.sulty immediately.
Sd/· p
(DR. KAPOOR)
2·00 p.m.
• The prisoner's later narration to the doctor in the Irwin Hospital cor-
roboraies the case. The unsuccessful and unworthy attempts, pre>-
sumably by overawing the prisoner and even the doctor, and other
G.
• dubious devices, which we do not now scan, to do away with this
primary incriminating factor by offering incredible alternatives like
ruptw-e of the anus by a fall or self-infliction or due to piles and sillier
stories. only show how the subtle torture of the officials could extract
falsehoods from the victim and even medical officers, exclupatory of
the official criminal whoever he be. There are some traces of attempts
to hush up the crime where the higher officers have not been that'
innocent. We are taken aback that the tardy polica investigation;
--- _.j..
SGS SUPREME COURT REPORTS [1980] 2 S.C.R •.
:.ti. with its lethargic pact4 and collusive ways, ha~ hardly done credit to the
Police Department's integrity, a fact that the Government will take
note of, withont institutional sheltering of police delinquents. Imagine
a police investigator, hunting for contradictions obviously to absolve
the head warder by interrogating Dr. Kapoor who bad made an
entry in the hospital register and told Dr. Chitale that the prisoner
had an anal rupture which could not be self-inflicted or caused by a
fall and was so serious as to require immediate removal to Irwin Hos-
pital, and making him say, long afterwards on 2-10-1979 by delaying
the laying of the chargesheet thus :
"A prisoner named Prem Chand •/o Prehlad was pro-
<(; duced before me for treatment on the afternoon of Snnday
26th August, 1979. He was bronght by some wa;der.
He was complaining of bleeding from boils on the buttocks.
'This was also told by the warder who brought him.
He was given the required treatment as he was kept under
observation on his request.
Next day during th"' ward rounds when I examined him,
(
he was having tears of anu~ and bleeding. On inquiring he
told that this has happened due to forced insertion of a stick
irito his anus.
Then he was referred to Irwin Hospital for further treatment.
V. K Kapoor 2-10-79"
Can human nature be such rubbec ?
More than the probity of the investigation and the veracity of the
ol<' . doctor are at stake-hope in human integrity without which human
dignity will be the first casualty.
These observations are not impressionistic but we leave it at
that since our primary purpose is to protect the person of the prisoner,
not to prosecute the offender. We do not wish to prejudice that
•G proce8s. Regrettably, the 'hearsay' affidavit of the Under Secretary
(Home), Delhi Administration, Shri Nathu Ram, blinks at the jail •
vices and merely dresses up the official version without so much as an
inquisitorial audit of the lurid happenings in a premier correctional
institution of the nation. We deplore the indifferent affiant's omni-
bus approval of every official conduct, whereas we should, instead,
have expected Government, which sincerely swears by human rights
and whose politiciil echelons in succession, over the decades; are not
strangers to the actualities in these detention campuses to have put
•
••
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J.) 567
:aside the tendency to white-wash every action with an official flavour. A
Where human rights afe at stake prestige has no place.
After the prisoner was subjected to brutal hurt he was removed to
the jail hospital and later to the Irwin Hospital but an his re-transfer
be was neglected; but we do not pursue the identity of the culprit or
the crime or the treatment since a police investigation i' under way. B
Nevertheless, we cannot but remark that whatever damage might hav(l
been done upto now, a secon<l investigation by a C.B.I. officer is justi-
> fied, if truth has been suppressed. Dr. Chitale pointed out certain
---- _i poignant facts such as the prisoner himself having been pressured into
-statements contrary to the case of anal infliction. We do not make
comments on them although we are unhappy at the way the busines~ c
of investigation has been done. Indeed, the potential for oblique
mutual help between the police and the prison staff makes Jail offences
by jail ofucia1s undetectable; and so0 to obviate this possibility, the
CB.I. may well be entrusted, as a regular practice, with such cases
The prisoner being a person, we cannot write him off.
D
The alleged offender, Warder Maggar Singh, may be left aside for
:a while. Thertj are other aspects of thei torture which demand deeper
probe and panacea. The prisoner's explanation for the anal rupture
is stated to be an unfulfilled demand for mOJJey, allegedly a general
practice. This shows, if true, that bribery, at the point of barbarity,
is a flourishing trade within 1he house of punishment itse1f. How
stern should the sentence be for such official criminals andl how diligent
should the State be to stamp out this wicked temptation ! If you want
to end prison delinquencies you must abolish the motivations and oppor-
tunities.
The counter-case, if we may so call it, of the Warder as discl0sed F
in the Superintendent's report, is equally disturbing, if true :
On 25-8-79 evening life prisoner Prem Chand S/o Sh.
Prahlad was produced before the Deputy Superintendent for
takinii Mandrix tablets. As he was in state of intoxicatiQn
because of taking Mandrix tablets which he admitted before
• the Deputy Superintendent, he was kept in a cell pending
G
orders of the Superintendent. Central Jail. He was taken to
the jail hospita] the next day i.e. on 26-8-79 on a: report from
the above said prisoner as he had pain in his anus and was
bleeding. The prisoner remained admitted into the jail hospital
upto 27-8-79, 2 p.m. when the Dr. V. K. Kapoor, Medical H
Officer, recommended for the shifting of this prisoner to the
Irwin Hospital with the report mentioned in the petition.
568 SUPREME COURT REPORTS [1980] 2 s.c.R.
The prisoner Prem Chand was shifted accordingly by Shri
Bachan Singh, Assistant Superintendent on duty on 27-8-79.
TI1e undersigned was informed that a case u/s 385 IPC
had been registered against warder Maggar Singh in-charge
of the ward No. 11 i.e. 40 cells with the police station Janak·
puri and investigation had started in this case. The result of
B the investigation is still awaited. The prisone~ was, however,
received back in the jail on 29-8-79 Qn being discharged
from the Irwin Hospital.
The prisoner, Prem Chand, was kept in a 'punishment cell' which,
according to counsel for the Administration, was not as bad as a soli-
c tary cell, although Dr. Chitale says that this was similar to the type of
insulated confinement condemned as unconstitutional by this Court in
Sunil Batra's case (supra). Coming to the competing version put for-
ward by the prison officials through the counter-affidavit of the Under
Secretary, the story, even if true, is strongly suggestive of a mafia-culture
prevasive illl the Tihar prison. A background of the ethos of the campus
D may be gleaned from portions of the report of the Superintendent,
Central Jail, Tihar, made by him with reference t~ the alleged torture
which is the subject matter of this case.
A number of prisoners in the Tillar Jail are habitual
offenders, professional criminals who have been inmates of
E the jail from time to time. A number of the said prisoners
are rarely visited by their relatives due to the fact that they
. do not want to associate with such persons. I~ has been seen
that such prisone.rs are mainly visited by other professionals
or habitual offenders in the field with whom they have had
former associations. . . . It has been noticed these types of
F prisoners have been able to develop a certain raport with some
of the lower staff in the jail namely Head Warders, Warders
etc. and obtain certain facilities illegally including smuggling
of numbers of items, i.e. drugs etc. for their use. It may also
be submitted that to check smuggling of narcotic( drugs
G against prisoners who indulge in such activities 30 cases of
narcotic offences were got registered against the prisoners
,.
with the Janakpuri Police Station during this year .... That .·~
95 prisoners were transferred from the jail to Haryana due to
administrative reasons which include indiscipline and violation
of jail regulations by them and otherwise derogatory behaviour
B during the last year. . . . . . This year also about 22 cases
have been recqmmended by Superintendent, Jail for
transfer . . . . In para 5 68 (b) and the note thereunder of the
. SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !.) 569
Jail Manuai the habituals are required to be kept separate A
from the casual prisoners but due to non-availability 'of any
other jail in Delhi they are being kept in Tihar Jail, which
requires a lot ofj vigilance on the part of the jail officers. (b)
It may also be mentioned that due to paucity of accommoda-
tion, the said jail is occupied by double the number of
prisoners than it is otherwise authorised. B
To aggravate the malady, we have tQe fact that a substantial number
of the prisoners am under-trials who have to face, their case in court
j and are presumably innocent until convicted. By being sent to Tihar
Jail they are, by contamination, made criminals-a custodial perversity
which violates the test of reasonableness in Art. 19 and of fairness in C
Art. 21. How cruel would it be if one went to a hospital for a check-
' up .and by being kept along with contagious cases came home with a
new disease ! We sound the tocsin that prison reform is now a consti-
tutional compulsion and its neglect may lead to drastic court action.
It would appear that around 300 persons are taken in and out D
daily between the prison and the courts. And when there are political
agitations. and consequent police arrests and remand to custody, the
• under-trial strength swells in numbers. Since many Qfficers busy them-
selves with production· of p.risoners in court, the case of the Superin-
tendent is that the. other. prisoners "try to .do mischief, make thefts of
• other prisonets who go on work, smuggle things and everz resort to E
assaults."
To sum up, the Tihar prison is an arena of tension ,trauma, tant-
rums .and crimes of .violence, vulgarity and ccrruption. And to cap it all,
there occurs the contamination of pre-trial accused with habituals and
"injurious prisoners of international gang." The crowning piece is that p
the jail officials themselves are allegedly in league with the criminals
in thei cells. That is, there is a large network of criminals, officials and
non-officials in the house of . correction ! Drug racket, alcoholism,
smuggling. violence, theft, unconstitutional punishment by way of
solitary cellular life and transfers to other jai~·are not uncommoo. The
Administration, if it does not immediately have the horrendous sitU;t-, G
lion examined by an impartiJil, authoritative body, and sanitize the
campus, complacent affidavits of Under Secretaries and glittering
entries from dignitaries on their casual visits, cannot help. '
While the Establishment sought to produce before the Court
extracts from the Visitors' Book to show that many impartial and dis-, H
tinguished persons had complimented the jail authorities on the way
managed the prison, Dr. Chitale placed before us some internal evidence
15-21SCI/80.
570 SUPREME COURT REPORTS [1980] 2 S.C.R.
A from the materials on record, supplemented strongly by personal obser-
vations recorded while he was an internee in this very prison by Sbri
Kuldip Nayar, a responsible journalist with nil apparent motive for
mendacity nor inclination for subjectivity, in bis book "In Jail". There
was nothing in the author's view which money could not buy within
the recesses of the prison campus. Giving a factual narrative, Shri Nayar
B wrote: .... -..
' ...... one could get as much money as one wanted from
outside-again, at a price. The.re was, a money order and mail
service that perhaps was more dependable than what the postal
department c~uld offer.
c For instance, when a prisoner in my ward wanted two
hundred rupees, he sent a note through a warder to his people
in Old Delhi and in less than twenty-four hours he had
the money. He paid sixty-six· rupees as collecting charges-
thirty-three per cent was the prescribed "money order
charge." ...... Dharma Teja, the shipping magnate who
0 served his sentence in Tihar, for instance, had thousands of
rupees delivered to him, we were told. And if one could pay
the jail functionaries one could have all the comforts one
sought. Teja bad all the comforts-he had an air cooler in his
cell a radio-cum-record player set and even the facility of
using the phone. . . . Haridas Mundhra, a businessman who
E
was convicte.d of fraud, was ano~er rich man who spent some
time in tihar. Not only did he have' all the facilities, but be
could also go out of the jail whenever he liked; at times
he would be out for several days and travel even upto
Calcutta. All this of course, cost a lot of money. An even
F richer prisoner was Ram Kishan Dalmia; he spent most of bis
jail terrn in hospital. He was known for his generosity to jail
authorities, and one doctor received a car as a gift.
But more than businessmen it was the smugglers jailed in Tihar
who were lavish spenders. Their food came from Moti Mahal and
their whisky from Connaught Place. They had not only wine but also
G women. "Babuji, not tarts but real society girls," one warder said.
The women would be brought in when "the Sahiblog" went home for
lunch, and their empty offices became "recreation rooms."
Corruption in jail was so well organised and so systematic that
everything went like clockwork once the price had been paid. Jail
H employees at almost all levels were involved, and everyone's share was
fixed. There was never a dispute; there has to be the proverbial
honour among thieves.'
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !.) 5 71
One wonders whether such an indictment made by an established A
-writer had inclined the Government at least to appoint an Inquiry
Commission to acquaint itself with the criminal life-style of correc-
tional institutinns. The higher officials also have their finger in the
pie, if Nayar were veracious:
'Perhaps the way almost everyone had his cut was most B.
evident in our milk supply. It came in bulk to the main
gate (phatak) there, enough milk for the top officials was
taken out of the cans, which were then topped up with water.
And as the cans moved to the wards, all those who handled
them appropriated their share,,again topping np with water.
Even more shocking than the corruption was the
c
ingenious "slave system" we found in the jail. The slaves
were boys between ten and eighteen employed as 'helpers",
and there were scores of them. They cooked, washed uten-
sils, cleaned rooms, fetched water and did much back-
breakinE lab.our to "help" the men who were paid to do D
these chores. They would be woken up before 6 a.m. to
prepare the morning tea and would be allowed to sleep
around 10 p.m. after scrubbing the pots and pans-they
were herded into a ward which had no fan and no proper
sanitary facilities, but was always well lit, with many bulbs
on all night, to enable a sleepy warder to check at a glance
that they were all there.
These boys were undertrial prisoners; many had been
there for eight months and at least one had been there for
two years. They were taken from one court to another to
be tried under one charge or another and kept in jail all the F
while. The aim was to keep them in as long as possible,
for without them the people employed to do the menial
duties would have no time to relax.
One morning I was woken up by the sobbing of a boy,
and fol!nd some other "helpers" trying to console him while
a warder stood by quite unmoved. I went up to him; his G
curly hair reminded me of Raju, my younger son. The
boy had been picked up the previous evening from Defence
Colony in New Debi-, kept in a police lock-up for the night
and brought to jail in the morning.'
The crime of punishment is a new crime which the rule of law H
must reach at ,but what is touchiu~ beyond tears, even if there be but
.a title of truth in the statement "In Jail," is about children being lapped
572 SUPREME COURT REPORTS (1980] 2 s.c.R.
A up and locked up for use as bonded labour in punitive houses of
justice. The nwdus operandi is sensitively set down by Kuldip
Nayar:
. The warder explained that whenever the number of pri-
soners in jail went up, the police were asked to bring in boys
B
to help with the chores. For the past several days, the
warder said, jail anthorities had been pestering the police to
get more helpers as the number of detenus had gone up.
The evening before, when the boy was buying paan (betel-
leaf) from a Defence Colony shop, the police had hauled him
c up as a vagabond; they were responding to the jail autho-
rities' appear to book more helpers.
"This is nothing new, it has always been like this,"
the warder explained. Several undertrial boys later related
to me their tales of woe, how they were arrested on trumped-
D up cbarges and how they were being: held in detention on
one pretext or another.(')
We may, at this stage, go in greater detail into the functional ex-
pansion of habeas corpus writs in the current milieu especially because
counsel on both sides have compellingly contended for an authoritative ·
pronouncement by this court in favour of a broader jurisdiction.
We have earlier noticed that this valuable writ is capable Qf mul-
tiple uses as developed in the American Jurisdiction. Such is the view -
expressed by many legal writers. In Harvard Civil Rights and Civil
Liberties Law Review,(') the view has been expressed that beyond
F the conventional blinkers, courts have been to examine the manner inl
which an inmate is held or treated during the currency of his sentence.
Similar is the thinking expressed by other writers, R. J. Sherpa in
"The Law of Habeas Corpus" (1976) Edn. Juvenal, Satires in 72
Yale Law Journal 506 (1963). In American Juri~prudence there is a
pregnant observation : (•)
G
The writ is not and never has been a static, narrow for-
malistic remedy. Its scope has grown to achieve its pur-
pose-the protection of individuals against erosion of the
right to be free from wrongful restraints on their liberty.
H (!) Kuldip Nayar, "In Jail" pp. 30-34.
(2) 1970 Vol. 5
(3) 2d, Vol. 39, p. 185 para 11.
SUNIL BATRA v. DELm ADMINISTRATION (Krishna Iyer, !.) 573
Corpus JuriJ;, 2d, Vol. 39, page 274, para 7 strikes a similar note, A
away frum the traditional strain. The courts in America have,
through the decisional process, brought the rule of law into the prison
system pushing back, protanto, the hands-off doctrine. In the
leading case of Coffin v. Richard(') the Court of Appeal observed,
<delineating the ambit and uses of the writ of habeas corpus :
B
The Government has the absolute right to hold prisoners
for offences against it but it also haS the correlative duty
to protect them against assault or injury from any quarter
1 while so held. A prisoner is entitled to the writ of habeas
corpus when, though lawfully in custody, he is deprived of
some right to which he is lawfully entitled even in his con- c
finement, the deprivation of which serves to make his im-
prisonment more burdensOJ!J.e than the law allows or
{:llrtails his liberty to a greater extent than the law permits.
When a man possesses a substantial right, the court will
be diligent in finding a way to protect it. The fact that a
D
person is legally in prison does· not prevent the use of habeas
corpus to protect his other inherent rights .... The judge is
not limited to a simple remand or discharge of the prisoner's
civil rights be respected .•....
It is significant that the United State Supreme Court has even con-
sidered as suitable for habeas relief, censorship of prisoners' mail and E
the ban on the use of law students to conduct interviews with prison
inmates in matters of legal relief. In Procunier v. Martinez(') theSe
two questions fell for decision -and the court exercised jurisdiction even
in such an internal matter. In Johnson v. Avery(') a disciplinary
action was challenged by a prisoner through a writ of habeas corpus.
This indicates the extension of the nature of the writ in the American! F
jnrisdiction. Incidentally and interestingly, there is reference to some
States in the United States experimenting with programmes of allowing
senior law stndents to service the penitentiaries. At a later stage,
when we concretise definite directives, we may have occasion to refer
to the use of senior law students for rendering legal aid to prisoners;
G
and so it is worthwhile extracting a passage from ! ohnson v. A very
{supra) with reference to the Kansas Law School Programme in
Prisons at Leavenworth :
The experience at Leavenworth has shown that there
have been very few attacks upon the (prison) administra-
(1) 143 F. 2d 443 at 445. B
(2) 40 L. Ed. 2d. 224.
(3) 21 L. Ed. 2d 718.
574 SUPREME COURT REPORTS [l 980j 2 S.C.R.
A lion; that prospective frivolous litigation has been screened
out and that where the law school felt the prisoner had a
good cause of action relief was granted in a great percen-
tage of cases. A large part of the activity was disposing of
long outstanding detainers lodged against the inmates. In
addition, the programme handles civil matters such as
B domestic relations problems and compensation claims.
Even where there has been no tangible success, the fact that
the inmate had someone on the outside listen to him and
analyse his problems had a most beneficial effect. . We think
that these programmes have been beneficial not only to the
inmates but to the students, the staff and the courts.
c Incidentally, the presence of law students at the elbow of the prisoner
has a preventive effect on ward and warden.
The content of our constitutional liberties being no less, the dyna-
mics of habeas writs there developed help the judicial process here. ,
Indeed, the full potential of Arts. 21, 19, 14, after Maneka Gandhi
D (supra), has been unfolded by this Court in Hoskot and Batra. Today,.
human rights jurisprudence in India has a constitutional status and
sweep, thanks to Art. 21 so that this magna carta may well toll the
knell of human bondage beyond civilised limits.
The supplementary statement of the Superintendent of the Central
Jail (partly quoted earlier) hair-raising when we find that far from
E rehabilitation, intensification of criminality is happening there and the
officials are part of this sub-culture. We, certainly do not wish to
generalise but do mean to highlight the facts of life behind the high ·----y-
walls as demanding constitutional and administrative attention.
Homage to human rights, if it springs from the heart, calls for action.
F Prisons, prison staff and prisoners-all three are in need of reforma-
tion. And this milieu apparently is not unique to Tihar but common
to many penal institutions.
It is refreshing and heartening that the learned Solicitor General'
widened our vista and argued that this court, having been seized of
the problem of prisoners' fundamental freedoms and their traumatic
G abridgement, should give guide-lines in this uncharted area, design •
procedures and device mechanisms which will go into effective action
when the restricted yet real rights of prisoners are overtly or covertly
invaded. The jurisdiction of this court to remedy the violations .of
prisoners' residuary rights was discussed at the bar, as also the package·
of plausible measures which may appropriately be issued to ensure the
functional success of justice when rights are infringed by officials or
fellow-prisoners. Both sides appreciated the gravity of the jail situa-
tion, the sensitivity of security considerations, the virginity of this.
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, .T.) 5 7 5
.....,• field of law and the necessity for normative rules and operative moni- A
toring within the framework of judicial remedies. This constructive
stance of counsel unusual in litigative negativity, facilitated our resolu-
tion of the problems of jail justice, despite the touch of jurisprudential
novelty and call to judicial creativity.
We must formulate the points argued before we proceed to state B
our reasoning and record our conclusions.
1. Has the court jurisdiction to consider prisoners' grievance, not
demanding release but, within the incarceratory circumstances, com-
plaining of ill-treatment and curfai!ment short of illegal detention?
Yes. We have answered it.
2. What are the broad contours of the fundamental rights, espe-
c
cially Arts. 14, 19 and 21 which belong to a detainee sentenced by
Court? Here too, the ground has been covered.
3. What judicial remedies can be granted to prevent and punish
their breach and to provide access to prison justice?
D
4. What practicable prescriptions and proscriptions bearing on
r prison practices can be drawn up by the court consistently with the
_, existing provisions of the Prisons Act and Rules bent to ';hapc to con,
·' form to Part III ?
5. What prisog reform perspectives and strategies shculd be
adopted to strengthen, in the long run, the constitutional mandates and E
human rights imperatives?
The canvas was spread wide by counsel and court and we deal
with the arguments within the larger spread-out of lhe case. Rulings
of this court have highlighted the fact that the framers of our Consti-
tution have freed the powers under Art. 32 from the rigid restraints F
of the traditional English writs. Flexible directives, even affirmative
... r action moulded to grant rehef may realistically be issued and fall
within its fertile width. The jurisdictional dimension is luscently laid
down by Subba Rao, J. in Dwarkanath's case('):
This article is couched in comprehensive phraseology G
and it ex fade confers a wide power on the High Courts to
reach injustice wherever it is found. The Constitution de-
signedly used a wide language in describing the nature of
the power, the purpose for which and the person or authority
against whom it can be exercised. It can issue writs in the
nature of prerogative writs as understood in England; but H
the scope of those writs also is widened by the use of the
(!) Dwarkanath v. l.T.O. (1965] 3 S.C.R. 536 at 540-541.
576 SUPREME COURT REPORTS [1980] 2 S.C.R.
A expression "nature" for the said expression does not equate
the writs that can be issued in India with those in England,
but only draws an analogy from them. That apart, High
Courts can also issue directions, orders or writs other than
the prerogative writs. It enables the High Courts to mould
the reliefs to meet the peculiar and complicated require-
ments of this country. Any attempt to equate the scope of
the power of the High Court under Art. 226 of the Consti-
tution with that of the English Courts to issue prerogative
writs is to introduce the unne~essary procedural restrictions
grown over the years in a comparatively small country like
England with a unitary form of govermnent into a vast
c country like India functioning under a federal structure.
Such a construction defeats the purpose of the article itself.
Where injustice, verging on inhumanity, emerges from hacking
human rights guaranteed in Part III and the victim beseeches the
·Court to intervene and relieve, this court will be a funi:tional futility
D as a constitutional instrumentality if its guns do not go into action
until the wrong is righted. The court is not a distant abstraction
omnipotent in the books but an activist institution which is the cyno-
·sure of public hope. We bold that the court can issue writs to meet
the new challenges. Lord Scarman's similar admonition, in bis
.E .English Law-The New Dimensions, is an encouraging omen. The
objection, if any, is absolute because in a prison situation, a Constitu-
tion Bench of this Court (Batra and Sobraj) did itnpiison the powers
of prison officials to put an under-trial under iron fetters or confine
in solitary cells convicts with deatbsentences under appeal.
Once jurisdiction is granted-and we affirm in umnistakable terms
F that the court has, under Art. 32 and so too under Art. 226, a clear
power and, therefore, a public duty to give relief to sentencees in prison
settings--the next question is the jurisprudential backing for the play
of that jurisdiction. Here again, Batra(1) has blazed the trial, and if
binds.
Are prisoners persons? Yes, of course. To answer in the nega-
G
tive is to convict the nation and the Constitution of dehumanization ..I(.
and to repudiate the world legal order, which now recognises rights
of pdsoners in the International Covenant of Prisoners' Rights to
which our country bas signed assent. In Batra's case, this Conrt bas
rejected the bands-off doctrine and it bas been ruled that fundamental
H iights do not flee the person as he enters the pdson although they may
suffer shrinkage necessitated by incatceration. Our constitutional
(l) Swril Batra v. Delhi Admn. [1979] l S.C.R. 494.
SUNIL BATRA v. DELID ADMINISTRATION (Krishna Iyer, 1.) 577
~
• -culture has now crystallised in favour of prison justice and judicial A
.~urisdiction. (')
The jurisdictional reach and range of this court's writ to
hold prison caprice and cruelty in constitutional leash is in-
contentable, but teasing intrusion into administrative discre-
tion is legal anathema absent breaches of constitutional B
rights or prescribed procedures.
The U.S. Supreme Court, in like situations, has spoken firmly and
'humanistically, and these observations have the tacit approval of our
<Court in Batra's case. Justice Douglas put it thus.(2 ).
Prisoners are still 'persons' entitled to all constitutional
rights unless their liberty has been constitutionally curtailed c
by procedures that satisfy all the requirements of due pro-
cess,
J11stice Marshall strongly seconded the view :
I have previously stated my view that a prisoner does
not shed his basic constitutional rights at the prison gate, D
and I fully support the court's holding that the interest of
r inmates in freedom from imposition of serious discipline is
a 'liberty' entitled to due process protection.
We, therefore, affirm that wh_!!re the rights of a prisoner, either
<,
under the Constitution or under other law, are violated the writ power E
of the court can and should run to his rescue. There is a warrant
for this vigil. The court process casts the convict into the prison
system and the deprivation of his freedom is not a blind penitentiary
afiliction but a belighted institntionalisation geared to a social good.
The court has' a contitnning responsibility to ensure that the consti·
tutional purpose of the deprivation is not defeated by the prison F
administration. In a few cases, this validation of judicial invigilation
.. of prisoners' condition has been voiced by this court and finally rein-
forced by the Constitution Bench in Batra (supra)(')
The Court need not adopt a "hands oil" attitude ....
in regard to the problem of prison administration. It is G
all the more so because a convict is in prison under the
order and direction of the court."
Under the caption "Retention of Authority over Prisoner by
Sentencing Judge" Krantz notes:(')
(1) Sumi Batra v. Delhi Admn. [1979) 1 S.CR. 392 at 409-410.
(2) Ibid p, 412. H
(3) Ibid p, 496.
(4) Sheldon Krantz, Corrections and Prisoners' Rights at 274-75.
578 SUPREME COURT REPORTS [1980} 2 S.C.R_
A As noted by Judge Lay in a Judicial Mandate, Trial
Magazine (Nov-Dec. 1971) at p. 15:
It should be the responsibility of the court in imposing
the sentence to set forth as it would in any equitable decree,.
the end to be achieved and the specifics necessary to achieve
B that purpose. If then, we are to have accountability in the
execution of the sentence, courts must make clear what is
intended in the imposition of the sentence. Every sentence·
should be couched in terms similar to a mandatory injunc- /-
~·
tion. In this manner, the penology system is to be held tCJo
account if tge government does not faithfully execute the
c order.
In other words, the sentencing court should be required
to retain jurisdiction to ensure that the prison system res-
ponds to the purposes of the sentence. If it does uot, the
sentencing court could arguably have the authority to
D d·~mand compliance with the sentence or even order the pri-
soner released for non-compliance.
Whether inside prison or outside, a person shall not be deprived of
his guaranteed freedom save by methods 'right, just and fair'. Bhag-
wati J. in Maneka Gandhi observed.(')
The principle of reasonableness, which legally as well
as philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 like a brooding omnipre-
sence and the procedure contemplated by Article 21 must
answer the test of reasonableness in order to be in confor-
mity with Art. 14. It must be "right and just and fair" and
F not arbitrary, fanciful or operessive; otherwise it would be
no procedure at all and the requirement of Article 21 would
not be satisfied.
Hoskot(') applied the rule in Maneka Gandhi (supra) to a prison
setting and held that "one component of fair procedure is natural·
G justice". Thus it is now clear law that a prisoner wears the armour
of basic freedom even behind bars and that on breach thereof by
lawless officials the law will respond to his distress signals through
'writ' aid. The Indian human has a constant companion-·the court
armed with the Constitution. The weapon is 'habeas', the power is.
Part III and the projectile is Batra,( 3 )
H (l) Maneka Gandhi v. l nion of India [1979] l S.C.C. 248 at 284.
(2) M. 0. Hoskot v. Maharashtra, [1979] l S.C.R. 197. at 203.
(3) Sunil Batra (supra) at 495.
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J.) 579
~ No iron curtain can be drawn between the prisoner and the Con- A
' stitution.
It is, therefore, the court's concern, implicit in the power to deprive
the sentences of his personal liberty, to ensure that no more and no
less than is warranted by the sentence happens. If the prisoner
breaks down because of mental torture, psychic pressure or physical
infiic:ion beyond the licit limits C1f lawful imprisonment the Prison
Administration shall be liable for the excess. On the contrary, if an
influential convict is able to buy advantages and liberties to avoid or
water down t]J.~ deprivation implied in the sentence the Prison Estab-
lishment will be called to order for such adulteration or dilution of
court sentences by executive pa\liation, if unwarranted by law. One c
o~ us, in Batra observed :
Suffice it to say that, so long as judges are invigilators
and enforcers of constitutionality and performance auditors
of legality, and convicts serve terms in that grim microcosm
called prison by the mandate of the courts, a continuing
institutional responsibility vests in the system to monitor
in the incarceratory process and prevent security 'excesses'
J ai!ors are bound by the rule of law and cannot inflict sup-
> plementary sentence under disguises or defeat the primary
purposes of imprisonment.
E
The upshot of this discussion is but this. The Court has power
and responsibility to intervene and protect the prisoner against may-
hem, crude or subtle, and may use habeas corpus for enforcing in-
prison humanism and forbiddance of harsher restraints and heavier
severities than the sentence carries. We hold these propositions to be
self-evident in our constitutional order and is supported by authority,
if need be. Therefore, we issue the writ to the Lt. Governor and the
...' Superintendent of the Central Jail that the prisoner, Prem Chand,
shall not be subjected to physical manhandling by any jail official,
that the shameful and painful torture to which he has been subjected-
,.
• a blot on Government's claim to protect human rights-·shall be ended
and the wound on his person given proper medical care and treatment.
The Central Government will, we are sure, direct its Jail staff not
G
show too pachydermic a disposition for a democratic government.
For example, specific guidelines before punishing a prisoner had been
given in Batra's case and yet the prisoner Prem Chand has been
lodged in the punishment cell, which is almost the same as a solitary H
cell, with cavalier disregard for procedural safeguards. Merely to
plead that many prisoners are 'habituals' is no ground for habitual
580 SUPREME COURT REPORTS [1980] 2 s.c.R.
A violation of law by officials. We direct that Prem Chand be released r,
from the punishment cell and shall not be subjected to such severity
until fair procedure is complied with.
The chronic callousness of the Prison System to· the humane
demands of the Constitution, despite the fact that many ministers over
B many decades in many States have known the unbroken tradition of
prison sub-culture and despite prison diaries of national figures from
Jawabarlal Nehru to Jay Prakash Narain, bas made court and counsel
benignly turn the judicial focus on the future so that further mischief
may not be suffered in incarceration. There is little doubt that bar-
barities like bar betters and band-cuffs were recklessly being practised
either on account of ignorant unconscionableness or wilful viciousness
in several detention camps. Many of the victims are poor, mute,
illiterate, desperate and destitute an~ too distant from the law to be
aware of their rights or ask for access to justice, especially when the
nmriing tension of the· prison and the grisely potential for zoological
reprisals stare them in the face. So it is for the court to harken when
humanity calls, without waiting for particular petitions. Like class
actions, class remedies have pro bona value.
The court-the .learned Solicitor General underscored this cons-
tructive approach-must not wait for a stray petition from some
weeping inmate and give the little person a little relief in the little
E case but give the nation, its governments, prison establishments and
r
correctional departments, needed guidance and also fill with hope the
hearts of those who cherish human rights that the courts are, after all,
sentinels on the qui vive. Law is what law does and court, if any-
thing, are constitutional in action. Dr. Chitale, naturally, joined this
moving demand. We do think that there are many, drawn from the
F
class of penury, who suffer more privations than their sentences justify.
Ralph Ellison's picture of the American Black bas relevance for the y
prisoner here:'
·•
I am an invisible man .... I am a man of substance, of
fiesb and bone, fibre an liquids-and I might even be said
G to possess a mind. I am invisible, understand, simply
because people refuse to see me .... When they approach
me they see only my surroundings, themselves, or figmenu
of thek imagination-indeed, everything and anything
except me.
H The invisibility to which I refer occurs because of a
peculiar disposition of the eyes of those with whom I come
in contact. A matter of construction of their inner eyes,
'
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer,!.) 581
those eyes with which they look through their physical eyes
upon reality .... You wonder whether you are not simply a
phantom in other people's minds .... You ache with the
need to convince yourself that you do exist in the real world,
that you're a part of all the sound and anguish, and you
strike out with your fists, you curse and you swear to make
them recognise you. And, alas, it is seldom snccessful.
B.
In a c•Jlture of Antyodaya, the court must rescue the weakest by
pre-emptive guidance without driving parties to post facto litigation.
In law as in medicine, prevention is better than cure, a rule jurispru-
dents have not sufficiently developed, and so we accede to the request
of counsel and proceed to discuss the normative side of prison justice. C
Before we begin this chapter we might as well set down what the
learned Solicitor General stressed viz. that the detailed guidelines set
out in the separate opinion in Batra's case (page 488 to 493) are the
same as are implicit in the judgment of Desai J. speaking for the other
Judges and this position should be re-emphasised by this court here I»
so as to avoid misconception. Desai J. has stated
Justice Krishna Iyer has delivered an elaborate judgment
which deals with important issues raised before us at great
> length and with great care and concern. We have given a
separate opinion, not because we differ with him on funda-
mentals, but because we thought it necessary to express our
views on certain aspects of the questions canvassed before
us.
Likewise, in the separate 'judgment, a similar statement is made :
I am aware that a splendid condensation of the answers
to the core questions has been presented by my learned F
brother Desai, J and I endorse the conclnsion.
A close perusal shows that both the judgments in Batra's case lay
down the same rule and the elaborate guidelines in the first opinion are
a necessary proliferation of the law expounded in the second judgment
in the case. We hold, agreeing with both counsel, that the detailed
·- prescriptions. in the separate opinion in Sunil Batra (p. 488 to 493)
is correct law and binds the penal institutions in the country. We
G
agree with these guidelines and express ourselves to that effect since
the core question raised in the present case and the cardinal principles
we have accepted lead to the same conclnsions.
At the outset, we notice the widespread prevalence of legal illi-
teracy even among lawyers about the rights of prisoners. Ac<:ess to
law postulates awareness of law and activist awareness of legal rights
582 SUPREME COJTRT REPORTS [1980j 2 S.C.R.
in the condition for seeking court justice. So the first need in the
juristic twilight is for the State to produce and update a handbook on
Prison Justice, lucid, legible for the lay, accurate, comprehensive and,
above all, practical in meeting the felt necessities and daily problems
of prison life. The Indian Bar has, as part of its judicare tryst as a
special responsibility to assist the State in this behalf. A useful hand-
book prepared by the American Civil Liberties Union was handed upto
us by Dr. Chitale titled "The Rights of Prisoners". Law in the books
and in the courts is of no help unless it reaches the prisoner in under-
standable language and available form. We, therefore, draw the
·->tention of the State to the need to get ready Prisoner's Handbook
in the regional language and make them freely available to the in-
mates. To know the law is the first step to be free from fear of
unlaw.
Prisoners are peculiarly and doubly handicapped. For one thing,
most prisoners belong to the weaker segment, in poverty, literacy,
social station and the like. Secondly, the prison house is a walled-off
world which is incommunicado for the human world, with the result
that the bonded inmates are invisible, their voices inaudible, their
injustices unheeded. So it is imperative, as implicit in Art. 21 that life
or lib~rty shall not be kept in suspended animation or congealed into
animal existence without the freshing flow of air, procedure. The
meaning of 'life' given by Field J., approved in Kharak Singh' and
Maneka Gandhi' bears exception:
Something more than mere animal existence. The in-
hibition against its deprivation extended to all those limbs
and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body by the amputation of \,-·
F an arm or leg, or the putting out of an eye, or the destruc-
tion of any other organ of the body through which the soul
communicates with the outer world.'
Therefore, inside prisons are persons and their personhood, if
..
;
crippled by law-keepers turning law-breakers, shall be forbidden by
the Writ of this Court from such wrong doing. Fair procedure, in
dealing with prisoners, therefore, calls for another dimensions of access
to law-provision, within easy reach, of the law which limits liberty
to persons who are prevented from moving out of prison gates.
A handbook meets the logistics of the law in field. Of course,
the prison staff also suffer from the pathology of misinformation or
non-education about rights and limitations and this ignoratia juris
I. Kharak Singh v. The State a/ U.P. [196411 SCR 332 at 357.
2, Maneka Gandhi v. Unian of Indio [1978] I SCR 248.
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J.) 583
.situation leads to insensitivity to human rights and a test in the hand- . A
book of prison law must be a minimum for recruitment. The peril to
prison rights is from the uninstructed personnel, apart from the anti-
cultural ethos which permeates. It behoves Government to insist on
the professional requirement, for warders and wardens, of a hearty
.familiarity with the basics of Prison Law.
B
,~ Rights jurisprudence is important but becomes an abstraction in
-< the absence of remedial jurisprudence. Law is not an omnipotence in
!' the sky but a loaded gun which, when triggered by trained men with
---- ballistic skill, strikes the offending bull's eye. We have made it clear
--1 that no prisoner can be personally subjected to deprivations not neces-
sitated by the fact of incarceration and the sentence of court. All c
other freedoms belong to him to read and write, to exercise and re-
,creation, to meditation and chant, to creative comforts like protection
from extreme cold and heat, to freedom from indignities like compul-
sory nudity, forced sodomy and other unbearable vulgarity, to move-
.men! within the prison campus subject to requirements af discipline and
security, to the minimal joys of self-expression, to acqi;ire skills and D
techniques and all other fundamental rights tailored to the limitations
·of imprisonment.
Chandrachud J, long ago, spelt out the position and we affirm
it:(')
E
"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, follow-
ing 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 F
or the right to 'practise' a profession. A man of profession
would thus stand stripped of his right to hold consultations
while serving out his sentence. But the Constitution gua-
rantees other freedoms like the right tp acquire, hold r.nd
dispose of property for the exercise of which incarceration
can be no impediment. Likewise, even a convict is entitled G
to the precious right guaranteed by Article 21 of the Consti-
tution that he shall not be deprived of his life or personal
liberty except according to procedure established by law."
We think it proper to suggest that in our country of past coloniai
-subjection and consequent trepidation in life, publicity officially is H
(I) D. Bhuvan Mohan Patnaik & Ors. v. State of A. P. & ors. [19751
2 S.C.R. 24 at 26.
. 584 SUPREME COURT REPORTS [1980j 2 S.C.R.
nfecesslaary for rti~ghtsbto bde ad~pr eci~ted heve~ghby thedbeneficianb.eils:t!herC: 'I',
A
1
ore, rge no cc oar s 1sp aymg t e n ts an resporm 1 1es O• ·
prisoners may be hung up in prominent places within the prison fil
the language of the people. We are dealing with the mechanics of.
bringing the Jaw within the wakeful ken of the affected persons.
Sec. 61 of the Prisons Act, simplied imaginatively leads to the·
B
same result. That section reads:
"Copies of rules, under sections 59 and 60 so far as they
affect the government of prisons, shall be exhibited, both in
English and in the Vernacular, in some place to which all ;-
persons employed within a prison have access."
c We think it right to hold that copies of the Prison Manual shall he-
kept within ready reach of prisoners. Darkness never does anyone any
good and light never any harm.
Perhaps, the most important right of a prisoner is to the integrity
of his physical person and mental personality. This Court in Batra'S·
D case has referred to the international wave of torture of prisoners
found in an article entitled 'Minds Behind Bars'. That heightens our·
anxiety to solve the issue of prisoners' protection.
The problem of law, when it is called upon to defend peilions
hidden by the law, is to evolve a positive culture and higher conscious~
E ness and preventive mechanisms, sensitized strategies and .hnmanist r
agencies which will bring healing balm to bleeding hearts. Jndeed,
counsel on both sides carefully endeavoured to help the Court to
evolve remedial processes and personnel within the framework of the
Prisons Act and the parameters of the Constitution. ·
F Inflictions Il)l\y take many protean forms, apart from· physica!
assaults. Pushing the prisoner into a solitary cell, denial of a neces-
sary amenity, and, more dreadful sometimes, .transfer to a distant pri-
son where visits or society of friends or relations may be snapped,
allotment of degrading labour, assigning him to a desperate or tough·
gang and the like, may be P.unitive ineffect. Every such affliction or
G abridgment is an infraction of liberty or life in its wider sense and
cannot be sustained unless Art. 21 is satisfied. There must be a
corrective legal procedure, fair and reasonable and effective. Such·
infraction will be arbitrary, under Article 14, if it is dependent on
unguided discretion, unreasonable, under Art. 19 if it is irremediable'
and unappealable and unfair, under Art. 21 if it violates natural justice.
H The string of guidelines in Batra set out in the first judgment, which
we adopt, provides for a hearing at some stages, a review by a supe-
rior, and early judicial consideration so that the proceedings may not
SUNIL BATRA v. DEL!Il ADMIN!STllATION (Krishna Iyer, J.) 58 5
,.... hop from Caesar to Caesar. We direct strict compliance with those A
norms and institutional provisions for that purpose.
Likewise, .no personal harm, whether by way of punishment or
otherwise, shall be suffered by a prisoner without affording a preven·
tive, or in special cases, post facto remedy before a inpartial, com·
petent, available agency. B
>' . The Court is always ready to correct injustice but it is no practical
. proposition to. drive every victim to move the court for a writ, know-
--- ,._ ing the actual hurdles and the prison realities. True, technicalities
and legal niceties are no impediment to the court entertaining even an
informal communication as a proceeding for habeas corpus if the basic c
facts are found; still, the awe and distance of courts, the legalese and
mystique, keep the institution unapproachable. More realistic is to
devise a method of taking the healing law to the injured victim. That
system is best where the remedy will rush to the injury on the sligh·
test summons. So, within the existing, dated legislation, new mean·
ings must be read. Of course, new legislation is the best solution, but D
when lawmakers take for too long for social patience to suffer, as in
r this very case of prison reform, courts have to make-do with interpre-
tation and carve on wood and sculpt on stone ready at hand and not
wait for far away marble architecture. Counsel rivetted their atten-
tion on this pragmatic engineering and jointly helped the court, to
constitutionalise the Prisons Act prescriptions. By this legal energe- E
tics they desired the court to read into vintage provisions legal
remedies.
Primarily, the prison nuthority has the duty .to given effect to the
court sentence. (See for e.g. SS. 15 and 16 of the Prisoners Act,
1900). To give effect to t_he sentence means that it is illegal to F
exceed it and so it follows that a prison official who goes beyond more
imprisonment or deprivation of locomotion and assaults or otherwise
compels the doing of things not covered by the sentence acts in viola-
tion of Art. 19. Punishments of rigorous imprisonment oblige the
inmates to do hard labour, not, harsh la boor and. so a vindictive officer
G
victimisin.g a prisoner by forcing on him particularly harsh and degrad"
').
ing jobs, violates the law's mandate. For example, a prisoner, if
forced to carry night soil, may seek a habeas writ. 'Hard labour' in
s. 53 has to receive a humane meaning. A girl student or a male
weakling sentenced to rigorous imprisonment may not be forced to
break stones for nine hours a day. The prisoner cannot demand soft H
jobs but may reasonably be assigned congenial jobs. Sense and sym-
pathy are not enemies of penal asylllll\S ..
J_G-21 SCI/80
586 SUPREME COURT REPORTS [1980] 2 S.C.R.
A Section 27(2) and (3) of the Prison.s Act states:
27. The requisitings of this Act with respectto the •sepa-
rations of prisoners are as follows:
(1) xx xx
B· (2) \n a prison where male prisoners under the age of
twenty-one are confined, means .shall he provided for
separating thein altogether from the other prisoners
and for separating those of them who have arrived at
the age of puberty from those who have not.
c ( 3) unconvicted criminal prisoners shall be kept apart
from convicted criminal prisoners; and
i
. The materials we have referred to earlier indicate slurring over
!his rule anci its violation must be visited with judicial correction and
punishment of the jail staff. Sex excesses and exploitative labour are
D. the vices adolescents are subjected to by adults'. The young inmates
must be separated and freed from exploitation by adults. If Kuldip
Nayar is right this rule .is in cold storage. It is inhuman and un-
reasonable to throw.young boys to the.sex-starved adult pr<soners or to
run menial jobs for the affluent or ·tough prisoners. Art. 19 then
intervenes and shields.
E.
Section 29 and connected rules relating to solitary confinement
have been covered by· Batra's case. But Prem Chand, in this very
case, has been sent to a 'solitary' or 'punishment' cell without 11eeding
the rulq in Batra's Cll\e regarding impost of punitive S?)itary confine-
me.nt. ·We cannot agree ihat the cell. is not 'solitary' and wonde.r what
F sadistic delight is derived by the .warders .and wardens by such cruelty.
Any harsh is.olation from society by long, lonely, cellular detention is
penal and so must be infiicted only consistent)y with fair procedure..
The learned Solicitor General mentioned that some prisoners, for their
own safety, may desire segregation. In such cases, written consent
and immediate report to higher authority are the least, if abuse is to
G be tabooed.
Visit to prisoners by famJy and friends are a solace in insulation;
and only a delmmimised system can derive vicarious delight in depriv-
ing prison inmates of this humane amenity. Subject, of course, to
search and discipline and other security criteria, the right to society of
n ' fellow-men, parents and other family members cannot be denied in the
light of Art. 19 and its sweep. Moreover, the whole habi!itative put~
pose of sentencing is to soften, not to harden, and this will be promo-
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J.) 587
ted by more such meetings. A sullen, forlorn prisoner is a dangerous A
• criminal in the making and the prison is the factory! Sheldon l\rantz
rightly remarks:(')
In 1973, the National Advisory Commission argued that
prisoners should have a "right" to visitation. Task Force
Report, Corrections (1973) at 66. It also argued that B
correctional officials should not merely tolerate visiting but
should encourage it, particularly by families. Although the
-...
,
Commission recognised that regulations were necessary to
conteud with space problems and with security concerns, it
proposed that priority be given to making visiting areas
pleasant and unobstrusivc. It also urged that corrections c
officials should not eavesdrop on conversations or otherwise
interfere with the participants' privacy. Thu<, although
there may be current limitations on the possible use of the
Constitution on visitation by family and friends, public
policy should dictate substantial improvements in this area, D
in any event.
r We sec no reason why the right to be visited under reasonable
res:rictions, should not claim current constitutional status. We hold,
subject to considerations of security and discipline, that liberal visits
by family members, close friends and legitimate callers, are part of the
E
prisoners' kit of rights and shall be respected.
Parole, again, is a subject which is as yet unsatisfactory and arbi-
trary but we are not called upon to explore that consf1tutional area
and defer it. Likewise, to fetter prisoners in iron is an inhumanity
unjustified save where safe custody is otherwise impossible. The
F
routine resort to handculis and irons bespeaks a barbarity hostile to
oor goal of human dignity and social justice. And yet this unconsfi-
IUtionality is heartlessly popular in many penitentiaries so much so a
penitent law must proscribe its use in any but the gravest situation.
These rights and safeguards need a machinery. The far internal
invigilation and independent oversight cannot be overemphasised. G
Prisoners' rights and prison wrongs are a challenge to re!lledial crea-
tivity.
Krantz, in his book, (supra) notes:
To respond to the need for effective grievance proce-
H
dures wil! probably require both the ceation of internal pro-
(l) Sheldon Krantz, Corrections anu'..Prisoners' Rights pp. 129-130.
17-21 SCl/80
588 SUPREME COUI<T REPORTS (1980] 2 S.C.R.
A grams (formal complaint procedures) and programs involv-
ing "outsiders" (Ombudsmen, citizens investigative com- •
mittees, mediators, etc).
So, apart from judicial review for prisoners' rights and conditions
of confinement, we have to fabricate instant administrative grievance
B procedures.
Indeed, a new chapter of offences carrying severe punishments
when prison officials become delinquents is an urgent item on the - -~
agenda of prison reform; and lodging of complaints of snch offences --~
together with investigation and trial by independent agencies most also >--
find a place in such a scheme. We are dealing with a morbid world
c where sun and light arc banished and crime has neurotic dimensions.
Special situations need special solutions.
We reach the most critical phase of counsel's submissions viz., the
legal fabrication and engineering of a remedial machinery within the
fearless reach of the weakest of victims and worked with indepen-
D
dence, accessibility and power to review and punish. Prison power,
absent judicial watch tower, may tend towards torture.
The Prisons Act and Rules need revision if a constitutionally and
culturally co,ngruous code is to be fa,hioned. The model jail manual,
we are unhappy to say and wncur in this view with the learned Soli-
E citor General, is far from a model and is, perhaps, a product of prison
officials insufficiently instructed in the imperatives of the Constitution
and unawakened to the new hues of human rights. We accept, for
the nonce, the suggestion of the Solicitor General that within the-
existing stii\utory framework the requirements of constitutionalism.
may be read. He heavily relies on the need for a judicial agency
F whose presence, direct or by delegate, within the prison walls will
deal with grievances_ For this purpose, he relies on the Board of.
Viilitors, their powers and duties, as a functional substitute for a Prison.
Ombudsman. A controllerate is the desideratum for in situ reception
and redressal of grievances.
G After all, the daily happenings, when they hurt harshly, have to be •
arrested forthwith, especially when it is the prison guards and the,
head warders who brush with the prison inmates. Their behaviour'
often causes friclion and fear but when their doings are impeached,
the institutional defence mechanism tends to protect them from top t<>
bottom. So much so, injustice escapes punishment.
1-1
In this context it is apt to quote David Rudovsky: (')
(I) The Rights of Prisoners, p. 23.
SUNJL BATRA v. DELIU ADMINISTRATION (Krishna Iyer, J.) 589
.... The present system puts absolute discretion and day-to- A
" day power over every aspect of a prisoner's life in their
hands. It is this part of prison life which causes the deepest
resentment among prisoners for, to a large extent, the
manner in which an inmate is treated by the guards deter-
mines the severity of conditions he will have to endure. It
is a double irony that the lower the level of authority in B
prison (from warden on down to guard) the greater tho
discretion that is vested in the prison official and the less
willing the courts are to review their decisions. Thus, whe-
ther it be a request for medical treatment, the right to go to
the yard 01 prison library, or the potentially more serious C.
matter of prison discipline and punishment, the guard of
the block holds ultimate power over the prisoner. Com-
plet~ discretion in the context of prison Mc where no
remedies exist to correct it, can be catastrophic, Judge
Sobeloff has put it bluntly:
D
In fact, prison guards may be more vulnerable to the
corrupting influence of unchecked authority than most
people. It is well known that prisons are operated pn
minimum budgets and that poor salaries and working con-
ditions make it difficult to attract high-calibre personnel.
Moreover, the "training" of the officers in dealing with E
obstreperous prisoners is but a euphemism in most states.
George A. Ellis quotes a prisoner's letter : (')
You Cllnnot rehabilitate a man through brutality and
disrespect. .. If you treat a man like an animal, then you
must expect him to act like one. For every action, there is F
a reaction ... And in order for an inmate, to act like a
human being you must trust him as such ..... You can't spit
• in his face and expect him to smile and say ihank you.
The institution and composition of the Board of Visitors comes in
• handy and has statutory sanction. The visitatiorial power is wide. G
the panel of visitors includes judicial officers and such a situation ran
be pressed into service legally to fulfil the constitutional needs; Para
47 read with para 53-A sets out the structure of the Board Para 47(b);
to (d) includes District & Sessions Judges, District Magistrates and
Sub-Divisional Magistrates among the members. The functions of
H
visitors are enumerated in para 53, and 53-B and they include (a)
(I) Ro!l<r G. Lampheas Freedom from Crime pp. 28-29.
590 SUPREME CO"l:RT REPORTS [1980] 2 S.C.R.
A inspect the barracks, cells, wards workshed and other buildings of the
jail generally and the cooked food; (b) ascertain whether consi-
derations of health, cleanliness, and security are. attended to, whether
proper management and discipline are maintained in every respect,
and whether any prisoner is illegally detained, or is detained for an
undue length of time, while awaiting trial; ( c) examine jail registers
B and records; (d) bear, attend to all representations and petitions
made, by or on behalf of prisoners; and (e) direct, if deemed advis-
able, that any such representation or petitions be forwarded to Gov-
ernment. In the sensitive area of prison justice, the judicial memben
havo special responsibilities and they must act as wholly independent
overseers and not as ceremonial panelists. The judges are guardians
c of prisoners' rights because they have a duty to secure the execution
of the sentences without excesses and to sustain the personal liber-
ties of iprisoners without violence on or violation of the inmates'
personality. Moreover, when a wrong is done inside jail the judicial
visitor is virtually a peripatetic tribunal and sentinel, at once intra-
D mural and extra-mural,-observer, receiver and adjudicator of griev-
ance~.
What then. are prisoner Prem Chands' rights, in the >pecific set-
ting of this .case, where the complaint is that a j<ril warder, for perni-
cious purposes, inflicted physical torture ?
E The Punjab Prison Manual clearly lays down the duties of District
Magistrates with reference to Central Jails. Para 41 ( 1) •and (3) read
tbus :
41. (1) It shall be the duty of the Magistrate of the
district from time to time to visit and inspect jails situate
F within the limits of his district and to satisfy himself that the
provisions of the Prisons .Act, 1894, and of all rules, regu-
lations, directions and orders made or issued thereunder
applicable to such jail, are duly observed and enforced.
xx xx xx
G ( 3) A record of the result of each visit and mspection
made, shall be entered in a register to be maintained by the
Superintendent for the purpose.
Para 42 is also relevant :
42. In the absence of the Magistrate of the district from
H headquarters, or in the event of that officer being at any time
unable from any cause to visit the jail in the manner in these
rules prescribed in that beh:ill', he shall depute a Magistrate
SUNIL BATRA V· DELHI ADMINISTRATION (Krishna Iyer, !.) 591
subordinate to him who is available for the duty, to visit and A
• inspect the jail on his behalf. Any officer so deputed may,
Sltbject to the control of the Magistrate of the district, exer-
cise all or any of the powers by the Prisons Act, 1894, or.
these rules, conferred upon the Magistrate of the district.
Parawaph 44 clothes the District Magistrate with powers and makes B
his orders liable to be obeyed.
,, . 44. (I) The orders passed under sub-section (2) of
section I of the Prisons Act, 1894, should, except in emer-
gent cases in which immediate action is, in the opinion of
such Magistrate necessmy, be so expressed that the Superin-
tendent may have time to refer (if he thinks necessary) to
c
the Inspector-General before taking action thereon.
( 2) All orders issued by the Magistrate of the district
shall, if expressed in terms requiring immediate compliance,
be forthwith obeyed and a report made, as prescribed in the
said sub-section, to the Inspector-GcneraL D
We understand these provisions to cover the ground of reception
' of grievance from prisoners and issuance of orders thereon after
prompt enquiry. The District Magistrate must remember that in this
capacity he is a, judicial officer and not an executive head and must
function as such independently of the prison executive. To make E
prisoners' rights in correctional institutions viable, we direct the Dis-
trict Magistrate concerned to inspect the jails in his district once every
week receive complaints from individual prisoners and enquire into
-------
' them immediately. If he is too preoccupied with urgent work, para-
graph 42 enables him to depute a magistrate subordinate to him to
visit and inspect the jail. What is important is that he should meet F
the prisoners separately if they have grievances. The presence of
' warders or officials will be inhibitive and must be avoided. He must
' ensure that his enquiry is confidential although subject to natural
justice and does not lead to reprisals by jail officials. The rule speaks
of the record of the result of ~ach visit and inspection. This empowers
G
him to enquire and pass orders. All orders issued by.him shall be imme-
). diately complied with since obedience is obligated by para 44 (2). Jn
' the event of non-compliance he should immediately inform Govern-
ment about such disobedience and advise the prisoner to forward his
complaint to the High Court under Art. 226 together with a copy of
his own report to help the High Court exercise its habeas corpus H
power. Indeed, it will be practical, as suggested by the learned Soli-
citor General, if the District Magistrate keeps a grievance box in each
592 'iUPREME COUl;.T REPORTS [1980j 2 S.C.R.
A ward to which free access shall be afforded to every inmate. It should
be kept locked and sealed by him and on his periodical visit, he alon~,
or his surrogate, should open the box, find out the grievances, fovesti-
gate ·their merits and take remedial action, if justified.
Chapter V of the Manual deals with visitors who arc an important
B component of jail management. Para 4 7 sp~cially mentions District
& Sessions Judges, District Magistrates, Sub-Divisional Magistrates and
Superintendents of Police as members of the Board of Visitors. In
fact, Sessions Judges are required to visit the jails periodioally-the . "'(
District Magistrates and Sub Divisional Magistrates and magistrates }-
subordinate to them and others appointed by them in this behalf are
c to visit jails in their jurisdiction once a week under the existing rule.
We direct, in implementation of the constitutional obligation we have
already discussed at length to safeguard prisoners' fundamental rights,
that the Sessions Judges and District Magistrates or. other subordinates
nominated by them shall visit jails once a week in their visitorial func-
tions.
D
Para 49 has strategic significance and may be reproduced :
'
49. ( 1) Any official visitor may examine all or any of
the books, papers and records of any department of, and .. -
may interview any prisoner confined in the jail,
E
(2) It shall be the duty of every official visitor to satisfy
himself that the provisions of the Prisons Act, 1894, and of
the rules, regulations, orders and directions made or issued
thereunder, are duly observed, and to hear and bring to
notice any complaint or representation made to him by any
F prisoner.
We understand this provision to mean that the Sessions Judge,
District Magistrate or their nominees shall hear complaints, examine
all documents, take evidence, interview prisoners and check to see if
there is deviance, disobedience, delinquency or the like which infringes
G upon the rights of prisoners. They have a duty "to hear and bring
\
to notice any complaint or representation made to him by any priso-
ner". Nothing clearer is needed to empcwer these judicial officers to .(
investigate and adjudicate upon grievances. We direct the Sessions
Judges concerned, under his lock and seal, to keep a requisite number
of grievance boxes in the prison and give necessary directions to the
H Superintendent to see that free access is afforded to put in complaints:
of encroachments, injuries or torture by any prisoner, where he needs ~I
remedial action. Such boxes shall 'not be tampered with by any one
•
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J.) 593
and shall be opened only under the authority of the Sessions Judge. A
We need hardly emphasise the utmost vigilance and authority that the
Seosions Judge must sensitively exercise in this situation since prisoner's
personal liberty depends, in this undetectable campus upon his aware-
ness, activism, adjudication aud enforcement. Constitutional rights
shall not be emasculated by the insouciance of judicial officers.
The prison authorities shall not, ii). any manner, obstruct or non- •
!" . cooperate with reception or enquiry into the complaints. Otherwise,
prompt punitive action must follow the High Court or the Supreme
··-court must be apprised of the grievance so that habeas corpus may
• j
issue after due hearing. Para 53 is important in this context and we
reproduce it below : c
53. All visitors shall be afforded every facility for observ-
ing the state of the jail, arid the management thereof, and
shall be allowed access under proper regulations, to all parts
of the jail and to every prisoner confined therein.
Ewry visitor 5hould have the power to call for and ins·
peels auy book or other record in the jail unless the Superin-
' tendent, for reasons to be recorded in writing, declines on
the ground that its production is undesirable. Similarly,
every visitor should have the right to see any prisoner and to
put MY questions to him out of the bearing of any jail officer. E
There should be one visitor's book for both classes of visitors,
their remarks should in both cases he forwarded to the Ins-
pector General who should pass such orders as he thinks
necessary, and a copy of the Inspector-General's order should
be sent to the visitor concerned.
F
Paras 53-B aud 53-D are not only supplementary but procedurally
vital, being protective provisions from the stand-point of prisoners.
We except them here for double emphasis although adverted to
earlier :
) 53-B. All visitors, official and non-official, at every visit,
G
shall-
( a) inspect the barracks, cells, wards, workshed Md
other buildings of the jail generally aud cooked food;
(b) ascertain whether considerations of health, cleanli-
ness, and security are attended to, whether proper II
management and discipline are maintained in every
respect, and whether any prisoner is illegally detained,
594 SUPREME COURT REPORTS [1980] 2 S.C.R.
.A or is detained for an undue length of time, while
awaiting trial;
(c) examine jail registers and records;
(d) hear, attend to all representations and petitions made,
by or on behalf of prisoners; and
B ( e) direct, if deemed advisable, that any such representa-
tions or petitions b~ forwarded to Government.
53-D. No prisoner shall be punished for any. statement
made by him to a visitor unless au enquiry made by a Magis-
trate results in a finding that it is false.
,.
c We hope-indeed, we direct-the judicial and other official visitors
to live upto the expectations of these two rules and strictly implemellt
their mandate. Para 54 is also part of this package oE visitatorial
provisions with invigilatory relevance. We expect compliance with
these provisions and if the situation demands it, report to the Hi~
D Court for. action in the case of a_ny violation of any fundamental right
of a prisoner.
The long journey through jail law territory proves that a big void '
exists in legal remedies for prisoner injustices and so constitutional
mandates can become living companions of banished humans only if
non-traditional procedures, duly oriented personnel and realistic reliefs
meet the functional challenge. Broodly speaking, habeas corpus
powers and administrative measures are the pillars of prisoners' rilJhis.
The former is invaluable and inviolable, but for an illiterate, timorous,
indigent inmate community judicial remedies remain frozen. Eve11. ··-,.Y
so, this constitutional power must discard formalities, dispense with
F full particulars and demand of the detainer all facts to decide if humane
and fair treatment prevails, constitutionally sufficient and comportinc;
with the minimum international standards for treatment of prisoners.
Publicity within the prison community of court rulings in this area
will go a long way to restore the morale of inmates and, hopefully,
of the warders. So we direct the Delhi Administration to reach, in
G Hindi, the essentials of this ruling to the ken of the jail people.
The stress that we lay is on the need of the Court to be dynamic .(
and diversified in meeting out remedies to prisoners. Not merely the
contempt power but also the power to create ad hoc, and use the
services of, officers of justice must be brought into play. In this very
H case, Dr. Chitale, as amicus curiae, was so authorised, with satiafac-
tory results. American juristic thought has considered similar actio11. :
by courts using
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !.) 595
Masters-Primarily factfinders for the court; A
Receivers-Primarily hold, manage, or liquidate pro-
perty;
"Special" Masters-responsible for multiple functions
such as fashioning a plan and 'assisting in its implementation;
Monitors-responsible for observing the implementation B
process and reporting to the court; and
•
Ombudsmen-responsible for. hearing inmate complaints
and grievances, conducting investigations and making recom-
mendations to the court.
Courts which have utilised some of these special officers in- c
cluding; Hamilton v Schiro, 388 F. Supp. 1016 (E.D.La.
1970); and, Jackson v. Hendrick 321 A. 2d 603 (Pa. 1974)
(Special Matiters); Wayne County Bd. of Comm'rs., Civ.
Action 173271 (Cir. Ct. of Wayne City., Nich., 1972)
(Monitor); and, Morales v. Turman, 364 F. Suppl. 166
E.D. Tex 1973) (Ombudsmen) .(1) D
The use of special judicial officers, like the use of the
contempt power, holds considerable promise for assisting
conrts in enforcing judicial orders. Hopefully, their use will
be expanded ~nd refined over time.
These measures are needed since the condition is escalating. E
The situation in Tihar Jail is a reflection of crime explosion, judi-
. cial slow-motion and mechanical police action coupled with nnscientific ·
negativity and expensive futility of the Prison Administration. The
Superintendent wails in court that the conditions are almost unman-
ageable: F
(i) Huge overcrowding in the jail. Normal population
of the jail remains between 2300-2500 against 1273
sanctioned accommodation.
(ii) No accommodation for proper classification for
undertrials, females, habituals, casuals, juveniles,
political prisoners etc. etc. G
(iii) Untrained staff of the Assistant Superintendents.
Assistant Superintendents are posted from other
various departments of Delhi Admn. viz. Sales Tax,
Employment, Revenue, Civil Supplies etc., etc.
(iv) Untrained mostly the warders guard and their being R
non-transferable.
(I) p. 273-273 Krantz.
596 SUPREME COURT REPORTS [1980] 2 S.C.R.
A (v) A long distance from the coillis of the jail and pro-
duction of a large number of undertrial prisoners
roughly between 250-300 daily and their receiving
back into the jail in the evening.
(vi) The population of the jail having a large number of
B drugs addicts, habitual pickpockets having regular
gangs outside to !ookafter their interests legal and
illegal both from outside.
Other jails may compete with Tihar to bear the palm in bad treat-
ment and so the problem is pan-Indian. That is why we have been.
persuaded by the learned Solicitor General to adventure into this un-\
c discovered territory. The Indian Bar, and may be, the Bar Council "-
of India and the academic community, mnst aid the court and country
in this Operation Prison Justice. In a democracy, a wrong to some
one is a wrong to every one and an unpuhished criminal makes
society vicariously guilty. This larger perspective validates our deci-
D sional range.
Before we crystaiise the directions we issue one paramount thought
must be expressed. The goal of imprisonment is not only punitive
but restorative, to make an offender a non-offender. In Batra' s case
this desideratum was stated and it is our constitutiopal law, now impli-
cit in Art. 19 itself. Rehabilitation is a prized purpose of prison
E 'hospitalization'. A criminal mtist be cured and cruelty is not curative
even as poking a bleeding wound is not healing. Social justice and
. social defence--the sanction behind prison deprivation-ask for en- ·
lightened habilitative procedures. A leoamed writer has said :
The only way that we will ever have prisons that operate
F with a substantial degree of justice and fairness is when all
concerned with that prison--staff and prisoners alike-share
in a meoaningful way the decision-making process, share the
making of rule and their enforcement. This should not mean
three "snitches" appointed by the warden to be an "inmate
advisory committee". However, if we are to instill in people
G a respect for the democratic process, which is now the free
world attempts to live, we are not achieving that by forcing
people to live in the most etalitarian institution that we have
in our society. Thus, ways must he developed to involve
prisoners in the process of making decision that affect every
H aspect of their life in the prison.
The Standard Minimum Rules, put out by United Nations agencies
also accent on socialisation of prisoners and social defense :
SUNIL BATRA V· DELHI ADMINISTRAIION (Krishna Iyer, J.) 597
57. Imprisonment and other measures which result in A
cutting off an offender from the outside world are afflictive
by the very fact of taking from the person the right of self-
determination by depriving him of his liberty. Therefore the
prison system shall not except as incidental to justifiable
segregation or the maintenance of discipline, aggravate the
suffering inherent in such a situation. B
• • 58. The purpose of justification of a sentence of imprison-
•
ment or a similar measure deprivative of liberty is ultimately
to protect society against crime. This end can only be
achieved if the period of imprisonment is used to ensure, so
far as possible, that upon his return to society the offender c
is not only willing but able to lead a law-abiding and self
supporting life.
59. To this end, the institution should utilize all the reme-
dial, educational, moral, spiritual and other forces and forms
of assistance which are appropriate and available, and should D
seek to apply them according to the individual treatment needs
r of the ·prisoners.
Prison-processed rehabilitation has been singularly unsuccessful in
the .West and the recidivism rate in our country also bears similar testi-
mony : To get tough, to create mQre tension, to inflict more cruel E
punishment, is to promote more stress, more criminality, more des-
perate beastliness and is self-defeating though soothing to sadists. Hal-
lock, a professor at the University of Wisconsin says : ( 1)
.The stresses that lead to mental illness are often the same
stresses that lead to crime. Mental illness always has a mal-
F
adaptive quality, and criminality usually has a maladaptive
quality.
The final panacea for prison injustice is, therefore, more dynamic,
far more positive, strategies ·by going back tn man, the inner man.
- .•.'
J The ward-warden relationship needs holistic repair if prisons are, in
Gandhian terms, to become hospitals~ if penology, as modern crimi-
nologists claim, is to turn therapeutic. The hope of society from
G
investment in the penitentiary actualises only when the inner man with-
in each man, doing the penance of prison life, transforms his outer
values !\Ild harmonises the environmental realities witn the infinite
potential of his imprisoned being. Meditative experiments, iollow-up
H
researches and welcome results in many countries lend optimism to
(1) Roger G. Lampher_r, Freedom Fron1 Crime p.5
598 SUPREME COl!RT REPORTS (J 980j 2 S.C.ll..
A techniques of broadening awareness, deepening consciousness and
quietening the psychic being.
Jt is of seminal importance to note that the Tamil Nadu Priwn
Reforms Commission (1978-79) beaded by a retired Chief Justice of
the High Court of Patna, worki"ng with a team of experts, has rofer-
B rcd with approval to successful experiments in Transcendental Medi-
tation in the Madurai Central Prison : (')
Success has been claimed for this programme. It is re-
ported that there is "reduction of anxiety and fear symptoms,
greater flexibility in dealing with frustration, increased desire
to care for others, and ability to interact in group situations
c viz. rational rather than purely aggressive means. Some in-
mates reported spontaneous reduction in clandestine use of
alcohol and ganja; and even cigarette smoking was less. Pri-
son authorities informed us that they noticed personality
• changes in some of these prisoners, and that they now had
D calm and pleasant exchanges with these inmates. Their be-
haviour towards others in the prison and relationship with
prison authorities also changed considerably". There is a
proposal to extend this treatment to short term prisoners
also. This treatment may also be tried in other prisons where
facilities exist. A copy of the report of the Director of the
E Madurai Institute of Social Work is in Appendix XI.
• The time for prison reform has come when Indian methodology on
these lines is given a chance. We do no more than indicate the sign-
post to Freedom From Crime and Freedom Behind Bars as a burgeon-
ing branch of therapeutic jurisprudence. All this gains meaning where
we recognise that mainstreaming prisoners into community life as will-
F
ing members of a law-abiding society is the target. Rule 61 of the
Standard Minimum Rules stresses this factor(') :
61. The treatment of prisoners should emphasize not
their exclusion from the community, but their continuing part
in it. Community agencies should, therefore, be enlisted
G wherever possible to assist the staff of the institution in the
task of social rehabilitat(on of the prisoners. There should be
in connection with every institution social workers charged
with the duty of maintaining and improving all desirable rela-
tions of a prisoner with his family and with valuable social
(1) Vol. 1 pp. 69-70. Also see Vol. IJT, Appendix XI, p. 26.
H
(2) Standard J\.1inimum Rules for the Tre<>.tment of Prisoners and Related
recommendations- U. N. Dept. of Economics & Social Welfare,
New York, 1958.
SUN!L BATRA V· DELHI ADMINISTRATION (Krishna Iyer, J.) 5~9
agencies. Steps should be taken to safeguard, to the minimum A
extent compatible with the law and the sentence, the rights
relating to civil interests, social security rights and other
social benefits of prisoners.
It follows that social resources, helpful to humane treatment and B
mainitreaming, should be ploughed in, senior law students screened •
• • by the Dean of reputed Law Schools may usefully be deputed to inter-
view prisoners, subject to security and discipline. The grievances so
gathered can be fed back into the procedural mechanism viz. the Dis•
trict Magistrate or Sessions Judge. The Delhi Law School, we indi-
cate, should be a"Uowed to send selected students under the leadership c
of a teacher not only for their own clinical education but as prisoner-
grievance-gathering agency. Other service organisation, with good cre-
dentials, should be encouraged, after due checking for security, to play
a role in the same direction. The Prifons Act does provide !or rule-
maldng and issuance of instructions which can take care of this sug-
gestion.
Omega
The omega of our judgment must take the shape of clear directives E
to the State and prison staff by epitomising the lengthy discussion. To
clinch the issue and to speN out the precise directions is the next step.
1. We hold that Prem Chand, the prisoner, has been tortured ille-
gally and the Superintendent cannot absolve himself from responsibility F
even though he may not be directly a party. Lack of vigilance is limited
guilt. We do not fix the primary guilt because a criminal case is pend-
ing or in the offing. The State shall take action against the investigating
police for the apparently collusive dilatoriness and deviousness we have
earlier indicated. Policing the police is becoming a new ombudsmanic
task of the rule of law. G
2. We direct the Superintendent to ensure that no corporal punish-
ment or personal violence on Prem Chand shall be inflicted. No irons
shall be forced on the person of Prem Chand in vindictive spirit. In
those rare cases of 'dangerousness' the rule of hearing and reasons set H
out by this Court in Batra's case and elaborated earlier shall be com-
plied with. ·
600 SUPREME COJRT REPORTS [1980] 2 S.C.R.
,r
A 3. Lawyers nominated by the District Magistrate, Sessions Judge,
High Court and the Supreme Court will be given all faciiities for inter-
views, visits and confidential communication with prisoners subject to
discipline and security considerations. This has roots in the visitatorial
and supervisory judicial role. The lawyers so designated shall be bound
to make periodical visits and record and report to the concerned court
B results which have relevance to legal grievances.
4. Within the next three months, Grievance I>;,posit Boxes shall be
rr.aintained by or under the orders-of the District Magistrate and the 1
ailll
c Sessions Judge which will be opened as frequently as ·is deemod fit and """- -
suitable action taken on complaints made. Access lo such boxes shall
be accorded to all prisoners.
5. District Magistrates and Sessions Judges shall, personally or
D through surrogates, visit prisons in their jurisdiction and afford effective
opportunities for ventilating legal grievances, shall mlike expeditious
enquiries thcte into and take suitable remedial action. In appropriate
cases reports shall be made to the H:gh Court for the latter to initiate,
if found necessary, habeas action.
E
It is siguificant lo note the Tamil Nadu Prison Reforms Commis-
sion's observations :
38.16. Grievance Procedure :-This is a very important
F
righ l of a prisoner which does not appear to have been
properly considered. The rules regulating the appointment
and duties of non-official visitors and official visitors to the
prisons have been in force for a long time and their primary
functions is "to visit all parts of the jail and to see all prisoners·
G and to hear and enquire into any complaint that any prisoner
may make". In practice, these rules have not been very
effective in providing a forum for the prisoners to redress their
grievances. There are a few non-official visitors who take up
their duties conscientiously and listen to the grievances of the
prisoners. But most of them take this appointment solely as
H a post of honour and are somewhat reluctant to record in the
· visitor~' book any grievance of a prisoner which might cause
embarrassment to the prison staff. The judicial officers, viz.,
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer,!.) 691
the Sessions Judge and the Magistrates who are also ex-officio A
visitors do not discharge their duties effectively.(1)
We insist that the judicial officers- referred to by ns shall carry out their
d)lties and responsibilities and serve as an effective grievance
mechanism.
~-.
6. No solitary or punitive cell, no hard labour or dietary change as
painful additive, no other punishment or denial of privileges and ame-
nities, no transfer to other prisons with penal consequences, shall be
imposed without judicial appraisal of the Sessions Judge and where
such intimation, on account of emergency, is difficult, such information c
shall be given within two days of the action.
Conclusion
What we have sfated and directed constitute the maudatory part of
the judgment and shall be complied with by the State. But implicit in · D
the discussion and conclusions are certain directives for which we do
t not fix any specific time limit except to indicate the urgency of their
.,. r implementation. We may spell out four such quasi-mandates.
1. The State shall take early steps to prepare in Hindi, a Prisoner's
•• Handbook and circulate copies to bring legal awareness home to the f<.
inmates. Periodical jail bulletins stating how improvements and habili-
tative progra=es are brought into the prison may create a fellow-ship
which will ease tensions. A prisoners' wall paper, which will freely
ventilate grievances· will also reduce stress. All these are implementary
of s. 61 ef the Prisons Act.
F
2. The State shall take steps to keep up to the Standard Minimum
Rules for Treatment of Prisoners reco=ended by the United Nations,
especially those relating to work and wages, treatment with dignity com-
munity contact and correctional strategies. In this latter aspect, the
observations we have made of holistic development of personality shall
be kept in view.
3. The Prisons Act needs rehabilitation and the Prison Manual total
overhaul, even the Model Manual being out of focus with healing goals.
A correctional-cum-orientation course is necessitous for the prison staff
inC'Ulcating the constitutional values, therapeutic aproaches and
ll"l!Sion-free management. R
(1) Vol. II, p. 76
1102 SUPREME CO!JRT REPORTS (1980] 2 S.C.R.
A 4. The prisoners' rights shall be protected by the court by its writ
jurisdiction plus contempt power. To make this jurisdiction viable,
free legal services to the prisoner programmes shall be promoted by
professional organisations recognised by the Court such as for e.g. Free
Legal Aid (Supreme Court) Society. The District Bar shaH, we re-
commend, keep a cell for prisoner relief.
B
In this connection, it is heartening to note that the Delhi University,
Faculty of Law, has a scheme of free legal assistance even to prisoners.
The Declaration on the Protection of All Persons from Torture and ·
c Other cruel, Inhuman or Degrading Treatment or Punishment adopted
by U. N- General Assembly (Resolution 3452 of 9 December 19"5)
bas relevance to our decision. In particular-
Article 8.-Any persO'll who• alleges that he has been sub-
D jected to torture or other cruel, inhuman or degrading treat-
ment or punishment by or at the instigation of a public offi-
cial shall have the right to complain to, and to have his case
impartially examined by, the competent authorities of the
State concerned.
E
Article 9.-Wherever there is reasonable ground to be-
lieve that an act of torture as defined in article I has been
committed, the competent authorities of the State concerned
shall promptly proceed to an impartial investigation even if
there has been no formal complaint.
F
Dr. Chitale has handed up to us an American Civil Liberties Union
Hand-book on the Rights of Prisoners. It rightly sets the sights of
prison justice thus(') :
G
As an institution, our penal and "correctional" system is
an abject failure. The conditions in America's jails and
prisons virtually ensure psychological impairment and physi-
cal deterioration for thousands of men and women each year.
Reformation and rehabilitation is the rhetoric; systematic
H
dehumanization is the reality. Public attention is directrd
(l) David Rudovsky Alvin J. Bronstein Edward I. Koren,p.11
SUNIL BATRA V· DELHI ADMINISTRATION (Krishna Iyer, J.) 613
Qllly sporadically toward the subhuman conditiC111~ that pre- A
vail in these institutions, and usually only because the priso-
Rers tl~mselves have risked many more years in confinement,
and in some cases even their lives, to dramatize their situation
by protest.
B
The 'central evil' of prison life, according to this handbook, is "the
unreviewed administrative discretion granted to the poorly trained per-
• • sonnel who deal directly with prisoners. Moreover, even those rights
whicll are now guaranteed by the courts are often illusory for many
prisoners. Implementation and enforcement of these rights rest pri-
Jllarily in the hands of prison officials. Litigation is costly and time- c
consuming, and few lawyers have volunteered their service in this area.
Thus eyen those minimal rights which appear on paper are often in
reality ·denied. " We conclude with the hope that the State, though
preoccupied with many pressing problems, will discharge its constitn-
tioaal obligation to the invisible mortals incarcerated by it and legisla-
tively and administratively re-make a Prison Code adhering to the high D
vahi~s of the Preamble. Over a hundred years ago (1870) (')-
" .... some American prison administrators assembled to
discuss their common problems and founded what is now the
American Correctional Association. At the very first
E
meeting, these remarkable men set down a justly famous
'Statement of Twenty-two Principles."
Among the twenty-two were these :
"Refonnation, not vindictive suffering, should be the pur- F
pose of the penal treatm.ellf_pf prisoners. The prisoner should
be made to realize that his destiny is in his own hands :
Prison discipline should be such as to gain the will of the
prisoner and conserve his self-respect;
G
The aim of the prison should be to make industrious free
men rather than orderly and obedient prisoners.
This quote from the well-known work "The Crime of Punishment"
extracted by George Ellis in his book "Inside Folsom Prison : Trans- H
(1) Karl Menninger, M. D. The Crime of Punishment (New Yeork; The Vikin&
Press, Inc. 1969) p. 219.
604 SUPREME COURT REPORTS [1980] 2 S.C.P..
A cendental meditation and TM-Sidhi Program" (1) is notable as a practi.-
cable project which will reduce the number of prisoners by raising the
nature of prisoners.
In the package of benign changes needed in our prisons with a view
B
to reduce tensions and raise the pace of rehabilitation, we have referred
to acclimatization of the community life and elimination of sex vice
. '"'
vis a vis prisoner we have also referred to the unscientific mixing up in
practice of under-trials, young offenders and long-term convicts. This
point deserves serious attention. A recent book "Rape in Pri~o11."
c states : (')
"One of the most horrendous aspects of a jail sentence is
the fact that not only are the young housed with the older
offenders, but those awaiting trial share the same quarters as
D convicted inmates. The latter individuals have little to lose
in seeking sexual gratification through assault, for they have
to serve their time any way ..... As matters now stand, sex is
unquestionable the most pertinent issue to the inmates' life
behind bars ... There is a great need to utilize the furlough
system in corrections. Men with record showing good be-
haviour should be released for week ends at home with their
families and relatives.
Farewell to this case is not final so far as the jailor and the police
F investigator are concerned. The former will stand his trial and shall
receive justice. We say no more here. The invesitgator invite~ our
displeasure and the Assistant Public Prosecutor, whom he consulted,
makes us unhappy since we have had a perusal of the case diary. The
crime alleged is simple, the material relied on is short and yet, despite
repeated observations from the Bench the investigator has delayed
G dawdily the completion of the collection of evidence and the laying of
the charge-sheet. The prisoner who is the victim has been repeatedly
questioned under different surroundings and divergent statements are
recorded. We do not wish to state what we consider to be the obvious
luference, but we are taken aback when the Assistant Public Prosecutor
has given an opinion which, if we make presumptions in bis favour,
H
(1) KTC Publications, Pam Springs, California, p. xxi.
(2) Anthony M.Scacco, Jr. "Rape in Prison',' pp. 18, 33, 113.
SUNIL BATRA v. DELHI· ADMINISTRATION (Pathak, J.) 605
shows indifferences and, if we make contrary inferences, makes us A
suspect. When offences are alleged to have taken place within the pri-
son, there should be no tinge or trace of departmental collusion or
league between the police and the prison staff. We make these minimal
observations so that the State may be alerted for appropriate action.
Surely, the conduct of the prosecution cannot be entrusted to one who
has condemned it in advance. B
\< • We allow the petition and direct a writ to issue, including the six
mandates and further orderJJli!t a copy of it be sent for suitable ac~ion
' co the Ministry of Home AftWs and to all the State Governments smce
Priron Justice has pervasive relevance. c
PATHAK, J.-I have read the judgment prepared by my learned
brotl1er. For my part, I think it sufficient to endorse the following find-
ing and direction detailed towards the end of the judgment :
(1) The prisoner, Prem Chand, has been tortured while in cus-
tody in the Tihar Jail. As a criminal case is in the offing
or may be pending, it is not necessary in this proceeding to
decide who is the person responsible for inflicting the tor-
ture.
E
(2) The Superintendent of the Jail is directed to ensure that no
... punishment or personal violence is inflicted on Prem Chand
by reason of the complaint made in regard to the torture
visited oo him.
Besides this, I am in general agreement with my learned brother on
the. pressing need for prison reform and the expeditious provision for
adequate facilities enabling the prisoners, not only to be acquainted with
their legal rights, but also to enable them to record their complaints and
G
grievances, and to have confidential interviews periodically with lawyers
nominated for the purpose by the District Magistrate or the Court
having jurisdiction subject, of course, to considerations of prison dis-
cipline and security. It is imperative that District Magistrates and
Sessions Judges should visit the prisons in their jurisdiction and afford
effective opportunity to the prisoners for ventilating their grievances H
and, where the matter lies within their powers, to make expeditious
enquiry therein and take suitable remedial action. It is also necessary
60i SUPREME COURT REPORTS (1980] 2 S.C.R.'
A that the Sessions Judge should be informed by the jail authorities of any
punitive actiO'll taken against a prisoner within two days of such action.
A statement by the Sessions Judge in regard to his visits, enquiries
made and action taken thereon shall be submitted periodically to the
High Court to acquaint it with the conditions prevailing in the prisons
within the jurisdiction of the High Court.
B
N.V.K. Petition allowed.
MGIPF-21 SCl/80-d-1-80-2,50G
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