ORDER
1. All these writ petitions, which are more or less similar though by different individuals, and which are for the same reliefs, were heard together, and are being disposed of together.
2. One Valambal has filed W.P. No. 4623 of 1979 on behalf of seven persons : Kaliaperumal, Valluvan, Nambiar, Masilamanani, Ananthanayaki, Rajamanickam, and Arumugham, who are all life convicts. W.P. 766 of 1980 is by one Kandaswami, who is a life convict. W.P. 767 of 1980 is by one Gopal, a life convict, W.P. 768 of 1980 is by one Panchalingam, a life convict, W.P. 769 of 1980 is by Valluvan the life convict covered by W.P. 4623 of 1979 filed by Valambal, as aforesaid, W.P. 770 of 1980 is by one Krishnaveni, a life convict. W.P. 771 of 1980 is by one Kumarakuppan who has been sentenced to three years’ rigorous imprisonment. W.P. 772 of 1980 is by one Thiagarajan, a life convict. W.P. 773 of 1980 is by one Tamilarasan who has been sentenced to seven years’ rigorous imprisonment and also for 30 months’ rigorous imprisonment. They had been convicted of offences under the Indian Penal Code and sentenced therefor and are serving the sentences in one or other of the Central Jails at Madras, Vellore, Salem and Coimbatore. The petitioners in W.Ps. 766 to 773 of 1980 have preferred their petitions from jail through the Superintendent of the Central Jail, Coimbatore. Where they are serving the sentence. For purpose of convenience, these convicts would be referred to in this judgment as the ‘petitioners’.
3. The reliefs sought for by the petitioners in these writ petitions are :-
A. That the three purported Government Orders (which will be noticed in the succeeding paragraphs) with regard to lock-up and the Q Branch Police, interference and making for a list of the petitioners convicts’ close relative and bona fide legal advisers to struck down as null and void.
B. That an end be put to the day and night solitary confinement of the petitioners and the status quo ante be restored in the matter so that the petitioners are not locked up in their cells during day time;
C. (a) That the Q Branch police or any other branch of the police be restrained from interfering in any way at any time in any affair connected with the petitioners’ jail life.
(b) That the Q branch or any other branch of the police be not allowed to censor the mail of, and monitor in interviews with, the petitioners;
D. (a) That the petitioners be allowed to meet their relatives, friends and legal advisors without any discrimination.
(b) That the jail authorities be restrained from asking the petitioners for a list of their close relatives and bona fide legal advisers for verification and approval by the Q branch police in order to confine the interview with the petitioners to those approved by the Q branch police;
(c) That the petitioners’ named relatives who were refused permission to meet the petitioners, be paid due compensation for being put to unnecessary loss of time and money;
E. And the respondents be restrained from maltreating and discriminating against the petitioners in the abovesaid manners.
4. By virtue of the judgment of the Supreme Court in W.P. No. 1009 of 1979, dated 20-12-1979 (Sunil Batra v. Delhi Administration ). Mohan J. before whom these petitions were posted regarding maintainability as habeas corpus petitions, after observing that if redress could be afforded to the petitioners there should be no difficulty in entertaining petitions filed by them, as petitions for the issue of writs of habeas corpus, directed the office to number the petitions as petitions for the issue of writs of habeas corpus. Accordingly the above petitions have come up before us.
5. Mr. K. V. Sankaran, learned counsel, appears for the petitioners in W.P. 4623 of 1979 and 766, 767, 770 and 771 of 1980. Mr. N. T. Vanamamalai learned counsel, appears for the petitioners in W.P. Nos. 768, 769, 772 and 773 of 1980.
6. The respondents in these petitions are the Superintendents of Central Jail at Madras, Coimbatore, Salem and Vellore; the Inspector General of Prisons of Tamil Nadu, the Home Secretary, Government of Tamil Nadu, and the Director General of Police Tamil Nadu.
7. The representation and the allegations contained in the petitions filed on behalf of all the petitioners inter alia are to the effect that the petitioners are kept in solitary confinement all the day and night except for an hour a day, that the jail authorities have informed them that this is done in accordance with a Government Order, that in respect of correspondence and mail, in respect of interview and in respect of getting legal advice the jail authorities insist upon the petitioners to give the particulars before hand for the purpose of getting them passed through the Q branch police and that the Q branch police are illegally interfering with the administration in the jails in relation to the petitioners herein.
8. The petitioners further contend that jail authorities cited three Government Orders without giving copies of the same to them and state that the three orders deal with lockup, the Q branch police interference in interviews, letters and transfers, and with obtaining list of close relatives and bona fide legal advisers from the petitioners. These Government Orders, according to the petitioners, cannot be valid and have to be struck down as unconstitutional. It is further stated that the petitioners are ill-treated by branding them as ‘nexalites’. Once a person is convicted for an offence by an established Court, the further classification as ‘nexalite prisoner’ is unknown to any canons of jurisprudence. If the petitioners are discriminated on the ground that they are nexalites, when especially there is no ban on any of such categories imposed by the Government established in a State, it will definitely be against the constitutional provisions and will amount to discrimination between the petitioners and the other prisoners who have been convicted for similar offences. According to the petitioners, the purported Government Orders do not at all cite any section of law in support of their legal validity. The jail authorities on the strength of the said Government Orders meet out ill-treatment to the petitioners branding them as nexalites and also have informed the petitioners that they are acting on the strength of the three Government Orders. There cannot be any Government Orders categorising certain prisoners according to their political views, and if so, the said Government Orders have to be struck down as being discriminatory. The petitioners further submit that by effecting solitary confinement of the petitioners, the jail authorities are imposing a punishment over and above the punishment awarded by the Court of law. It is stated that the Jail Manual does not lay down day and night solitary confinement for an indefinite period. There is a definite allegation in the petitions that the purported Government Order with regard to the lock-up allows that petitioners only one hour a day out of the cell within the yard and that too singly. It has been further stated that the petitioners who are legally entitled to play games and have entertainments like cinemas, are denied these rights on the basis of the purported Government Orders. There is a specific allegation by the petitioners that they are lawfully entitled to be interviewed by their friends as well as their relations and that the authorities have no legal locus standi to ask the petitioners to give a list of close relatives and bona fide legal advisers for the purpose of having the same verified and approved by the Q branch police and confining the interviews to only those endorsed by the Q branch police. Such restrictions stated to be made on the basis of the Government Orders, according to the petitioners, are not only illegal but are unreasonable and inhuman. The petitioners further state that they have no objection to their letters being censored by the jail authorities and their interviews being conducted in the presence of, and monitored by, the jail authorities. It the Government finds these legal and usual methods to be inadequate. it can very well make better and more foolproof arrangements without infringing upon the legitimate rights of the petitioners. But to allow the Q branch police or, for that matter, any other branch of the police, to look into the mail of, and monitor the interviews with the petitioners, is a clear infringement upon their legal rights. There is no provision in law for police people to scrutinise the letters of an monitor the interviews with a convict, just because he happens to belong to a particular political party. Finally the petitioners have condemned the interference by the Q branch police in every walk of life within the jail premises in relation to the petitioners including their interference with the jail authorities’ rights in affording medical treatment to the petitioners. In short, the petitioners submit, though they are to be de jure in jail custody, they are de facto in Police custody, and this state of affairs really make a mockery of the independence of the Jail department from the police department.
9. With the abovesaid allegations, the petitioners have come forward for the reliefs which we have mentioned in paragraphs supra.
10. Mr. K. V. Sankaran, learned counsel, and Mr. N. T. Vanamamalai, learned counsel, have given to us an extract of the substance of the petitioners’ prayers, which runs thus –
(a) That the three purported Government orders with regard to lockup, Q branch police interference and asking for a list of the petitioners’ close relatives and bona fide legal advisers be struckdown as null and void;
(b) that an end be put to the day and night solitary confinement of the petitioners and the status quo ante be restored in this matter so that the petitioners are not locked-up in their cells during day time.
(c) That the legitimate rights of the petitioners to play games and have entertainments like cinema be restored;
(d) That the legitimate rights of the petitioners to utilise in full the educational facilities available in jail be restored.
(e) That the Q branch police or any other branch of Police be restrained from interfering in any way at any time in any affairs connected with the petitioners’ jail life.
(f) That the Q branch police or any other branch of the police be not allowed to censor the mail of, or monitor the interviews with, the petitioners;
(g) That an end be put to the arbitrary jail transfers of the petitioners at police instance and they be kept in a jail nearer home, so that they can meet their family people often and arrange for their defence in the pending cases;
(h) That the petitioners be allowed to meet their relatives, friends and legal advisers without any discriminations;
(i) That the jail authorities be restrained from asking the petitioners for a list of their close relatives, bona fide legal advisers, for verification and approval by the Q branch police in order to confine the interviews with the petitioners to those approved by the Q branch police.
11. Learned counsel appearing for the petitioners in the respective petitions submitted that they are confining their arguments only with reference to the above reliefs which they have stated before this Court.
12. The Inspector General of Prisons, who is the second respondents, has filed a counter-affidavit in W.P. 4623 of 1979 on behalf of all the respondents denying ill-treatment alleged to be meted out to the petitioners and has inter alia stated that the petitioners are nexalites, that nexalite prisoners are treated on par with other classes of prisoners except in the matter of confinement, interviews, transfers and the privilege of letters writing for which the Government have issued separate guidelines for adoption, and that though the petitioners have political affiliation they were convicted and sentenced to terms of imprisonment under the provisions of the Indian Penal Code for criminal offences of murder etc., committed by them. It has been further averred that the petitioners will not come under the definition of ‘political prisoners’ that the interviews were conducted in the presence of Officers of the Q branch police C.I.D. that the petitioners refused to furnish list of those persons who wanted to interview them and that was why the interviews sought for were refused. The counter-affidavit further states that the Government in G.O. No. 1067 Home dated 24-4-1979, have issued guidelines for conducting interviews to nexalites prisoners and that interviews of nexalite prisoners should be confined to close relations and bona fide legal advisers. It has also been stated that their interviews must be conducted in the presence of the Q branch CID officials. As regards the confinement of the petitioners, the second respondent has stated that they are kept in a separate block having single cell as per G.O. No. 825 Home dated 28-3-1971. This is done in order to prevent the nexalite prisoners from indoctrinating the other prisoners. As there is no separate prison for confining extremist prisoners in the State, they are at present being kept in separate block having single cells in the existing Central Prison and not in the condemned cells. It has been further stated that legitimate requirements are being provided to these respondents. They are taken out in the morning for ablutions, morning meals, etc., and, in the noon, for mid-day meal, and, in the evenings, for evening meals. Further, as per G.O. Ms. No. 1503 Home dated 18-6-1979, they are allowed to come out to their cells during daytime for strolling and doing exercise for one hour daily within their enclosures. Regarding threat of hunger-strikes, it has been submitted that all reasonable requirement have already been provided even originally and the strikes were uncalled for. Convict No. 5150 Vathiar alias Kaliaperumal (concerned in W.P. 4623 of 1979) now confined in the Central Prison, Vellore, attempted to escape from the Central Prison Tiruchirapalli, on the night of 20/21-4-1979 along with four other nexalite and hence a case was registered against him and he was sent to court on several occasions in connection with the case. Their is no information or complaint about the hand cuffing of the nexalite prisoners in the convict wards attached to the Government Head quarters hospitals, as escort is being provided by the police department. As regards interviews, the second respondent has stated in the counter affidavit that the jail authorities strictly follow the instructions contained in G.O. Ms. No. 1067 Home dated 24-4-1979 and G.O. Ms. No. 20 dated 3-1-1980. Restricted interviews and monitoring of the same are done by the Q branch police officials in the interest of security. As regards the specific allegations regarding convict Kaliaperumal, the second respondent has stated that no compound wall has been erected in the cell to prevent him from seeing any body passing by the block in which the nexalites are confined in Central Prison, Vellore, is adjacent to the kitchen and opposite to the firewood godown. Hence it is not true to say that they cannot see any body, as prisoners will be working in the firewood godown and going to tower and kitchen often. It is not true that food is supplied in mud pots used for cleaning latrines and sometimes phenyle is also added to the ‘sambar’, as alleged in the petition. The second respondent has reiterated that the prisoners involved in these petitions, though nexalites, are treated on par with other convict prisoners except in the matter of confinement, interviews, transfers and the privilege of writing letter to their relations. Restriction on these matters is being made in obedience to the separate guidelines issued by the Government. It has been submitted by the second respondent that nexalites are supplied with newspapers and magazines at Government cost as the case of other convicted prisoners. The second respondent has admitted that the view of the serious nature of offence in which the nexalite prisoners are involved and their adherence to the policy of violence, mis-behaviour and indiscipline and annihilation of class enemies, the incoming and outgoing letters of the nexalite prisoners are censored by an officer from the District Social Branch City in co-ordination with C.I.D. branch/special branch at the prison premises itself to facilitate speedy censorship before they are sent to the addresses. As regards medical treatment accorded to the prisoners, the second respondent has definitely stated that proper treatment is being given to all the prisoners and wherever necessary they are referred to the headquarters hospital. The same treatment was also done for convict Nambiar. As regards entertainment, the second respondent has stated that a radio set has been installed in all the prisons in such a manner that programmes can be heard by all the prisoners confined. Film shows are conduced in the prisons at regular intervals. However, film shows for nexalite prisoners are governed by the instructions contained in G.O.Ms. No. 92 Home dated 21-1-1976, as modified in Government Memo No. 27336/Pr. III/76. The second respondent has further stated that according to instructions, nexalite prisoners may be permitted as far as possible to witness film shows from their cells and in other cases where such facilities are not available, they may be brought to the vicinity where film show is conducted and kept at a distance having no contact with other prisoners and under special guard subject to the condition that the Superintendents of Prisons may use their discretion according to the facilities and security arrangements available in the respective prisons. It has been further averred that from the security point of view these prisoners are kept at different places irrespective of their relations and that nexalite prisoners are treated on par with other prisoners and clothing, bedding, reading facilities and diet are given as per the rules in force as in the case of other convict prisoners. The second respondent has further stated that these petitioners are allowed for strolling and doing exercises with proper securityguard, that they are provided with flush out latrines, that they are provided with good food, that except that they are exclusively kept not allowing them to mingle with the other prisoners, they are treated well strictly in accordance with the rules contained in the Tamil Nadu Prison and Reformatory Manual, Volume II, and that they are all treated as B class prisoners and that such treatment is given uniformly in all the prisons where nexalite prisoners are confined. Finally, the second respondent has stated that there is absolutely no harassment or illtreatment of any kind and that as such the writ petitions have to be dismissed with costs.
13. For this counter affidavit, the petitioners have filed a common reply affidavit, dated 3-4-1980. It is unnecessary for us to deal with this elaborate reply affidavit in view of the fact that learned counsel appearing for the petitioners have confined their arguments to the reliefs stated in paragraphs supra.
14. By a further counter affidavit dated 27-8-1980, the second respondent has inter alia stated that the petitioners who want certain reliefs by means of these writ petitions are ‘extremists’ having been indulging themselves in all sorts of dangerous activities as explained in the counter affidavit filed earlier and therefore, form a class by themselves, viz, ‘extremists’ a dangerous set of people indulging in violence, misbehaviour and discipline, and that in this view the treatment meted out to them treating them as a class by themselves, which is absolute warranted in the circumstances of the case, cannot be said to offend Art. 14 of the Constitution in view of the fact that it is well established that classification based on intelligible differentia having a nexus to the object to be achieved is perfectly valid. It has been further averred that the actions of the jail authorities which are complained of by the petitioners are well within their authority and jurisdiction and therefore the petitioners are not entitled to any relief whatsoever. The petitioners are kept apart from the others separately on the strength of Rule 213 of the rules framed under the Prisons Act. Hence the complaint of the petitioners as regards their solitary confinement is wholly baseless in view of the fact that the respondents have authority to confine the prisoners of any class like the petitioners whom it is considered desirable for any reason to keep apart from others. The second respondent further submitted that dehors the Government Orders referred to by the petitioners the respondents are authorised under the rules framed under the Prisons Act, of 1894, to confine them separately under the statuary rules in force. As regards interviews, the second respondent has stated that under Rule 434 of the Jail Manual, the Superintendent of the Jail has got every direction to refuse an interview to a prisoner which the prisoner would ordinarily be entitled to under the rules if in the opinion of the Superintendent it is inexpedient in public interest to allow any particular person to interview a prisoner. It has been further submitted that having regard to the provision contained in Rules 426-D and 434 of the rules the petitioners have no right to have an interview with anybody they chose as claimed in the writ petitions. Hence the jail authorities have sample jurisdiction to screen of restrict the interviews of any prisoners, more so in the case of the petitioners who form a class by themselves. Under Rule 430, every interview with a convict prisoner shall take place in the presence of an experienced jail officer for reasons set out in the said rules itself who can place himself in such a position so as to see and hear what transpires between the prisoner and the person with whom he interviews. No doubt, in respect of the petitioners, apart from the jail officials, referred to in the rules, certain police officials have also been directed to be present in order to maintain strict supervision. Though under under the rule, the jail officials present at the time of the interview can place themselves in such a position as to see and hear what passes between the prisoner and the person with whom the interview is to take place, the Government have ordered that the jail officials and the police officials present at the time of the interview be within the sight but beyond the earshot in the case of legal interview. In the foregoing circumstances, it has been submitted by the second respondent that their is absolutely no merit in the contention of the petitioners in this regard. In so far as the complaint regarding censoring of the mail despatched and received, by the petitioners, the second respondent submitted that Rule 435 confers absolute jurisdiction and authority on the jail authorities to censor the incoming and outgoing letters of all the prisoners. Hence the complaint of the petitioners relating to the censoring of the letters is absolutely without any basis and wholly misconceived. In so far as lock-up of the petitioners in the cell day and night, the second respondent submitted that the same had been done only with a view to preserve discipline and orderliness inside the jail. The factum of some of the prisoners escaping from the jail and also including other prisoners to indulge in misbehaviour and indiscipline affecting the smooth functioning and safety of both the prisoners as well as the officers of the prison, has made respondents to confine the petitioners in separate cells. It is in these circumstances, that having regard to the fact that the petitioners form a class, the action of the jail authorities in confining them day and night is perfectly valid. The second respondent has further stated that the petitioners are allowed about five to six hours outside the cell every day during the morning meal, lunch and dinner and the time given to them for strolling and doing exercises. Hence, there is no merit in the contention of the petitioners in this regard. The petitioners, according to the respondents, are allowed to see films shows from within the cell wherever it is possible and from outside in other cases but away from other prisoners. With the abovesaid allegations, the second respondent who has filed the further counter-affidavit on behalf of all the respondents, has stated that the actions of the jail authorities are well within their jurisdiction, well in accordance with the statutory rules and in any event saved from any complaint under Art. 14 of the Constitution of India. The respondents would thus pray for a dismissal of the writ petitions.
15. The main contention of the petitioners is that three purported Government Orders with regard of lockup, Q branch police interference and asking for a list of the petitioners’ close relatives and bona fide legal advisers have to be struck down as null and void, These Government Orders have not been produced by the respondents and they claim privilege regarding their production. The learned Advocate General clearly and categorically mentioned before us that the steps taken by the jail authorities regarding lock-up, interviews and allowing the Q brench police to censor the mails and monitor the interviews of the petitioners, are so taken by virtue of the powers given to the Superintendent of Jails under the Prisons Act IX of 1894 and also as per the provisions contained in the Madras Prison and Reformatory Manual (hereinafter referred to as the Jail Manual). The learned Advocate General further submitted that he would justify the action of the Superintendents of the concerned jails from the abovesaid rules and regulations even though the counter-affidavit filed by the second respondent makes mention of the Government Orders, such as G.M. No. 1067 Home dated 24-4-1979 as amended by G.O. 2205 Home dated 3-9-1979 issuing guidelines for interviews with nexalite prisoners, G.O. No. 825 Home dated 28-3-1971, for keeping nexalite prisoners in single cell, G.O.Ms. No. 1503 Home D/- 18-6-1979 laying down instructions for taking out nexalite prisoners to have morning ablutions, morning meals, midday meals, evening meals and exercises, G.O.Ms. 21 Home dated 3-1-1980 dealing with interviews and G.O.Ms. 92 Home dated 21-1-1976 as modified in Memorandum No. 27336/Pr/III dated 15-4-1976 issuing instructions for allowing nexalite prisoners to witness film shows. The learned Advocate-General reiterated his argument that he will justify the action of the Superintendent of the concerned jails dehors the abovesaid Government Orders and stated that the authorities derive the power under the rules and regulations referred to above and therefore there is no need to depend upon the G.Os. or instructions even though they have been referred to in the counter-affidavit filed by the second respondent. Though the source of power which the authorities have was, wrongly described in the counter-affidavit as being derived from certain Government Orders, instructions and memoranda, the same can be ignored if it is justified that such power is available irrespective of the abovesaid source. In view of the present argument advanced by the learned Advocate-General, there is no question of the authorities acting on the basis of any Government Orders and as such the question of striking down certain Government Orders does not arise for consideration in these writ petitions.
16. We can presently look into the powers of the jail authorities, as contained in Acts and Regulations, in respect of interviews with prisoners, censoring of the mails of the prisoners, confinement of the prisoners, disciplinary action that can he taken against prisoners in certain cases and matters akin to this.
17. The Prisoners Act III of 1900 states in its preamble –
“Whereas it is expedient to consolidate the law relating to prisoners confined by order of court, it is hereby enacted as follows –
Section 3 of this Act says – “The officer in charge of a prison shall receive and detain all persons duly committed to his custody, under this Act or otherwise, by any court according to the exigency of any writ, warrant or order by which such person has been committed or until such person is discharged or removed in due course of law.”
Section 4 of this Act says –
“The officer in charge of a prison shall forthwith, after the execution of every such writ, order or warrant as aforesaid other than a warrant of commitment for trial or after the discharge of the person committed thereby, return such writ, order of warrant to the court by which the same was issued or made, together with a certificate, endorsed thereon and signed by him, showing how the same has been executed, or why the person committed thereby has been discharged from custody before the execution thereof. The abovesaid two sections clearly establish the function of the court and the powers of the officers of the prison who have to carry out the order of imprisonment and direction in respect thereof pertaining to the punishment of the prisoners.
18. The Prisons Act IX of 1894 provides fro framing of rules for the regulation of prisoners and also deals with the powers of the jail authorities. Chapter V of the Act deals with discipline of prisoners. Section 28, coming under Chapter V says –
“Subject to the requirements of the last foregoing section, convicted criminal prisoners may be confined either in association or individually in cells or partly in one way and partly in the other”. Section 30(1) says –
“Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the jailer, and all articles shall be taken from him which the jailer deems it dangerous or inexpedient to leave in his possession.” Section 30(2) says –
“Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard.”
19. Touching S. 30 of the Prisons Act, we have an elaborate discussion about rights available to prisoners in the decision reported in Sunil Batra v. Delhi Administration . That decision deals with two petitions filed under Ar. 32 of the Constitution by two internees confined in Tihar Central jail, challenging the vires of Ss. 30 and 56 of the Prisons Act. Sunil Batra, a convict under sentence of death, challenges his solitary confinement sought to be supported by the provisions of Section 30 of the Prisons Act, Charles Sobraj, a french national an then an undertrial prisoner, challenges the action of the Superintendent of Jail putting him into bar fetters for an unusually long period commencing from the date of incarceration on 6th July 1976 till the Supreme Court intervened by an interim order on 24-2-1978.
20. Regarding the right of prisoners to invoke the fundamental rights enshrined in the Constitution, Desai J. in this decision, has observed (at p. 1793 of Cri LJ) :-
“It is no more open to debate that convicts are not wholly denuded of their fundamental rights. However, a prisoner’s liberty is in the very nature of things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for a crime does not reduce the person into a non-person whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards.”
21. The Supreme Court further examining the Prisoners Act which came into force prior to the enactment of our Indian Constitution, observed (at p. 1793 of Cri LJ) –
“While examining the challenge the court must, consciously and deliberately focus its attention to one fundamental fact that it is required to examine the validity of a pre-Constitution statute in the context of the modern reformist theory of punishment, jail being treated as a correctional institution. But the necessary concomitants of the fact of incarceration, the security of the prison and safety of the prisoner are to be kept in the forefront. Not that the Court would ever abdicate its constitutional responsibility to delineate and protect the fundamental rights but it must simultaneously put in balance the twin objects underlying punitive or preventive incarceration. The court need not adopt a ‘hands off’ attitude as has been occasionally done by federal courts in the United States in regard to the problem of prison administration. It is all the more so because a convict is in prison under the order and direction of the Court. The Court has therefore to strike a just balance between the dehumanising prison atmosphere and the preservation of internal order and discipline, in maintenance of institutional security against escape, and the rehabilitation of the prisoners.”
22. In this Supreme Court judgment, Krishna Iyer J. interpreting Section 30(2) of the Prisons Act, stated (at p. 1767 of Cri LJ) :-
“Apart from all other prisoners” used in S. 30(2), is also a phrase of flexible import. ‘Apart’ has the sense of ‘To on side, aside, …. apart from each other, separately in action or function’ (Shorter Oxford English Dictionary). Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there are a plurality of inmates the death sentence will have to be kept separated from the rest in the same cell but not too close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the condemned prisoner. Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed functionally, the separation is authorised, not obligated. That is to say, if discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above. ‘Shall’ means, in this disciplinary context, ‘shall be liable to’. If the condemned prisoner is docile and needs the attention of fellow-prisoners nothing forbids the jailor from giving him that facility.”
23. After so observing Krishna Iyer J. has finally stated as regard S. 30(2) as follows (at p. 1768 of Cri LJ) –
“This study clearly reveals that solitary confinement as a sentence under the Penal Code is the severest. Less severe is cellular confinement under S. 46(10) of the Prisons Act and under S. 46(8). Obviously, disciplinary needs of keeping apart a prisoner do not involve any harsh element of punishment at all. We cannot, therefore, accede to any argument which will upset the scheme or subvert the scale of severity. Section 30(2) understood in the correct setting, plainly excludes any trace of severity and merely provides for a protective distance being maintained between the prisoner under death sentence and the other prisoners, although they are accommodated in the same cell and are allowed to communicate with each other, eat together see each other and for all other practical purposes continue community life.”
24. Krishna Iyer, J. further states :
“To argue that it is not solitary confinement since visitors are allowed, doctors and officials come and a guard stands by, is not to take it out of the category … The crux of the matter is communication with other prisoners in full view.”
25. Krishna Iyer, J. further observes (at p. 1791 of Cri LJ) –
“I hold that even though Section 30 is intra vires, Batra shall not be kept under constant guard in a cell, all by himself, unless he seeks such an exclusive and lonely life. If he loses all along the way right to the summit court and the top executive, then and only the, shall he be kept apart from the other prisoners under the constant vigil of an armed guard. Of course, if proven grounds warrant disciplinary segregation, it is permissible, given fair hearing and review.”
26. Finally, the learned Judge says –
“Until current prison pathology is cured and prison justice restored, stone walls and iron bars will not solve the crime crisis confronting society today”.
27. Section 45 which occurs in Chapter XI of the Prisons Act deals with punishment for offences mentioned in S. 45, Section 46(8) speaks of punishment by ‘separate confinement’ and reads –
“Separate confinement for any period not exceeding three months”.
Explanation – Separate confinement means such confinement with or without labor as secludes a prisoner from communication with but not form sight of, other prisoners, and allows him not less than one hours exercise per diem and to have his meals in association with one or more other prisoners.”
Section 46(10) deals with ‘cellular confinement’ as a mode of punishment for an offence under S. 45, S. 46(10) reads –
“Cellular confinement for any period not exceeding fourteen days : Provided that after each period of cellular confinement an interval of not less duration than such period must elapse before the prisoner is again sentenced to cellular of solitary confinement;”
Explanation – Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners”.
28, Section 73, of the Indian Penal Code defines – ‘solitary confinement’. It reads –
“Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say –
A time not exceeding one month if the term of imprisonment shall not exceed six months;
A time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year;
A time not exceeding three months if the term of imprisonment shall exceed one year.”
29. Section 74, I.P.C. reads as follows –
“In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the period of solitary confinement of not less duration than such period.”
30. From the above narration, it is clear that ‘solitary confinement’ is the severest sting and is awardable only by the court. ‘Separate confinement’ envisaged under S. 46(8) of the Prisons Act is of less severity than ‘solitary confinement’ and allows one hour’s exercise per diem and to have meals in association with one or more other prisoners. ‘Cellular confinement’ contemplated under Section 46(10) is somewhat more strict than ‘separate confinement’ and in relation to this confinement there is no provision for allowing the prisoner to have one hour’s exercise and also to have his meals in association with one or more other prisoners. Both these ‘separate confinement’ and ‘cellular confinement’ are punishments contemplated under S. 46 for offences committed under S. 45 of the Prisons Act, and the Superintendent of the Prison is invested with the power of awarding such punishment.
31. Section 59 of the Prisons Act empowers the State Government to make rules consistent with the Act. By virtue of the powers conferred under S. 59, the State Government has enacted rules for various sections in the Prison Act. Chapter XVI of the Jail Manual (the Madras Prison and Reformatory Manual) deals with classification and separation of prisoners. The rules under this Chapter of classification and separation of prisoners are made to regulate and enforce Section 27 of the Prisons Act. Five modes of separation of prisoners are enumerated, and it is stated that subject to these requirements, under Section 28 convicted criminal prisoners may be confined either in association or individually in cells, or party in one way and party in the other. Rule 212 deals with separation of convicts, and it reads –
“All convicts shall, as far as the requirements of labour and the cell accommodation of the jail will allow, be kept separate from each other both by day and by night.”
Under Rule 213, it is stated –
“Whenever, in any jail, all the cells are not occupied by prisoners undergoing separate, or cellular confinement as a jail punishment or solitary confinement on warrant, or by prisoners under sentence of death, lunatic or lepers, the vacant cells shall ordinarily be occupied in the following order, namely –
(a) by juveniles, if there are juveniles in the jails and there are not sufficient means of separating them by night in the juvenile ward;
(b) by approvers whom, under the orders of a Court, or in the opinion of the Superintendent it is desirable to keep apart;
(c) by prisoners of any class who, in the opinion of the Superintendent, are of a bad or desparate character or who have escaped or attempted to escape from lawful custody or whom it is considered desirable for any other reason to keep apart from others;
(d) by prisoners convicted under Sections 376 or 377, I.P.C.;
(e) by prisoners of the habitual class; and
(f) by other prisoners.
Note : (1) Separation under this rule is distinct from cellular and separate confinement, and as it is a disciplinary measure only and not a punishment, it is to have irksome conditions attached to it, other than such as are necessary to secure the ends in view.
(2) The age of the prisoners for the purposes of their segregation and treatment under the Prisons Act should be fixed by the Medical Officer of the jail.”
32. Mr. Krishnamurthi, the learned Advocate General, drew support from Rules 212 and 213 quoted above, for keeping the petitioners in separate cells and stated that such type of keeping in separate cells is only segregation for maintaining the discipline within the prison and will not amount to ‘solitary confinement’ or ‘cellular confinement’ or ‘separate confinement’. These rules, as we have seen, have been framed under S. 27 of the Prisons Act which deals with discipline of prisoners.
33. Mr. K. V. Sankaran and Mr. N. T. Vanamamalai, arguing on behalf of the petitioners, condemned the practice of putting the petitioners in separate cells and giving them a treatment different from that given to other convict prisoners. This is due to the classification, according to the learned counsel appearing for the petitioners, that these petitioners are ‘nexalites’ or ‘extremists’ or ‘dangerous elements’. There cannot be any classification as ‘nexalites’ and once a person has been convicted and sentenced by a Court for a specific offence, he cannot be further classified as a ‘nexalite’ subsequent to his conviction. The learned counsel further submitted that putting them in separate cells and restricting their movements amount to ‘solitary confinement’ and incidentally another punishment is being given by the jail authorities to the petitioners over and above the punishment awarded to them by Courts of law. Such type of solitary confinement, according to the learned counsel, can be imposed only by a court of law as provided under Sections 73 and 74, I.P.C., and any violation on the part of the jail authorities in properly executing the warrant of commitment issued by the Courts as regards the punishment, has to be corrected by the High Court, Mr. Sankaran further stated that the treatment meted out to the petitioners amounts to imposition of penalties within the meaning of Chapter XI of the Prisons Act and they are repugnant to the Rules framed under Section 59 of the Prisons Act and found in Part II of the Jail Manual. According to the learned counsel, in a field which is completely covered by astute executive instructions have no place. To classify these petitioners as ‘nexalites’, and as a class, cannot be done. Further, classification of prisoners as extremists or dangerous to society is not warranted by any rule or regulation. There is no intelligible differential which distinguishes persons grouped together from persons left out of the group. Further, this differentia does not have any rational relation with the object sought to be achieved. As such, counsel states that such classification offends Art. 14 of the Constitution. It has been further alleged by Mr. Sankaran that the Prisons Code and the Prisons Act are a complete Code and any action must be in conformity with the sections and rules framed thereunder and that the authorities cannot under the guise of discipline and security measures, accord punishment to the petitioners. Mr. Sankaran said that the present treatment, such as, putting the petitioners in separate cells and locking them up during the day time also, amounts to ‘solitary confinement’ and as such, punishment is being given to them. The learned counsel after reading Rule 261 of the of the Jail Manual stated that a prisoner cannot be put into a cell during day time. Reading Rules 212 and 213(c), Mr. Sankaran submitted that even segregation is not warranted, and ‘any other reason’ occurring in Rule 213(c) has to be read in relation to ‘bad or desperate character or who have escaped or attempted to escape’ Mr. N. T. Vanamamalai, the learned counsel further added that it is on the subjective satisfaction of the Superintendent of the prison, he has to decide the course of action and not on any direction from external bodies, such as the Q branch Police or the Govt. by their orders and instructions. Mr. Vanamamalai learned counsel submitted that it is nobody’s case that the petitioners committed any offence as contemplated under Section 45 of the Prisons Act. Hence, to accord punishment by putting them in separate cells amounts to double punishment and as such it offends Article 20(2) of the Constitution of India. Mr. Vanamamalai reading Rule 212 of the Jail Manual stated that it cannot be read as if every prisoner can be kept in a separate cell both day night. This will amount to ‘solitary confinement and if so it has to be struck down in view of the decision in Sunil Batra v. Delhi Administration, . The learned counsel submitted that this rule has to be read as one giving direction to keep a particular class of the persons together in a cell and cannot given power to jail authorities to keep a prisoner in a separate cell during day and night. The learned counsel reading Rule 213(c) which reads –
“213. Whenever, in any jail, all the cells are not occupied by prisoners undergoing separate, or cellular confinement as a jail punishment or solitary confinement on warrant, or by prisoners under sentence of death, lunatics or lepers, the vacant cells shall ordinarily be occupied in the following order namely – ……..
(c) by prisoners of any class who, in the opinion of the Superintendent, are of a bad or desperate character or who have escaped or attempted to escape from lawful custody or whom it is considered desirable for any other reason to keep apart from others.”
stated that ‘any other reason’ occurring in this rule must relate to prisoners who are bad or desperate in character or who have escaped or attempted to escape from lawful custody. Hence, unless the Superintendent of the Jail subjectively satisfied himself with regard to the objective objects regarding the prisoners, the prisoner cannot be segregated.
34. Mr. Krishnamurthi, learned Advocate General, distinguishing ‘solitary confinement’ ‘separate confinement’ and ‘cellular confinement’ stated that keeping a prisoner in a separate cell, on the facts and circumstances of the present case, is only segregating the particular prisoner and it would not amount to any punishment’. Rules 212 and 213 of the Jail Manual give ample powers to the jail authorities to keep a prisoner in a separate cell during day and night. According to the learned Advocate General, the petitioners herein are allowed to remain outside the cell for five and half hours during day time; they are allowed to hear radios and witness cinema and as such the treatment meted out by the jail authorities to these petitioners cannot be termed as any ‘punishment’. The petitioners who have the philosophy of class annihilation and committing murders or attempting to commit murders in order to eradicate the so-called landlords and capitalists, have to be kept separately or otherwise they will indoctrinate their philosophy to the other prisoners in the jail. The learned Advocate General further stated that the petitioners are treated as nexalites only in view of the serious nature of the offences in which they were involved and their adherence to the policy of violence, misbehaviour, indiscipline and annihilation of class enemies. So certain prisoners mentioned in the affidavit have been treated as nexalite prisoners in view of their activities. The learned Advocate General added that such special treatment is given to the petitioners because of their dangerous attitude. Mr. Krishnamurthi, learned Advocate General, relied upon Section 28 of the Prisons Act which reads –
“Subject to the requirements of the last foregoing section convicted criminal prisoners may be confined either in association or individually in cells or partly in one way and partly in the other.” This section read along with Rule 213 of the Jail Manual gives ample powers to the Superintendent of the Jail to keep a particular prisoner in a separate cell. No doubt, the same should not amount to solitary, cellular or separate confinement. As long as Section 28 of the Prisons Act and R. 213 of the Jail Manual are there without being quashed, it is futile on the part of the petitioners to contend that they should not be put in separate cells. It is only through the established procedure and law the petitioners have bene put in separate cells. Even Section 30(2) of the Prisons Act was not struck down in Sunil Batra v. Delhi Administration, , which we have extracted in paragraphs supra. But, on the other hand, the learned Judges of the Supreme Court have interpreted the same and held that the same is valid. Refuting the argument that Rule 213(c) of the Jail Manual will come into play only when there is vacancy in cell, the learned Advocate General submitted that in the light of S. 28 of the Prisons Act, and R. 212 of the Jail Manual, the Superintendent of the Jail has ample power to keep any prisoner in a separate cell. As a matter of fact, the learned Advocate General submitted there are vacancies of cells in the Central Prisons of Coimbatore and Vellore. The learned Advocate General once again reiterated that the powers under which the jail authorities acted in respect of these prisoners are dehors the Government Orders and Circulars and they derive the powers only from the Prisons Act and the Jail Manual.
35. By way of reply, Mr. Vanamamalai, criticised the argument of the Advocate General stating that the affidavits filed by the Government clearly spell out that the actions taken by the Jail authorities are by virtue of the Government Orders and circulars and hence it would not lie in the mouth of the Advocate General to state that the authorities have used the powers under the Prisons Act and the Jail Manual for giving treatment as alleged by the petitioners.
36. Chapter XXVII of the Jail Manual deals with interviews and communications with prisoners. These rules are framed on the strength of Sections 40 and 41 of the Prisons Act, The main objection raised by the petitioners is that the letters addressed to and by them are censored and their interviews monitored by the Q branch police. When we expressed our surprise as to how the police has a hand in respect of the jail life of convicts, the learned Advocate General immediately conceded that such interference by the Q branch of any other police will not be there and the jail authorities will strictly follow the provisions contained in Ch. XXVII of the jail Manual in the matter of communications and interviews with the petitioners. The petitioners also through their counsel represented that they will be satisfied if such procedure, as promised by the Advocate General, is followed and the Q branch police or any other police is kept away from jail administration. In view of the assurance given by the Advocate General, we do not think any direction is needed in this regard. This disposes of the prayer regarding censoring of the mail and monitoring the interviews.
37. The prayers of the petitioners such as to allow them to play games and to have entertainments like cinema also to utilise in full the educational facilities available in jail can now be disposed of. In this connection we find from the report of the Chief Judicial Magistrate, Coimbatore, dated 23-4-1980, whom we directed to give a report as regards some of the petitioners herein who are undergoing imprisonment at the Coimbatore Central Jail, and who has inspected the cells in which Krishnaswami, Gopal, Panchalingam, Valluvan, and Kumarakuppan, are kept, that the dailies ‘Dinamani’ and the ‘Hindu’ and the weeklies ‘Ananda Vikatan’ and Kalki’ are supplied to them for reading. They are also permitted to get books from the prison Library. Possession of private books is also allowed. According to the report, after reading, the private books are preserved and stored by the prison authorities in cell No. 10 and the Chief Judicial Magistrate has found a collection of more than 100 books in cell No. 10. The Chief Judicial Magistrate also found in the cells occupied by these five convicts, many books and note-books and these convicts are allowed to purchase some books out of their own funds.
38. Even in the counter-affidavit it has been specifically stated that film shows are conducted in the prisons at regular intervals, that these petitioners are permitted as far as possible to witness film shows from their cells and in other cases where such facilities are not available, they are brought to the vicinity where film show is conducted and kept at a distance having no contact with other prisoners and under special guard subject to the conditions that the Superintendent of Prisons use their discretion according to the facilities and security arrangements available in the respective prisons.
39. In view of the abovesaid statements and in the light of our discussion made below, as regards keeping the petitioners in separate cells, we do not think any further instructions are needed in this respect.
40. It has been prayed that the petitioners need not be transferred to far off jails in order to cut away the possibility of their family people visiting them, under the instructions of the police. Inasmuch as the learned Advocate General has submitted that the instructions of the Q branch police or any other police will not be taken into account by the jail authorities, we do not think it necessary to give any direction in this respect also. Suffice it to say, the Jail authorities will use their discretion and act according to the exigencies without in any way affecting the usual and ordinary facilities accorded to the prisoners in respect of keeping them in jails nearer home.
41. Then the prayer regarding lockup survives for our consideration.
42. In Sunil Batra v. Delhi Administration, , Krishna Iyer, J. has stated (at p. 1113 of Cri LJ) :-
“… no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him – to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self expression, to acquire skills and technics and all other fundamental rights tailored to the limitations of imprisonment.”
43. In another place, the learned Judge states (at p. 1114 of Cri L.J.) –
“Inflictions may take many 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 relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wiser 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 Article 19 if it is irremediable and unappealable, and unfair, under Article 21 if it violates natural justice. 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 superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for the at purpose.”
44. The learned Judge, after elucidating the correctional methods that have to be adopted by the authorities concerned without imposing punishments on the persons concerned, observed –
“Rehabilitation is a prized purpose of prison ‘hospitalisation.’ A criminal must 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 enlightened habilitative procedures.
After so observing, Krishna Iyer, J. states (at p. 1122 of Cri.L.J.) –
“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.”
The judgment has further directed –
“Not solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action.”
45. From the above Supreme Court decisions which we have noticed, the following observations of the Supreme Court are worth repeating for our present purpose –
“…. But the necessary concomitants of the fact of incarceration, the security of the prison and safety of the prisoner are to be kept in the forefront. Not that the Court would ever abdicate its constitutional responsibility to delineate and protect the fundamental rights but it must simultaneously put in balance the twin objects underlying punitive or preventive incarceration …. It is all the more so because a convict is in prison under the order and direction of the court. The court has, therefore, to strike a just balance between the dehumanising prison atmosphere and the preservation of internal order and discipline, due maintenance of institutional security against escape, and the rehabilitation of the prisoners”. ……. If discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell …… The prison system shall not except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation”.
46. In this background we can now examine as to the validity of putting the petitioners in separate cells day and night and as to whether such confinement is being made all the 24 hours.
47. The second respondent, on behalf of the other respondents also filed the first counter-affidavit dated 20-3-1980. In this counter-affidavit, certain Government orders and instructions are referred to and in pursuance thereof the jail authorities are stated to have taken some precautionary methods of maintaining discipline and security within the jail premises. No doubt in this counter-affidavit, the petitioners are taken as a nexalites’ though it is true there is absolutely no organisation called ‘nexalites’ and the members of the Communist Party either belong to Communist Party of India, or Communist Party of Marxist or Communist Party of Marxists and Leninist. There cannot be any separate classification as ‘nexalites.’ Nevertheless, the jail authorities on the instructions from the Government thought it fit to keep these petitioners in separate cells in order to prevent them from indoctrinating the other prisoners. It has been averred in this counter-affidavit that these petitioners are allowed to go out of their cells during day time for strolling and doing exercise for one hour daily within their enclosures. Apart from this, they are also taken out of the cells at the time of ablution etc., lunch and evening meals. There is also an averment in this counter-affidavit that one of the petitioners herein attempted to break the jail and escape from the Central Jail, Tiruchirapalli. Finally, this counter-affidavit states that the petitioners-prisoners are treated as nexalites only in view of the serious nature of the offences in which they were involved and their adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies. Hence certain prisoners mentioned in the affidavit have been treated as nexalite prisoners in view of their activities. It has been further averred in this counter-affidavit that the special treatment is being given to the petitioners because of the dangerous attitude and in view of their activities as set out above. In the common additional counter-affidavit dated 15-4-1980, filed by the Deputy Secretary to the Government Home department Government of Tamil Nadu, it has been averred in paragraph 4 that these petitioners are separately confined mainly on the security point of view and administrative reasons so that they should not indoctrinate non-nexalite prisoners. It has been further stated that the very purpose of keeping them separately is that they should not be allowed to move with each other, as otherwise they will conspire or execute plans for jail outbreak, escape etc. If they are allowed to move with each other, the prison authorities cannot prevent them from escaping or planning etc., whatever may be the strength of warder guard. In the further counter-affidavit filed on 8-8-1980 the second respondent, on behalf of the other respondents also, has stated that the petitioners are kept in separate cells in order to prevent them from indoctrinating the other prisoners. In this counter-affidavit, it has been further averred that convict No. 5150 Vythian alias Kaliaperumal, now confined in Central Prison, Vellore, attempted to escape from the Central Prison, Tiruchirapalli, on the night of 20/21-4-1979, along with four other naxalites. Hence a case was registered against him and he was sent to Court in several occasions in connection with the case. It has been specifically denied in this counter-affidavit that prisoners cannot see anybody from the cells in which they have been put in. This counter-affidavit again reiterates that in view of the petitioners’ adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies the incoming and outgoing letters of the naxalites prisoners are censored by the Q branch police.
48. In the common reply affidavit filed on behalf of all the petitioners, the petitioners challenged the respondents to substantiate the allegations of violence, misbehaviour and indiscipline and annihilation of class enemies and stated that that it is nothing but character assassination. In paragraph 13 of the common reply affidavit, the petitioners have stated as follows –
“As for annihilation of class enemies, let the respondents state which petitioner annihilated which class enemy after coming to jail ? If it is contended that the petitioners can be treated as naxalites for their alleged involvement and conviction of murder, which is a case of annihilation of class enemy ? The following question arises – Can those landlords and their henchmen who are convicted of murdering farm workers i.e., annihilating their class enemies be treated as naxalites i.e. kept in solitary confinement and subjected to supervision of interviews and censorship of letters by the Q branch ? Moreover, if annihilation of class enemies is to be proved, through conviction of the petitioners for murder, it is pointed out that petitioners in W.Ps. 771 and 773 of 1980 have not been convicted of murder and therefore they cannot be charged with annihilation of class enemies. But they are also treated as naxalites. Annihilation of class enemies is not the sole preserve of the naxalites. In the Tiruchi Central jail there are quite a few convicts belonging to the Communist party of India and the Communist party of India (Marxist) who have been convicted of murdering landlords or their henchmen. But these petitioners are not treated as naxalites.”
49. Reading all these averments in the affidavits, counter-affidavits and reply affidavit filed by the respective parties, it is clear that even apart from the Government Orders and instructions, the jail authorities are themselves aware that one of the petitioners herein attempted to escape from the Central Jail, Tiruchirapalli, on the night of 20/21-4-1979 along with four other naxalites and that the jail authorities taking into consideration the serious nature of the offence in which these petitioners are involved and their adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies, put the petitioners in separate cells just for maintenance of discipline and by way of security measures inside the jail.
50. The nomenclature such as “naxalites’ given to these petitioners will not in any way affect the subjective satisfaction formed by the jail authorities for putting them in separate cells. The learned Advocate General who has supported the action of the jail authorities independent of the Government Orders and instructions referred to in the first counter-affidavit, stated that these powers flow from the Prison Act and Jail Manual, there is no need to rely upon the Govt. Orders and circulars. As regards the averments which we have referred to above in the counter-affidavits, the learned Advocate General pointed out that it is only in the interests of the jail administration and also to maintain tight security and discipline inside the prisons, the Superintendent of these prisons satisfied themselves subjectively for putting these petitioners in separate cells.
51. In our view, even though the source of power has been wrongly traced by the respondents in the counter-affidavit, if they have that power from out of the Prisons Act and the Jail Manual, there is no difficulty in upholding the treatment given to the petitioners, provided that it does not offend any of the basic rights of the petitioners herein. We are also aware that the jail authorities under the guise of discipline and security measures, cannot impose punishment on the petitioners which they can otherwise do only if they find that certain offences have been committed as enumerated under Section 45 of the Prisons Act by the prisoners concerned inside the jail premises.
52. In these writ petitions, apart from other things, the basic thing that was agitated was putting the petitioners in separate cells. In the counter-affidavit filed by one Venugopal dated 21-4-1980 it has been specifically stated that the petitioners are allowed for ablution, morning meals etc., from 6 a.m. to 7-30 a.m., for midday meals from 12 noon to 1-30 p.m. and for evening meals from 4-30 p.m. to 6 p.m. Apart from this, each prisoner is allowed to remain outside the cell for one hour for strolling and doing exercises. Thus, according to the respondents, during daytime, the petitioners are outside their cells for five and a half hours. In the first counter-affidavit itself the second respondent has stated that the petitioners are allowed to come out of their cells during daytime for strolling and exercise for one hour daily within their enclosures. Apart from this, they are also taken out of their cells at the time of ablution etc., lunch and evening meals.
53. Even the Chief Judicial Magistrate, Coimbatore, who, at our directions, inspected the Central Jail, Coimbatore, at 3 p.m. on 21-4-1980, in which convicts Gopal, Panchalingam, Valluvan, Krishnaswami and Kumarakuppan, are kept, has reported that these prisoners are in separate cells which is block No. 10. These cells have an open verandah on the west measuring 15 ft. on the southern end and 10 ft. on the northern end. On the northern side of these cells, there is open space. In that open space there are two flushout latrines and a bath tub. All these ten cells are of equal dimensions, 8 ft. x 12 ft. According to the report of the Chief Judicial Magistrate, the cells and the verandah are kept clean and neat. The only opening is an iron door measuring 6 ft. x 2-1/2 ft. on the western side of each cell. Except this, there is no other window in the cells. There is electric light in each cell. In each cell, the Chief Judicial Magistrate, found a writing desk and writing pad, two blankets, two carpets, one bedsheet, two set of white dress, a palm leaf fan and a broom strick. The petitioners herein, according to the Chief Judicial Magistrate’s report, are allowed to take bath twice a day and they are given soap for washing clothes daily. Drinking water facility is available in each room, and mirror, comb, oil etc. are also made available to them daily. Barber is also made available to them once in a week for hair cut, shaving etc. To pass urine, a small mud pot with a lid is provided in each cell, which is cleaned twice daily by scavengers. During night, an aluminium commode is provided in each cell and that will be cleaned in the mornings. The Chief Judicial Magistrate has made a remark that convict Krishnaswami said that commode was not given on certain occasions in spite of request during daytime. It is the further report of the Chief Judicial Magistrate that the dailies ‘Dinamani,’ and the Hindu and the weeklies ‘Ananda Vikatan’ and Kalki’ are supplied to the convicted for reading and they are also permitted to get books from the prison library. Possession of private books is also allowed. The Chief Judicial Magistrate has found a collection of more than 100 books in cell No. 10. He also found in each cell occupied by these five convicts many books and note books. As regards medical facilities, the Chief judicial Magistrate has reported that prompt medical aid is being given during night and day. To give instance, the Chief Judicial Magistrate has said that convict Valluvan said that some months ago he had an attack of jaundice and after treatment he was completely cured. Convict Kumarakaruppan is said to be a chronic sinusitis patient and he is being treated properly with suitable medicines by Dr. G. Meenakshisundaram under the supervision of the medical officer Central Prison, Coimbatore. As regards movements of the convicts, the Chief Judicial Magistrate has reported that at 6 a.m. every day all the five convicts will be taken out of their respective cells and they will be allowed to be in the open space and verandah within block No. 10 till 8 a.m. During this period they can finish their morning ablutions including bath. Between 8 a.m. and 9 a.m. one of the five convict will be allowed to be out of his cell, while the other four will be locked up in their respective cells. At 9 a.m. this convict will be locked up in his cell and two other convicts will be allowed to be out of their cells between 9 a.m. and 10 a.m. At 10 a.m. these two convicts will be locked up in their respective cells, and the remaining two convicts will be allowed to be out the their cells between 10 a.m. and 11 a.m. At 11 a.m. these two convicts will be locked up in their respective cells. At 11-30 a.m. all the 5 convicts will be taken out of their cells and till 1 p.m. they will be allowed to be out of their cells. Lunch will be given to them in cell No. 9 during this time. From 1 p.m. to 4.30 p.m. all the five convicts will be locked up in their respective cells. At 4.30 p.m. all the convicts will be taken out of their cells and they allowed to be out of their cells till 6 p.m. During this period dinner will be given to them in cell No. 9. From 6 p.m. to 6 a.m. all will be locked up in their respective cells. This routine is followed daily. The Chief Judicial Magistrate has further stated that though these convicts are allowed to be out of their cells by turns as indicated above, they have to be within block No. 10. In cell No. 10, indoor games like carrom board and chess are available for the convicts. Tennikoit game is also available to them within the block. There is no net. Ring alone is given. Block No. 10 is always guarded by prison staff. According to the Chief Judicial Magistrate, the main grievance of the convicts is that there is no proper ventilation to these cells, and, therefore, they should be allowed to be out of their cells always. For each cell, sunlight and air must come only through the iron door facing west. The Chief Judicial Magistrate has also suggested the putting up of a sloping roof over the open verandah to avoid sun rays and rain. These five convicts, inspected by the Chief Judicial Magistrate, seem to have said that they are not allowed to mingle with the other inmates of the prison and they are not given certain other facilities given to the other inmates, such as cinema, free mingling with all inmates, games etc. They have also complained to the Chief Judicial Magistrate that for some months past they are not allowed to meet their relations and friends, and this is because that these convicts, refused to give a list of their close relations whom they want to meet. The chief Judicial Magistrate has remarked that no manual work is given to these convicts and that they are not reportedly willing to do any work inside the cells.
54. From the report it is seen that some of the petitioners herein who are in Coimbatore central jail are allowed to mix up with each other and they will be outside their cells for number of hours during daytime.
55. From all these factual allegations it is impossible to conclude that the petitioners have been put to either solitary confinement, or separate confinement or cellular confinement. It is not as if the petitioners are segregated and put in separate cells all the 24 house and that the jail authorities under the guise of discipline, maintenance and security measures, are trying to impose indirectly either solitary confinement, or cellular confinement or separate confinement. No doubt, the treatment given to other life convicts such as allowing them outside the cells during daytime and putting them in group in cells, is not done as far as these petitioners are concerned. Inasmuch as segregating them and putting them in separate cells, as we have noticed already, will not directly come within the purview of any of the punishments intended under the Prisons Act or amount to solitary confinement or separate confinement or cellular confinement. We are of the view that the prayer of the petitioners that they should not be put in separate cells cannot be granted on the facts and circumstances of the present case. Such keeping in separate cells is the outcome of the subjective satisfaction on objective facts formed by the Superintendent of the jails. We have already extracted the averments in the counter-affidavits from which it can be easily gathered that the Superintendent of the jails though it fit in the interests of discipline and by way of security measures to put these petitioners in separate cells. Such power to put them into separate cells, without in any way offending the basic fundamental rights of the prisoners and also without in any way inflicting the punishments contemplated under S. 46 of the Prisons Act, is available to the jail authorities as per S. 28 of the Prisons Act and also as per Rules 212 and 213 of the Jail Manual. Apart from that, from the averments in the counter-affidavits it can be easily gathered that the Superintendent of the jails thought it fit, in the interests of discipline and by way of security measures, to put the petitioners in separate cells. This is purely on the basis of jail discipline and security measures, arrived at by the Superintendents of jails concerned on their subjective satisfaction regarding the activities of these petitioners in the jail like indoctrinating the other coprisoners by preaching policy of violence and annihilation of moneyed-class and planning escape from the jail. The subjective satisfaction formed by the Superintendents of the respective jails clearly spells out the reasonableness of classifying these petitioners as a separate class and as such the said classification is not arbitrary but is based on intelligible differentia having a nexus to the object sought to be achieved and hence there is no violation of Article 14 of the Constitution of India.
56. Mr. Vanamamalai pointing out Rule 261 of the Jail Manual, stated that the cells must be locked in order to prevent re-entry of the prisoners during daytime. We do not think that this rule will prohibit the jail authorities from putting the prisoners in the cells during daytime also.
57. It is always open to the Superintendents of Jail and such of those jail authorities who are in charge of the prisoners to form a subjective satisfaction on objective facts, in the matter of lock-up, to treat such of those prisoners in a different way from the others in the interests of security and discipline. It has bene specifically averred in the counter-affidavit that one of the petitioners by name Vathiar alias Kaliaperumal has a previous history of trying to escape from the prison at Tiruchirapalli. Further, the counter-affidavit definitely mentions that the petitioners are treated as naxalites only in view of the serious nature of the offences in which they were involved and their adherence to the policy of violence, misbehaviour and indiscipline and annihilation of class enemies. This subjective satisfaction, formed on certain objective facts, made the Superintendents of the respective jail to put the petitioners in separate cells. This action, in our opinion, will not in any way affect the basic fundamental rights of any of the petitioners, nor would amount to any ‘punishment’. In such circumstances, any interference by a Court of law rill very much jeopardise the jail administration and the disciplinary and security measures inside jail. We cannot weight in strict balance the treatment accorded to every prisoner inside the jail except in cases of grave ill-treatment and deprivation of basic fundamental rights by the jail authorities. The very fact the prisoners are allowed to mix with each other and also are allowed to be outside their cells for over five and a half hours per day and also the fact that they are allowed the other facilities such as reading magazines, witnessing cinema shows etc., will show that putting these petitioners in separate cells with the abovesaid facilities, is within the powers of the jail authorities under S. 28 of the Prisons Act and also under Rules 212 and 213 of the Jail Manual.
58. Even apart from these, the learned Advocate General offered to produce the record of jails for the perusal of the Court to show as to how the jail authorities formed the subjective satisfaction for putting these petitioners in separate cells. In view of our discussions made in paragraphs supra, we do not think it necessary to go into those records. The averments in the counter-affidavits referred to in paragraphs supra clearly establish the subjective satisfaction formed by the jail authorities regarding the petitioners herein. It is not for the court to sit in judgment over such subjective satisfaction formed by the jail authorities. We have already found that such power exercised by the jail authorities is in order and will not in any way infringe the fundamental rights of the petitioners or amount to ‘punishment’ as contemplated under Section 46 of the Prisons Act; or amount to solitary, cellular or separate confinements. This finding of ours disposes of the prayer regarding lockup.
59. These cannot be two opinions regarding the powers of the Jail Superintendents for taking such measures in order to maintain the discipline and security within the jail premises. Shocking inhuman treatment, wherever it is, has to be condemned. The power of the High Court, as observed in the Supreme Court decision cited above, can easily extend to relieve such inhuman treatment and to ensure the basic fundamental rights a prisoner has to enjoy. This does not mean that the prisoners, under the guise of certain rights which cannot be considered as fundamental, can invoke the jurisdiction of this Court alleging discriminatory treatment in respect of trivial things. The facilities that are accorded and the freedom that is ensured within the precincts of the jail cannot be weighed in golden scales as between one prisoner and another. Such accord of facilities must be left to the discretion of the jail authorities who will regulate and modulate them both in the interests of discipline and also as security measure. Such restrictions and curtailment of freedom is entirely in the discretion of the jail authorities concerned and they are based on the subjective satisfaction formed by such authorities in dealing with the prisoners. However much directions are given, the basic concept of the reformation on jails and reformatory theory advanced will gain momentum and success only if the jails are filed up with such officials who basically believe in such philosophy. Only the innate desire in the minds of the authorities to reform the prisoners will give them the humanistic approach or otherwise they will be only exhibiting their authoritarian attitude with the power in their hands which ultimately would make the prisoners hardened criminals. We expect the authorities concerned to have this humanistic approach and try to reform the prisoners and the jails and make the jails homes for correcting the incorrect, for softening the hardened and for uplifting the base to the level of culture.
60. The sum up, our conclusions are –
1. The petitioners have been treated as a separate class by way of security measures taking into account their activities in the jail like indoctrinating the other co-prisoners by preaching the policy of violence and annihilation of moneyed-class and planning escape from the jail. In view of their activities inside the prison the petitioners form a class by themselves. Their separate classification is not arbitrary, but based on an intelligible differentia having a nexus to the object sought to be achieved and hence there is no violation of Art. 14 of the Constitution of India.
2. The Superintendent of Prisons, taking into account the facilities and security arrangements available in prisons, used his discretion and segregated the petitioners and put them in a separate block having single cells. The need for segregating the prisoners and putting them in separate cells with restrictions was the result of the subjective satisfaction of the jail Superintendent reached in an objective manner.
3. Section 28 of the Prisons Act and Rules 212 and 213 of the Jail Manual empower the jail Superintendents to segregate the convicted prisoners and keep them in separate cells and restrict their movements for the purpose of maintaining discipline within the prison. Such disciplinary segregation taken by the jail Superintendent in exercise of powers conferred under Rule 213-C for the preservation of internal order and discipline in maintenance of institutional security, cannot be characterised as solitary confinement as contemplated under Section 73 of the Indian Penal Code, nor can it be characterised as cellular confinement or separate confinement which are intended as punishment for prison offences under Ss. 46(8) and 46(10) of the Prison Act. The segregation and restricted movements of the petitioners within the prison in necessitated by the requirement of discipline and security and such an abridgement or limited deprivation of rights of the petitioners within the prison campus is a ‘statutory’ confinement under the authority of Section 28 of the Prisons Act and Rules 212 and 213 of the Jail Manual and as the curtailment has the backing of law and the procedure prescribed under law, their is no violation of Art. 21 of the Constitution of India.
4. From the report of the Chief Judicial Magistrate, Coimbatore, and the counter-affidavit filed by the second respondent, it is seen that the petitioners, though they are segregated and put in separate cells, the sight and sound of other co-prisoners have not been excluded and they are permitted to take food in the company of other prisoners. The duration of their stay outside the cells in which they are confined, is stated to be five and a half hours. Such a segregation cannot, therefore, fall within the ambit of solitary confinement, separate confinement or cellular confinement. The petitioners are put in separate cells without in any way affective their tailored truncated fundamental rights available to convicted prisoners and without in any way inflicting the solitary out in any way inflicting the solitary confinement provided under S. 73, I.P.C. or imposing punishment contemplated under Sections 46(8) and 46(10) of the Prisons Act.
5. The security of the prison and safety of the prisoners are to be kept in the forefront. The Court has a paramount obligation to product the rights of the convicted prisoners and to ensure that no inhuman or debasing treatment is meted out to them under the garb of enforcing internal order and discipline in jail. At the same time, the prison authorities’ discretion in segregating the convicted prisoners as a measure of preserving internal order and discipline in jails cannot also be lightly interfered with. As there is justifiable segregation of the petitioners for the maintenance of discipline in jails and institutional security, and as the alleged deprivation or abridgment or infraction of the rights of the convicted prisoners is in accordance with the Prisons Act and the rules framed thereunder, there is is no need or scope for exercise of the extraordinary powers conferred under the writ jurisdiction under Art. 226 of the Constitution of India.
6. Though the action of the jail authorities is traced to Government Orders and instructions in the counter-affidavits filed, the learned Advocate General has succeeded in showing that the action taken by the jail authorities is in conformity with the Prisons Act and the rules framed thereunder and, in this view, the question of considering the validity of the Government Orders and directions, does not arise for consideration.
7. In view of the undertaking given by the Advocate General regarding the interview and correspondence in relation to the petitioners and also regarding the elimination of interference by the Q branch or any other branch of the Police in jail administration with reference to these petitioners no further orders or directions are necessary from the Court in regard to these matters.
In the result, all the writ petitions are dismissed. No costs. Mr. K. V. Sankaran suggests that in view of the report made by the Chief Judicial Magistrate, with regard to the conditions in the Central Jail at Coimbatore, the authorities may be directed to take such steps as to implement the putting up of roofing in order to prevent the rain and sunlight entering into the cell. The authorities concerned are directed to take such steps as they deem fit to implement the suggestion for putting up covering in front of the cells wherein some of these petitioners are locked up. After the order was pronounced in open court, Mr. Sankaran learned counsel makes in oral application under Article 134-A on behalf of the petitioners for whom he appears and also for the petitioners represented by the other counsel, to give a certificate under Art. 134(1)(c) of the Constitution that the case is a fit one for appeal to Supreme Court. Mr. Sankaran submits that the petitioners are put under lock up even during daytime and as such they are not treated on par with other convicted prisoners and such treatment clearly contravenes Art. 14 of the Constitution. Learned counsel further states that the locking up of petitioners even during daytime is a new punishment given by the jail authorities, and as such, it offends Art. 21 of the Constitution.
We have elaborately discussed this aspect of the case and have held that the jail authorities, in the interest of jail discipline only, segregated some of the petitioners and put them in separate cells, and restrict their movements in the interests of institutional security and safety. We have also drawn support for such treatment from the decision of the Supreme Court, reported in Sunil Batra v. Delhi Administration, and also from Section 28 of the Prisons Act and Rules 212 and 213 framed under the Prisons Act while interpreting the provisions of the Prisons Act and the rules framed thereunder, we have merely followed the decision of the Supreme Court referred to supra. As there has been no fresh or new enunciation on any question of law or principle of law in deciding the issues involved in all these writ petitions, we are of opinion that this is not a fit case for grant of certificate under Art. 134(1)(c) of the Constitution of India.
Each of the petitioners will be entitled to a free copy of the judgment rendered in W.J. 4623 of 1979 and 766 of 773 of 1980 and also the order on the oral application made under Art. 134-A of the Constitution of India.
61. Petitions dismissed.