{"id":152155,"date":"1978-08-30T00:00:00","date_gmt":"1978-08-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunil-batra-etc-vs-delhi-administration-and-ors-etc-on-30-august-1978"},"modified":"2018-09-23T16:05:14","modified_gmt":"2018-09-23T10:35:14","slug":"sunil-batra-etc-vs-delhi-administration-and-ors-etc-on-30-august-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunil-batra-etc-vs-delhi-administration-and-ors-etc-on-30-august-1978","title":{"rendered":"Sunil Batra Etc vs Delhi Administration And Ors. Etc on 30 August, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sunil Batra Etc vs Delhi Administration And Ors. Etc on 30 August, 1978<\/div>\n
Equivalent citations: 1978 AIR 1675, \t\t 1979 SCR (1) 392<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Chandrachud, Y.V. (Cj), Krishnaiyer, V.R., Fazalali, Syed Murtaza, Shingal, P.N., Desai, D.A.<\/div>\n
           PETITIONER:\nSUNIL BATRA ETC.\n\n\tVs.\n\nRESPONDENT:\nDELHI ADMINISTRATION AND ORS. ETC.\n\nDATE OF JUDGMENT30\/08\/1978\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nCHANDRACHUD, Y.V. ((CJ)\nFAZALALI, SYED MURTAZA\nSHINGAL, P.N.\nDESAI, D.A.\n\nCITATION:\n 1978 AIR 1675\t\t  1979 SCR  (1) 392\n 1978 SCC  (4) 494\n CITATOR INFO :\n RF\t    1979 SC 916\t (82)\n E\t    1980 SC 249\t (4)\n R\t    1980 SC 470\t (10)\n F\t    1980 SC1535\t (2,11,20,21,23,30,38)\n REL\t    1980 SC1579\t (3)\n RF\t    1980 SC1789\t (112)\n RF\t    1980 SC2147\t (51)\n R\t    1981 SC 625\t (2,4,7,8,10,11,12,14)\n RF\t    1981 SC 746\t (3,4,6)\n R\t    1981 SC 939\t (3)\n R\t    1981 SC1767\t (11,22)\n MV\t    1982 SC1325\t (75)\n F\t    1982 SC1413\t (45)\n R\t    1983 SC 361\t ((2)1,12,14,17)\n RF\t    1983 SC 465\t (3,5,12,16,17)\n R\t    1983 SC 473\t (6)\n RF\t    1985 SC 231\t (2,3)\n R\t    1986 SC 180\t (39)\n F\t    1989 SC1375\t (20,71)\n RF\t    1991 SC 101\t (30,70,115,227,278)\n RF\t    1991 SC 345\t (6)\n RF\t    1991 SC2176\t (39)\n\n\nACT:\n     Prisons   Act    1894-Section   30-Scope\t of-Solitary\nconfinement-Imposition of  bar-fetters under.  s.  56  on  a\nprisoner-Whether  violates   Articles  14,  19,\t 21  of\t the\nConstitution 1950.\n     Practice  and  Procedure-Necessity\t of  social  welfare\norganisation to intervene in the litigative process.\n     Prisons  Act  1894\t and  Punjab  Jail  Manual-Need\t for\nrevision to  reflect the  deeper meaning  in the behavioural\nnorms correctional attitudes and luimane orientation for the\nprison staff and prisoners alike.\n     Words & Phrases-Under sentence of Death and 'apart from\nall other prisoner's-Meaning of\n\n\n\nHEADNOTE:\n     Section 30(2)  of the  Prisons Act\t provides that every\nprisoner under sentence of death shall be confined in a cell\napart from  all other  prisoners and  shall be placed by day\nand by night under the charge of a guard.\n     The petitioner  in W.P.  No. 2202\tof 1977\t who  was  a\nconvict under  sentence of  death  challenged  his  solitary\nconfinement. It\t was contended\ton his\tbehalf that s. 30(2)\ndoes not  authorise placing  a prisoner\t under\tsentence  of\ndeath in  solitary confinement\tand that  the jail authority\ncould not  arrogate to\titself\tthe  power  to\timpose\tsuch\npunishment under  the garb  of giving effect to s. 30(2). On\nthe other  hand it was contended on behalf of the State that\nthe section  merely permits statutory segregation for safety\nof the\tprisoner in  the prisoner's  own interest  and\tthat\ninstead of  striking down  the provision,  the Court  should\nadopt a\t course of  so reading down the section as to denude\nit of its ugly inhuman\tfeatures.\n     The petitioner in W.P. 565 of 1977 contended that s. 56\nof the\tPrisons Act which confers unguided, uncanalised, and\narbitrary powers on the Superintendent to confine a prisoner\nin irons is ultra vires Arts. 14 and 21 of the Constitution.\n     Dismissing the petitions.\n^\n     HELD: (per\t Chandradchud C.J.  Fazal Ali,\tShinghal and\nDesai, JJ.).\n     1. Section\t 30(2) does not empower the prison authority\nto  impose   solitary  confinement  upon  a  prisoner  under\nsentence of  death. Even  jail discipline  inhibits solitary\nconfinement as a measure of jail punishment. [499H]\n     2. It  has been  well established that convicts are not\nby  mere  reason  of  the  conviction  denuded\tof  all\t the\nfundamental rights which they otherwise possess. For example\na man of profession who is convicted would stand stripped of\nhis right  to  hold  consultations  while  serving  out\t his\nsentence; but  the Constitution\t guarantees  other  freedoms\nlike the  right to acquire, hold and dispose of property for\nthe exercise  of which\tincarceration can  be no impediment.\nLikewise even\n393\na convict  is entitled\tto the\tprecious right guaranteed by\nArt. 21\t that he  shall not  be\t deprived  of  his  life  or\npersonal  liberty   except  according\tto   the   procedure\nestablished by law. [495G-H]\n     Procunier v.  Martiney 40\tL. Ed. 2d. 224 at 248; Wolff\nv. Mcdonnel  41 L. Ed 409 at 501; D. Bhuvan Mohan Patnaik v.\nState of Andhra Pradesh & Ors.<\/a> [1975] 2 SCR 24 referred to.\n     3. Sections 73 and 74 of the Indian Penal Code leave no\nroom for  doubt that  solitary confinement  is by  itself  a\nsubstantive punishment\twhich can  be imposed  by a court of\nlaw. It\t cannot be  left to  the whim  and caprice of prison\nauthorities. The  limit of  solitary confinement that can be\nimposed under  Court`s order  is strictly  prescribed by the\nPenal Code. [498 B-C]\n     4. Solitary  confinement is  so revolting to the modern\nsociologist  and   law\treformer  that\tthe  Law  Commission\nrecommended that  the punishment  of solitary confinement is\nout of tune with modern thinking and should not find a place\nin the\tPenal Code  as a  punishment to\t be ordered  by\t any\ncriminal court\teven though it may be necessary as a measure\nof jail discipline. [498 F-G]\n     5. The explanation to s. 44(8) of the Prisons Act makes\nit clear  that a  person is not wholly segregated from other\nprisoners in  that he is not removed from the sight of other\nprisoners  and\t he  is\t  entitled  to\thave  his  meals  in\nassociation with  one or  more other  prisoners.  Even\tsuch\nseparate confinement cannot exceed three months. Para 847 of\nthe Punjab  Jail Manual,  if literally enforced would keep a\nprisoner totally  out of  bounds, that\tis, beyond sight and\nsound. Neither separate confinement nor cellular confinement\nof a  condemned prisoner  would be as tortuous or horrendous\nas solitary  confinement of  a condemned  prisoner.  Section\n30(2) merely  provides for  confinement of  a prisoner under\nsentence of death in a cell apart from other prisoners. Such\nconfinement can neither be cellular confinement nor separate\nconfinement  and   in  any   event  it\tcannot\tbe  solitary\nconfinement [499E-H]\n     6. A  \"prisoner under sentence of death\" in the context\nof s. 30(2) can only mean a prisoner whose sentence of death\nhas become  final, conclusive  and indefeasible which cannot\nbe annulled  or avoided\t by any\t judicial or  constitutional\nprocedure.  Till  then\ta  person  who\tis  awarded  capital\npunishment can\tbe said\t to be\ta prisoner under sentence of\ndeath. There  is an inordinate time lag between the sentence\nof death passed by the Sessions Judge and the final disposal\nof appeal  by the  High Court  or Supreme Court depending on\nthe circumstances  of each  case  or  the  rejection  of  an\napplication for\t mercy by  the President or the Governor. It\ncannot be  said that  under s. 30(2) such prisoner, from the\ntime the death sentence is awarded by the Sessions Judge has\nto be  confined to a call apart from other prisoners. [501F,\n502C, 501C, 501E]\n     7. Jail  custody is something different from custody of\na convict  suffering simple  or rigorous  imprisonment.\t The\npurpose behind\tenacting s.  366(2) of\tthe Code of Criminal\nProcedure  is  to  make\t the  prisoner\tavailable  when\t the\nsentence  is   required\t to   be  executed.  Unless  special\ncircumstances exist, even in cases where a person is kept in\na cell\tapart from other prisoners with day and night watch,\nhe must\t be within the sight an sound of other prisoners and\nbe able to take food in their company. [502 E-G]\n394\n     8. Section\t 30(2) as  interpreted is  not violative  of\nArt. 20.  When a  prisoner is  committed under a warrant for\njail custody under s. 366(2), Cr. P.C. and if he is detained\nin solitary  confinement which is a punishment prescribed by\ns. 73,\tI.P.C. it will amount to imposing punishment for the\nsame offence  more than\t once, which  would be\tviolative of\nArt. 20(2).  But as  the prisoner  is  not  to\tbe  kept  in\nsolitary confinement  and the  custody in  which he  is kept\nunder  s.   30(2)  would   prelude  detention\tin  solitary\nconfinement,  there  is\t no  chance  of\t imposing  a  second\npunishment  upon   him\tand,  therefore,  s.  30(2)  is\t not\nviolative of Art. 20. [502H; 503 A-B]\n     9. Personal  liberty of  the person who is incarcerated\nis to a great extent curtailed by plaintive detention. It is\neven curtailed in preventive detention. The liberty to move,\nmix, mingle,  talk,  share  company  with  co-prisoners,  if\nsubstantially curtailed,  would\t be  violative\tof  Art.  21\nunless the curtailment has the backing of law. Section 30(2)\nestablishes the\t procedure by  which it can be curtailed but\nit must be read subject to the interpretation placed in this\njudgment. Once\ts. 30(2) is read down, its obnoxious element\nis erased  and it  cannot be  said   that it is arbitrary or\nthat there  is deprivation  of personal\t liberty without the\nauthority of law. [504E-F] t\n     10. Classification\t according to  sentence for security\npurposes is  valid and\ttherefore s.  30(2) does not violate\nArt. 14. The restriction imposed by s. 30(2)\n is  not unreasonable.\tIt is  imposed keeping\tin view\t the\nsafety of  the prisoner and the prison security and does not\nviolate Art. 19. [505F]\n     11. There\tis no  warrant for  an implicit\t belief that\nevery  prisoner\t under\tsentence  of  death  is\t necessarily\nviolent\t or   dangerous\t requiring   his  segregation.\t The\nrationale underlying s. 30(2) is that the very nature of the\nposition and  predicament of  a prisoner  under sentence  of\ndeath leads to a certain situation\n and  present problems\tpeculiar to such persons and warrant\ntheir separate\tclassification and treatment as a measure of\njail administration  and prison discipline. It can hardly be\nquestioned that\t prisoners under  sentence of  death form  a\nseparate class\tand their  separate classification has to be\nrecognised. [505 A-C]\n     12. Section 30(2) as interpreted does not mean that the\nprisoner is  to be  completely segregated  except in extreme\ncases of  necessity which  must be specifically made out and\nthat too after he become a prisoner under sentence of death.\n[505F]\n     13. Section  56 is\t not violative\tof Arts.  14 and 21.\n[511C] The  power under\t s. 56\tcan be\texercised  only\t for\nreasons\t and   considerations  which   are  germane  to\t the\nobjective  of\tthe  statute,  viz.:  safe  custody  of\t the\nprisoner,  which   takes  in  considerations  regarding\t the\ncharacter and propensities\n of  the prisoner.  These and  similar\tconsiderations\tbear\ndirect nexus  with the safe custody of prisoners as they are\naimed\tprimarily    at\t  preventing   their   escape.\t The\ndetermination of  the necessity\t to put\t a prisoner  in\t bar\nfetters has  to be  made after\tapplication of\tmind to\t the\npeculiar and  special  characteristics\tof  each  individual\nprisoner. The nature and length of sentence or the magnitude\nof the\tcrime committed by the prisoner are not relevant for\nthe purpose of determining that question. [509A-C]\n     14. There\tare  sufficient\t guideiines  in\t s.  56.  It\ncontains a  number of  safe guards  against  misuse  of\t bar\nfetters by the Superintendent. Such circumscribed peripheral\ndiscretion with\t duty to give reasons which are revisable by\nthe higher\n395\nauthority cannot  be described\tas arbitrary  so  as  to  be\nviolative of  Art. 14.\tThe A  Superintendent  can  put\t the\nprisoner in bar fetters only after taking into consideration\nthe peculiar  and special characteristics of each individual\nprisoner. No  ordinary routine\treasons can  be\t sufficient.\nDuty to\t record reasons\t in the\t Superintendent`s journal as\nwell as\t the  prisoner`s  history  ticket  will\t narrow\t the\ndiscretionary power  conferred on  him. The  reasons must be\nrecorded in  the language intelligible and understandable by\nthe prisoner.  A further  obligation  is  that\tthe  fetters\nimposed\t for   the  security,\tshall  be   removed  by\t the\nSuperintendent as  soon as he is of opinion that this can be\ndone with safety. The Superintendent will have to review the\ncase at\t regular and  frequent\tintervals  for\tascertaining\nwhether the fetters can be removed. [510-A-B, 509E-H]\n     15. Moreover the section does not permit the use of bar\nfetters for  an unusually  long period,\t day and  night, and\nthat too when the prisoner is confined in a secure cell from\nwhere escape is somewhat inconceivable. [511B] C\nPer Krishna Iyer J. concurring\n     1. The  vires of  section 30  and\tsection\t 56  of\t the\nPrisons\t Act  upheld.  These  and  other  provisions,  being\nsomewhat out  of tune with current penelogical values, to be\nrevised by  fresh legislation.\tPrison\tManuals\t are  mostly\ncallous colonial  compilations and  even  their\t copies\t are\nmostly beyond  the prisoner's ken. Punishments. in civilized\nsocieties, must not degrade human dignity or would flesh and\nspirit.\t The   cardinal\t sentencing  goal  is  occupational,\nchanging  the consciousness of the criminal to ensure social\ndefence. Where\tprison treatment  abandons  the\t reformatory\npurpose\t and   practises  dehumanizing\t techniques  it\t  is\nwasteful, counter-productive  and irrational hovering on the\nhostile brink of unreasonableness (Article 19). [488B-C]\n     (2)  Solitary   confinement,  even\t if  mollified\tan(l\nmodified  marginally,\tis  not\t sanctioned  by\t s.  30\t for\nprisoners 'under  sentence of  death'. But it is legal under\nthat section to separate such sentences from the rest of the\nprison community  during hours\twhen prisoners are generally\nlocked in.  The\t special  watch,  day  and  night.  Of\tsuch\nsentences by  guards upheld.  Infraction of  privacy may  be\ninevitable, but guards must concede minimum human privacy in\npractice. [488E]\n     (3) Prisoners  'under sentence  of death'\tshall not be\ndenied any  of the  community  amenities.  including  games,\nnewspapers, books,  moving around  and meeting prisoners and\nvisitors,  subject   to\t reasonable   regulation  of  prison\nmanagement. Section  30 is  no substitute  for\tsentence  of\nimprisonment and  merely prescribes the manner of organizing\nsafe jail custody authorised by s. 366, Cr. P. C. [488F]\n     (4) If  the prisoner  desires loneliness for reflection\nand remorse, for prayers and making peace with his maker, or\nopportunities for meeting family or friends. such facilities\nshall be  liberally granted,  having regard to the stressful\nspell  of  terrestial  farewell\t his  soul  may\t be  passing\nthrough, the  compassion society  owes to  him whose life it\ntakes. [488H]\n     (5) The crucial holding under s. 30(2) is that a person\nis not 'under sentence of death', even if the sessions Court\nhas sentenced  him to  death subject  to confirmation by the\nHigh Court.  He is not 'under sentence of death' even if the\nHigh Court  imposes,  by  confirmation\tor  fresh  appellate\ninfliction, death  penalty, so\tlong as\t an  appeal  to\t the\nSupreme Court  is likely  to be\t or has\t been  moved  or  is\npending Even  if this Court has awarded capital sentence, s.\n30 9-526SCI \/78\n396\ndoes not  cover him so long as his petition for mercy to the\nGovernor  and\/or   to  the   President\tpermitted   by\t the\nConstitution, Code  and Prison\tRules, has not been disposed\nof.  Of\t course,  once\trejected  by  the  Governor  or\t the\nPresident, and\ton further  application there  is no stay of\nexecution by  the authorities,\the  is\t'under\tsentence  of\ndeath', even  if he  goes on making further mercy petitions.\nDuring\tthat   interregnum   he\t  attracts   the   custodial\nsegregation specified  in s. 30(2). To be 'under sentence of\ndeath`\tmeans  'to  be\tunder  a  finally  executable  death\nsentence'. [48H, 489A-C]\n     (6) Further  restraint on\tsuch a condemned prisoner is\nnot ruled  out, if  clear and  present danger of violence or\nlikely violation  of custody is, for good reasons, made out,\nwith due regard to the rules of fair play implied in natural\njustice. Minimal  hearing shall\t be accorded to the affected\nprisoner if he is subjected to further severity. [489D]\n     (7) On  the necessity for prison reform and revision of\nJail Manuals held:-\n\t  (a)  Section 56  must be  tamed and trimmed by the\n\t       rule of\tlaw and\t shall not turn dangerous by\n\t       making prison 'brass' an imperium in imperio.\n\t       The superintendent's  power shall  be  pruned\n\t       and his\tdiscretion, bridled for the purpose.\n\t       [489 E]\n\t  (b)\t Under-trials  shall  be  deemed  to  be  in\n\t       custody,\t  but\t not   undergoing   punitive\n\t       imprisonment.  So  much\tso,  they  shall  be\n\t       accorded\t  more\t relaxed   conditions\tthan\n\t       convicts. [489E]\n\t  (c)\tFetters, especially  bar fetters,  shall  be\n\t       shunned as violative of human dignity, within\n\t       and  without   prisons.\tThe   indiscriminate\n\t       resort to  handcuffs when accused persons are\n\t       taken to\t and from court and the expedient of\n\t       forcing irons  on prison\t inmates are illegal\n\t       and shall  be stopped  forthwith\t save  in  a\n\t       small category of cases. Reckless handcuffing\n\t       and chaining  in\t public\t degrades,  puts  to\n\t       shame finer  sensibilities and  is a  slur on\n\t       our culture. [489F]\n\t  (d)\tWhere an under trial has a credible tendency\n\t       for violence  and escape a humanely graduated\n\t       degree of 'Iron' restraint is permissible if-\n\t       only if-other  disciplinary alternatives\t are\n\t       unworkable. The burden of proof of the ground\n\t       is on the custodian. And if he fails, he will\n\t       be liable in law. [489G]\n\t  (e)  The 'iron' regimen shall in no case go beyond\n\t       the intervals,  conditions and  maxima killed\n\t       down for\t punitive 'irons'. They shall be for\n\t       short spells,  light  and  never\t applied  if\n\t       sores exist. [489H]\n\t  (f)  The discretion  to impose  'irons' is subject\n\t       to   quasi-judicial    oversight,   even\t  if\n\t       purportedly imposed  for reasons of security.\n\t       [490A]\n\t  (g)  A previous  hearing. minimal may be, shall be\n\t       afforded\t to   the  victims.  In\t exceptional\n\t       cases, the hearing may be soon after. [490 B]\n\t  (h)  The gourmands for 'fetters' shall be given to\n\t       the victim.  ,2nd when the decision to fetter\n\t       is made, the reasons shall be recorded in the\n\t       n journal  and in  the history  ticket of the\n\t       prisoner in  the State  language. If  he is a\n\t       stranger\t to   that  language   it  shall  be\n\t       communicated to\thim, as\t far as possible, in\n\t       his language.  This applies  to cases as much\n\t       of prison  punishment as\t of 'safety fetters.\n\t       [490 B-C]\n397\n\t  (i)\tAbsent provision  for independent  review of\n\t       preventive  and\t punitive  A   action,\t for\n\t       discipline or  security, such action shall be\n\t       invalid\t as   arbitrary\t  and\tunfair\t and\n\t       unreasonable. The  prison officials will then\n\t       be liable  civilly and criminally for hurt to\n\t       the person  of the  prisoners. The State will\n\t       urgently set  up or  strengthen the necessary\n\t       infra structure and process in this behalf-it\n\t       already exists in embryo in the Act. [490C-D]\n\t  (j)  Legal aid shall be given to prisoners to seek\n\t       justice from prison authorities, and, if need\n\t       be, to  challenge the  decision\tin  Court-in\n\t       cases where  they are  too poor\tto secure on\n\t       their  own.  If\tlawyer's  services  are\t not\n\t       given, the  decisional process becomes unfair\n\t       and unreasonable, especially because the rule\n\t       of law  perishes for  a disabled\t prisoner if\n\t       counsel\t is    unapproachable\tand   beyond\n\t       purchase. By  and large,\t prisoners are poor,\n\t       lacking legal  literacy, under  the trembling\n\t       control of  the jailor,\tat his\tmercy as  it\n\t       were, and  unable to meet relation or friends\n\t       to take\tlegal action.  Where a remedy is all\n\t       but dead\t the  right  lives  only  in  print.\n\t       Article 19 will be violated in such a case as\n\t       the process  will be unreasonable. Article 21\n\t       will be\tinfringed  since  the  procedure  is\n\t       unfair and is arbitrary. [490E-F]\n\t  (k)  No 'fetters'  shall continue  beyond day time\n\t       as noctural  fetters on locked-in detenus are\n\t       ordinarily uncalled  for,  viewed  from\tcons\n\t       derations of safety. [490G]\n\t  (I)  The prolonged  continuance of  'irons', as  a\n\t       punitive or preventive step, shall be subject\n\t       to previous  approval by an external examiner\n\t       like a  Chief Judicial Magistrate or Sessions\n\t       Judge who  shall briefly\t hear the victim and\n\t       record reasons.\tThey are ex-officio visitors\n\t       of most Central Prisons. [490G]\n\t  (m)  The Inspector-General  of Prisons shall, with\n\t       quick despatch  consider revision  petitions,\n\t       by  fettered   prisoners\t  and\tdirect\t the\n\t       continuance or  discontinuance of  the irons.\n\t       In the  absence of  such prompt decision, the\n\t       fetters\tshall\tbe  deemed   to\t have\tbeen\n\t       negatived and shall be removed. [490H-491A]\n     (8)  The Jurisdictional reach and range of this Court's\nWrit to\t held prison  caprice and  cruelty in constitutional\nleash is  incontestable. Prisoner  have enforceable liberals\ndevalued may  be but  not demonetized,\tand under  on  basic\nscheme,\t Prison\t  Power\t must  bow  before  Judge  Power  is\nfundamental freedom are in jeopardy. Activist legal aid as a\npipeline to  carry to  the court  the breaches of prisoners'\nbasic rights  is a  radical humanist concomitant of the rule\nof prison  law.\t And  in  our  constitutional  order  it  is\naxiomatic that\tthe  prison  laws  do  not  swallow  up\t the\nfundamental rights  of the  legally unfree, and as sentinels\non the\tqui vive,  courts will\tguard freedom  behind  bars,\ntempered, of course, by environmental realism but intolerant\nof torture  by executive echelons. The policy of the law and\nthe parmountcy\tof the\tConstitution are  beyond purchase by\nauthoritarians glibly  invoking 'dangerousness'\t of  inmates\nand peace  in prisons.\tIf judicial  realism is\t not  to  be\njettisoned, judicial  activism must  censor the\t argument of\nunaccountable prison autonomy. [409H, 410A, 412G-413B]\n\t  (9)\t  Class\t actions,   community\tlitigations,\n\t       representative suits,  test cases  and public\n\t       interest proceedings  are in  advance on\t our\n\t       traditional  court   processes\tand   foster\n\t       people's vicarious involvement in our justice\n\t       system with a broad\n398\nbased concept  of locus\t standi so  necessary in a democracy\nwhere the  masses are  in many senses weak. The intervention\nof social  welfare  organisations  in  litigative  processes\npregnant with  wider implications  is  a  healthy  mediation\nbetween the  people and\t the rule of law. Wisely. permitted,\nparticipative\tjustice,   promoted   through\tmass   based\norganizations and public bodies with special concern seeking\nto intervene,  has a democratic potential for the little men\nand law. [414H, 415B]\n     (10) Rehabilitation  effort as a necessary component of\nincarceration is  part of the Indian criminal justice system\nas also of the United States. The custodial staff can make a\nsignificant contribution by enforcing the rule of prison law\nand preparing  convicts for  a law-abiding  life after their\nrelease. The  important proposition is that it is a crime of\npunishment  to\t further  torture   a  person\tunder  going\nimprisonment, as  the remedy  aggravates the malady and thus\nceases to  be a reasonable justification for confiscation of\npersonal freedom and is arbitrary because it is blind action\nnot geared  to the  goal of  social defence, which is one of\nthe primary ends of imprisonment. [416H, 416C, 417F]\n     Mohammed Giasuddin\t v. State of Andhra Pradesh<\/a>  1977(3)\nSCC 287,  Shelton v.  Tucker 364  US  476  (1950)  at  p.468\nreferred to.\n     (11)  The\t Court\tdoes   not  'rush  in'\tto  demolish\nprovisions    where    judicial\t   endeavor,\tameliorative\ninterpretational, may  achieve\tboth  constitutionality\t and\ncompassionate  resurrection.   The  semantic   technique  of\nupdating  the  living  sense  of  a  dated  legislation\t is,\nperfectly legitimate,  especially when,\t in  a\tdeve  loping\ncountry like ours, the corpus juris is in some measure a Raj\nhang over. Courts must, with intelligent imagination, inform\nthemselves of  the values  of  the  Constitution  and,\twith\nfunctional flexibility,\t explore the  meaning of meanings to\nadopt that Constitution which humanly constitutionalises the\nstatute\t in   question.\t The   jurisprudence  of   statutory\nconstruction, especially when a vigorous break with the past\nand smooth  reconciliation  with  a  radical  constitutional\nvalue-set are  the object,  uses the art of reading down and\nreading\t wide,\tas  part  of  interpretational\tengineering;\n[419D-E, 420E, 422B]\n      Weems  v. United\tStates 54 L. ed. p. 801, Harvard Law\nReview Vol.  24 (1970-71)  p. 54-55. R. L. Arora v. State of\nUttar Pradesh<\/a> (1964) 6 SCR 784 referred to.\n     (12) Part III of the Constitution does not part company\nwith the  prisoner at  the  gates,  and\t judicial  oversight\nprotects the  prisoner's  shrunken  fundamental\t rights,  if\nflouted upon  or frozen by the prison authority. Is a person\nunder death  sentence, or  under trial\tunilaterally  dubbed\ndangerous liable  to suffer extra torment too deep for fears\n? Emphatically\tno, lest  social  justice,  dignity  of\t the\nindividual, equality  before the  law, procedure established\nby law\tand the\t seven lamps  of freedom  (Art.\t 19)  become\nchimerical  constitutional   clap  trap.  The  operation  of\nArticles 14,19\tand 21\tmay be pared down for a prisoner but\nnot puffed  out altogether.  The necessary  sequitur is that\neven a\tprisoner, standing  trial has  basic liberties which\ncannot be bartered away. [428H-429B. 429E]\n     (13) So  the law is that for a prisoner all fundamental\nrights are  an enforce able reality though restricted by the\nfact of\t imprisonment. When  human rights  are hashed behind\nbars, constitutional justice impeaches such law. [430 C-B]\n      A.  K. Gopalan  v. State\tof Madras<\/a> 1950 SCR 88; R. C.\nCooper v.  Union of<\/a>  lndia (1971)  SCR 512;  Kharak Singh v.\nState of  U.P.<\/a> (1964)  SCR 232;\t Maneka Gandhi\tv. Union  of\nIndia<\/a> (1978) 1 SCR 218, referred to.\n399\n     (14)  Is  solitary\t confinement  or  similar  stressful\nalternative, putting  the prisoner  beyond the zone of sight\nand speech  and society\t and  wrecking\this  psyche  without\ndeceive\t  prophylactic\t  or\tpenological    gains,\t too\ndiscriminating\tto   he\t valid\t under\t Article   14,\t too\nunreasonable to\t be intra  vires Article 19 and too terrible\nto qualify  for being  human law  under Article\t 21 ? If the\npenal law  merely  permits  safe  custody  of  a  condemned'\nsentence, so  as to  ensure  his  instant  availability\t for\nexecution with\tall the\t legal rituals on the appointed day,\nis not\tthe hurtful  severity of  hermetic insulation during\nthe tragic  gap between\t the first  judgment and the fall of\nthe pall,  under guise\tof  a  prison  regulation,  beyond(l\nprison power ? [431F-G]\n     (15) lt  is a certainty that a man in the death row who\nhas invited  that fate by one murder and is striving to save\nhimself from  the allows by frantic forensic proceedings and\nmercy petitions is not likely to make his hanging certain by\ncommitting any murder within the prison. [434B]\n     (16) A  mere administrative  officer's deposition about\nthe behavioral\tmay be\tof men\tunder contingent sentence of\ndeath cannot  weigh  with  us  when  the  limited  liberties\nexpression and\tlocomotion of  prisoners are  sought  to  be\nunreasonably pared down or virtually wiped out by oppressive\ncell insulation.  Where total  deprivation to  the truncated\nliberty of  prisoner locomotion is challenged the validatory\nburden is on the State. [436C-D]\n     (17)  Criminological   specialists\t have\tconsistently\nviewed\twith   consternation  the   imposition\tof  solitary\nconfinement   punitively    and,    obviously,\t  preventive\nsegregation stands  on a  worse footing\t  since\t it does not\nhave even  a disciplinary  veneer.  Our\t human\torder.\tmust\nreject 'solitary confinement' as horrendous. [444H, 445 A-B]\n     In re Ramanjulu Naidu AIR 1947 Mad 381 approved.\n     James C. Colemen-Abnormal Psychology and Modern Life p.\n105: Royal Commission on Capital Punishment 1949-1953 Report\npp. 216-217.\n     Law Commission to India-42nd Report. Referred to.\n     (18) Petitioner  is under 'statutory confinement' under\nthe authority  of section 30(2) of the Prisons Act read with\nsection 366(2)\tCr. P.C.  It will  be  a  stultification  of\njudicial power if, under guise of using section 30(2) of the\nPrisons\t  Act,\t the   Superintendent\tinflicts   what\t  is\nsubstantially solitary\tconfinement which  is a\t species  of\npunishment  exclusively\t  within  the  jurisdiction  of\t the\ncriminal court.\t Held Petitioner  shall\t not  be  solitarily\nconfined. [447B]\n     (19) Law  is not  a formal\t label, nor  logomachy but a\nworking\t technique  of\tjustice.  The  Penal  Code  and\t the\nCriminal Procedure  Code regard\t punitive solitude too harsh\nand the\t Legislature cannot be intended to permit preventive\nsolitary confinement, released even from the restrictions of\nSections 73  and 74  IPC, Section  29 of the Prisons Act and\nthe restrictive Prison Rules. It would be extraordinary that\na far  worse solitary  confinement, marked  as safe custody,\nsans maximum,  sans intermission, sans judicial oversight or\nnatural justice, would be sanctioned. [447D-E]\n     (20) Section  30 of the Prisons Act can be applied only\nto a prisoner \"under sentence of death\". Section 30(2) which\nspeaks of  \"such\" prisoners necessarily relates to prisoners\nunder sentence\tof death.  We have  to discover\t when we can\ndesignate  a  prisoner\tas  one\t under\tsentence  of  death.\nConfinement  inside   prison  does  not\t necessarily  impart\ncellular isolation. Segregation of one person\n400\nall alone  in a single cell is solitary confinement. That is\na separate  punishment which  the Court alone can impose. It\nwould be   subversion of this statuary provision (Section 73\nand 74\tIPC) to\t impart a  meaning to  Section 30(2)  of the\nPrisons Act  whereby  a\t disciplinary  variant\tof  solitary\nconfinement can\t be clamped  down on a prisoner, although no\ncourt has awarded such a punishment. [448B, 448D]\n     (21) \"Apart  from all  other prisoners\" used in Section\n30(2) is  also a phrase of flexible import, segregation into\nan isolated  cell is  not warranted by the word. All that it\nconnotes is  that in  a cell  where there are a plurality of\ninmates, the  death sentence  will have to be kept separated\nfrom the  rest in  the same  cell but  not too\tclose to the\nothers. And  this separation  can  be  effectively  achieved\nbecause the  condemned prisoner\t will be  placed  under\t the\ncharge of a guard by way and by night. [448-F-G]\n     (22) Prison  offences are\tlisted\tin  section  45\t and\nsection 46  deals with punishment for such offences. Even if\na grave\t prison offence\t has been  committed. the punishment\ndoes not  carry segregated  cellular existence\tand  permits\nlife in\t association in\t mess and exercise in view and voice\nbut not\t in communication  with\t other\tprisoners.  Punitive\nseparate confinement  shall  not  exceed  there\t months\t and\nsection\t 47   interdicts   the\t combination   of   cellular\nconfinement    and    \"separate\t   confinement\"\t   \"Cellular\nconfinement\"  is   a  stricter\t punishment  than   separate\nconfinement and\t it cannot  exceed 14  days because  of\t its\nrigor. Less  severe is\tcellular confinement  under  section\n46(10)\tof   the  Prisons   Act\t and  under  section  46(8).\nObviously, disciplinary needs of keeping apart a prisoner do\nnot involve  any harsh\telement of  punishment\tat  all.  An\nanalysis of  the provision  of the  Penal Code\tand  of\t the\nPrisons Act  yields the\t clear inference  that section 30(2)\nrelates\t to  separation\t without  isolation,  keeping  apart\nwithout close confinement. [449B, 450B-C, 450F, 450H]\n     (23) The  Court awards  only  a  single  sentence\tviz.\ndeath. But  it cannot  be  instantly  executed\tbecause\t its\nexcitability is\t possible only\ton confirmation\t by the High\nCourt. In  the meanwhile,  the sentence\t cannot be let loose\nfor he\tmust be available for decapitation when the judicial\nprocesses are  exhausted. So it is that section 365(2) takes\ncare of this awesome interregnum by com\n missing  the convict  to jail\tcustody. Form 40 authorities\nsafe keeping.  The 'safe  keeping' in  jail custody  is\t the\nlimited jurisdiction  of the  jailor.  The  convict  is\t not\nsentenced to  imprisonment. He\tis not sentenced to solitary\nconfinement. He is a guest in custody in the safe keeping of\nthe host-jailor\t until\tthe  terminal  hour  of\t terrestrial\nfarewell whisks\t him away  to the  halter. The\tinference is\ninevitable that\t if  the  'condemned'  man  were  harmed  by\nphysical or  mental torture  the law  would not tolerate the\ndoing, since  injury and  safety  are  obvious\tenemies.  To\ndistort safe-keeping  into a  hidden opportunity to cage the\nward and  to traumatize\t him is to betray the custody of the\nlaw. Safekeeping  means keeping\t his body  and mind  in fair\ncondition. To  torture his mind is unsafe keeping. Injury to\nhis personality\t is not\t safe keeping. To preserve his flesh\nand crush  his spirit  is not  safe keeping.  Any  executive\naction which  spells infraction of the life and liberty of a\nhuman being  kept  in  prison  precincts,  purely  for\tsafe\ncustody, is  a challenge  to the basic notion of the rule of\nlaw unreasonable,  unequal, arbitrary  and unjust. [451 D-H,\n452B, D.F]\n     (24) A  convict is\t under sentence\t of death  when, and\nonly when?  the capital\t penalty inexorably  operates by the\nautomatic process of the law.\n401\n     Abdul Azeez v. Karnataka [1977] 3 SCR 393: D. K. Sharma\nv. M. P. State A [1976] 2 SCR 289 referred to. [454G]\n     (25) A self-acting sentence of death does not come into\nexistence in  view of  the impediment  contained in  section\n366(1) even  though the Sessions Court might have pronounced\nthat sentence.\tAssuming that  the High\t Court has confirmed\nthat death  sentence or\t has de novo imposed death sentence,\neven then,  there is  quite a likelihood of an appeal to the\nSupreme Court  and when an appeal pends against a conviction\nand sentence  in regard\t to an offence punishable with death\nsentence such  death sentence  even if confirmed by the High\nCourt shall  not work  itself, until  the Supreme  Court has\npronounced  judgment   Articles\t 72   and  161\tprovide\t for\ncommutation of\tdeath sentence\teven like  sections 433, 434\nand 435\t Cr. P.C.  Rules 547  and 548  made under the Prison\nAct, provide for a petition for commutation by the prisoner.\nIt follows  that during the Pendency of a petition for mercy\nbefore the  State Governor  or the  President of  India\t the\ndeath sentence\tshall not be executed. Thus, until rejection\nof the\tclemency motion\t by these two high dignitaries it is\nnot possible  to predicate  that there\tis a  self-executory\ndeath sentence\tand he\tbecomes subject\t to it only when the\nclemency  application\tby  the\t prisoner  stands  rejected.\n[455BD, 456B, H 457A]\n     (26) The  goals of\t prison keeping, especially if it is\nmere safe  keeping, come   be  attained without\t requiring a\nprisoner to  live in  the exacerbated conditions 1) of bare-\nfloor solitude.\t Functionally  speaking,  the  court  has  a\ndistinctive duty  to reform  prison practices  and to inject\nconstitutional consciousness  into  the\t system.  Sastre  v.\nRockefeller 312F.  Suppl. 863 (1970). Wolfe v. Mc Donnell 41\nI. rd. 2d p. 935. [465 B-C]\n     (27) The  great problems of law are the grave crises of\nlife and  both can be solved not by the literal instructions\nof   printed\tenactments   but   by\tthe   interpretative\nsensitization of  the heart-to\t'one  still,  sad  music  of\nhumanity. [471 G]\n     (28 )  . The  humane thread  of jail jurisprudence that\nruns right  through  is\t that  no  prison  authority  enjoys\namnesty\t for  unconstitutionality  and\tforced\tfarewell  to\nfundamental right  is an institutional outrage in our system\nwhere stone  walls and\tiron bars shall bow before- the rule\nof law. [471H-472A]\n     (29) Many\tstates like  Tamil Nadu,  Kerala  etc.\thave\nabandoned the  disciplinary barbarity  of bar  fetters.\t The\ninfraction of  the prisoner  s freedom by bar fetters is too\nserious to  be viewed  lightly and  the\t basic\tfeatures  of\nreasonableness must be built into the administrative process\nfor constitutional  survival. Therefore,  an outside agency,\nin the\tsense of an official. higher than the Superintendent\nor external  to the  prison department,\t must be  given\t the\npower to review the older of 'irons'. Rule 423 speaks of the\nInspector General  of Prisons  having to  be informed of the\ncircumstances necessitating  fetters and belchains. Rule 426\nhas a similar import. A right of appeal or revision from the\naction of  the Superintendent  to the  Inspector General  of\nprisons and  quick action by way of review v are implicit in\nthe provision. [477D. 477F-478A]\n     (30) one  of the  paramount requirements of a valid law\nis that it must be within the cognizance of the community if\na competent search for it were made. Legislative tyranny may\nbe unconstitutional  if the  State by  devious methods\tlike\npricing legal publication monopolised by government too high\ndenies the\n402\nequal  protection  of  the  laws  and  imposes\tunreasonable\nrestrictions on exercise of fundamental rights [485G. 486B]\n     Bhuvan Mohan Patnaik v. State of A.P. [1975] 3 SCC 185,\n189.\n     (31) The  roots of\t our Constitution  lie deep  in\t the\nfiner. spiritual  sources  of  social  justice,\t beyond\t the\nmelting\t pot   of  bad\t politicking  feudal  crudities\t and\nsublimated sadism,  sustaining itself  by profound  faith in\nMan and\t his latent  divinity, and so it is that the Prisons\nAct provisions and the Jail Manual itself must be revised to\nreflect\t this\tdeeper\tmeaning\t in  the  behavioral  norms,\ncorrectional attitudes and humane orientation for the prison\nstaff and prisoners alike. [492E]\n\t\t\t ARGUMENTS\nFor the Petitioner in Writ petition No. 2202 of 1977.\n     1. Section\t 30 by its language docs not enjoin the jail\nauthorities to confine a prisoner under sentence of death to\nsolitary confinement.  It provides  that  a  prisoner  under\nsentence of  death should  be confined\tin a cell apart from\nall other  prisoners and shall be placed day and night under\nthe charge  of a  guard. Such  a  prisoner  is\tentitled  to\nparticipate  in\t all  the  recreational\t and  rehabilitation\nactivities of  the jail\t and is also entitled to the company\nof other prisoners.\n     2. Section\t 30 requires that a prisoner \"under sentence\nof death\"  shall be  confined in  the manner.  prescribed by\nsub-section (2).  The expression  'under sentence  of death'\nalso occurs  in s.  303 I.P.C..\t In [1976]  2 'SCR  289\t the\nSupreme Court  held that  the expression 'must be restricted\nto a sentence which is final, conclusive and ultimate so far\nas  judicial  remedies\tare  concerned`r  As  far  as  death\nsentence is concerned the trial does not end in the Sessions\nCourt and  confirmation proceedings  in the High Court are a\ncontinuation of the trial, [1975] 3 SCR. 574. In other words\nuntil the  High Court confirms a sentence of death, there is\nno operative  executable sentence  of death.  Article 134 of\nthe Constitution  also provides for an appeal to the Supreme\nCourt in  certain cases\t where the  High Court\thas  awarded\ndeath penalty.\n     3. The  conditions of  solitary  confinement  have\t the\ntendency of depriving a prisoner of his normal faculties and\nmay have  the tendency\tto destroy  a prisoner's mentallity.\nJustice, Punishment,  Treatment by  Leonard orland 1973 Edn.\n297, 307-308:  Havelock Ellis,-The  Criminal p. 327; History\nof solitary  confinement and its effects-134 US 160.\n     4. Solitary  confinement is  imposed  as  a  punishment\nunder sections 73 and 74 I.P.C. and under the Prisons Manual\nas a matter of prison discipline. It does not exceed 14 days\nat a time. In the case of prisoner who is under a sentence\n of  death, as\tconstrued by  the jail authorities, however,\nsuch confinement continues over long periods.\n     5. The  Law Commission  of India in its 42nd Reports at\np. 78 has recommended the abolition of solitary confinement.\nCourts have  also condemned it. A.l.R. 1947 Mad. 386; 134 US\n160, 167. 168.\n     6.\t There\t are  compelling   reasons  that   a  narrow\nconstruction should  be put on Sec. 30 which will reduce the\nextreme rigour\tand penalty of the law. Only a court has the\nauthority to  inflict a\t punishment. The jail authorities do\nnot have  a right  to inflict  any punishment  except  as  a\nmatter of jail discipline. As\n403\ns. 30  empowers the jail authorities to impose an additional\npunishment of  solitary A  confinement, it is submitted that\nit is violative of Art. 20(l) of the Constitution.\n     7. The  expression under  'sentence of death' should be\nconstrued to  mean  'under  a  final  executable,  operative\nsentence of  death'. There is legislative injunction against\nthe execution  of a  sentence of death in Ss. 366, 413, 414,\n415, 432  and 433  Cr. P.  C. A\t sentence of death cannot be\nexecuted till  the appeal, if any, has been finally disposed\nof by the Court. A prisoner has also the right to make mercy\npetitions to  the Governor  or the president as the case may\nbe. Para 548 of the Prison Rules provides that in no case is\nthe  sentence\tof  death  to  be  carried  out\t before\t the\nGovernment s  reply to\tthe mercy petition is received. Till\nthis time  arrives, a  prisoner under  sentence of  death is\nentitled to  be treated as a human being with a hope for the\nfuture, entitled  to struggle  for rehabilitation.  Till the\nfinal stage has arrived such a prisoner cannot be treated as\na lost, condemned human being.\n     8.\t Section  30  is  violative  of\t Au  t.\t 14  of\t the\nConstitution. It imposes the penalty or solitary confinement\non condemned  prisoners without\t any distinction. The Prison\nManual does  contain provision\tfor dangerous  prisoners who\nmay, as\t a matter  of prison discipline, be kept in solitary\nconfinement. Failure  to make  a distinction  between a safe\nprisoner under sentence of death and a hostile and dangerous\nprisoner introduces  arbitrariness in the treatment accorded\nto prisoners  under sentence  of death and thus is violative\nof Article 14.\n     9. A prisoner is not deprived of his personal liberties\n[1975]2 SCR  24. Article 21 is subject to Article 14. [19781\n1 S.C.C.  248 The  expression 'life'  as used  in Article 21\nmeans something\t more than  mere animal\t existence  and\t the\ninhibition against  is\tdeprivation  extends  to  all  those\nlimits and faculties by which life is enjoyed.\nFor the Respondent in W.P. 2202\/77\n     1. Criminal law of India recognises capital punishment.\nIt is  awarded in  very few  cases. It\tis not\tthe rule but\nrather the exception, [1974] 3 S.C.R. 340.\n     2. Death  penalty has  been upheld as constitutional in\n[1973] 2  S.C.R. 541.  Section 354  (3)\t Cr.  P.C.  Of\t1973\nrequires the  recording of  reasons for\t infliction of death\npenalty.\n     3. there is no provision for substantive due process in\nthe Indian  Constitution. 11950]  S.C.R. 88, [1973] 2 S.C.R.\n541\/548.\n     4.. A  prisoner is\t not a slave of the State and is not\ndenuded of  all\t fundamental  rights.  Lawful  incarceration\nbrings about  the necessary withdrawal or limitation of many\nrights and  makes them\tunavailable to\tprisoners. Prisoners\nhave less  than the  full panoply  of freedoms which private\npersons\t would\t have  in   non-prison\t situation.   Prison\nregulations  and   prison  discipline\tand   considerations\nunderlying our\tpenal system  necessitate restrictions being\nimposed. 92L, ed. 1356. 224 T. ed. 224. 238-24: 411 ed. 935.\n950, 954, 957. [1975] 2 S.C.R. 24.\n     5. Solitary  confinement is  complete isolation  of the\nprisoner from all human society and confinement in a cell so\narranged that  he has  no direct intercourse or right of any\nhuman being or no employment or instruction. Webster's Third\nNew International  Dictionary Vol. III p. 2170, 33L ed. 835,\n839.\n404\n     6. lt  is a  misnomer to  characterise confinement in a\ncell as\t provided in  Section JO(2)  read with Chapter 31 of\nthe Jail Manual as solitary confinement.\n     7. There  is a fundamental distinction between solitary\nconfinement imposed I punishment or an additional punishment\nand confinement\t of prisoner  under sentence  of death\tin a\nseparate cell,\tfor the purpose of preventing his suicide or\nescape and  for ensuring the presence of the prisoner on the\nday appointed for execution.\n     8. The  expression \"under sentence of death\" in section\n30(2) means  under sentence of death which is executable and\nwhich is  finally conclusive and ultimate so far as judicial\nremedies are  concerned. [1976] 2 S.C.R 289, [1977] 3 S.C.R.\n393.  Section\t30(2)  should\tbe  so\t construed  and\t its\nimplications worked  out having\t regard to  Sections 413-415\nCr. P.C`.\n     9. The rational underlying section 30(2) and Chapter 31\nof the\tManual is  that prisoners  under sentence  of death,\npresent problems  peculiar to  such persons  which  warrants\ntheir separate\tclassification and treatment as a measure of\njail administration  and jail  discipline.  Prisoners  under\nsentence of  death are\tin a  class by\tthemselves and their\nseparate classification\t has been  recognised over the years\nin India  and other  civilized countries.  Even in countries\nwhere solitary\tconfinement as a norm of punishment has been\nabolished, confinement\tof prisoners under sentence of death\ncontinues. [Halsbury's\tLaws of England Vol. 30 p. 601. para\n1151. U.K. Prison Rules 1964 (r.r. 74-76].\n     10.  The\tfundamental  distinction   between  imposing\nsolitary confinement  as a  punishment and  as\ta  necessary\nmeasure of  jail discipline is recognised in the 42nd Report\nof the law Commission. (para 380).\n     11. Section  30(2) so  construed is  not  violative  of\nArticle 14.  The failure  to sub-classify  does not  involve\nbreach of Article 14.\n     12. In the United States solitary confinement even as a\npunishment by  itself has  been consistently  held to be not\nviolative of the VIII Amendment. What the Courts have struck\ndown is\t the particular system of solitary confinement if it\nis implemented\tand maintained\tin an  inhuman or  barbarous\nmanner. Conditions  in jail  may not be perfect or ideal but\nthe same  cannot be  said to  be sub-human  or violative  of\nhuman dignity  of prisoners.  Certain matters  may  urgently\ncall for  reform but  that does not brand the Regulations as\nunconstitutional .\nFor the Petitioner in Writ Petition No. 565\/77\n     1. (a) The petitioner who is an under-trial prisoner is\na French  National and\tnot being a citizen of India certain\nfundamental rights like Article 19 are not available to him.\nBut as\ta human\t being he  is entitled\ton the\tbasic rights\nwhich are  enshrined in\t Articles 14  20 21  and 22  of\t the\nConstitution.\n     (b) The  petitioner who  was arrested  on 6th July 1976\nalongwith four\tother foreigners  has been  kept  under\t bar\nfetters 24  hours a  day auld  they are\t welded on  him ever\nsince his arurest.\n     2. The  petitioner seeks  to challenge Paragraph 399(3)\nof the\tPunjab laid Manual and Section 56 of the Prison Act,\nas violative  of the  petitioner's fundamental\tright  under\nArticles 14  and 21 of the Constitution. The following facts\nindicate the  brutality inflicted  by the respondents on the\nPetitioner.\n405\n     (a) By  continuous wearing\t of bar\t fetters? there were\nwounds on  his ankles  A and  he  represented  to  the\tjail\nauthority to  remove them.  As no  relier was  obtained, the\npetitioner. filed  a writ  petition in\tthe Delhi High Court\nchallenging the\t conditions of\this detention  but the\tHigh\nCourt dismissed\t the same as not maintainable on February 2,\n1977 relying  on 1972(2)  S.C.R. 719.  As such\tdespite\t his\nwounds the petitioner had to suffer.\n     (b) The  Jailor  ordered  removal\tof  bar\t fetters  in\nFebruary 9,  1977  for\t15  days  but  jail  authorities  in\nviolation of  medical advice  put bar  fetters after  9 days\ni.e. 18th  February 1977.  The respondents  thereby violated\nthe mandatory provisions of the Act.\n     (c) The  Punjab Jail  Manual is  totally  an  out-dated\nenactment inasmuch  as even  after 30 years of Independence,\nparagraph 576(d)(1)  makes the\twearing\t of  Gandhi  Cap  by\nprisoners a  jail offence an pargraph 63010) permits inhuman\npunishment like\t beating, besides  putting bar fetters under\nparagraph 399 read with section 56 of the Prison Act.\nLEGAL SUBMISSIONS\n     1. A  person in  jail is  already subject\tto  enormous\ncurtailment of\this liberties.\tThe protection\tof  whatever\nliberties are  left inside  the jail demand that they cannot\nbe  taken   away  arbitrarily\tand  without  the  procedure\nestablished by\tlaws. The  greater the restriction, stricter\nshould be the security of the Court, so that the prisoner is\nnot subjected  to unnecessary  and  arbitrary  loss  of\t his\nremaining liberties.\n     2. Paragraphs 399 and 435 of the Punjab Jail Manual are\nnot laws  under Article\t 13(3) of  the Constitution of India\nand are\t void as  they restrict personal liberty without the\nauthority of law under Article 21 of the Constitution. These\nprovisions bar\twhich bar  fetters can be put on a prisoner,\nseverely curtailing his liberty of movement of limbs, on the\nground that  he\t is  dangerous\tand  as\t long  as  the\tjail\nauthorities consider  it necessary  are void  as they do not\nhave authority of law (1964) 1 SCR 332, 338, 339, 345.\n     3. (a)  Section 56\t of  the  Prison  Act  is  arbitrary\ninasmuch as  it allows\tthe jail  authorities to  choose any\ntype of\t irons to  be put  on any prisoner. in paras 425 and\n614 of\tthe  Punjab  Jail  Manual,  3  types  of  irons\t are\nmentioned; handcuffs  weighing 2 Ibs., link fetters weighing\n2 Ibs  and bar\tfetters weighing  5 Ibs. Section 56 does not\ngive any  guide-line as\t to which fetters are to be put on a\nprisons-  who\tis  considered\t dangerous.  Thus  similarly\nsituated prisoners can has discriminate under. the section.\n     (b) Since\tsection 56 which allows the Prison Authority\nto put\tirons on  prisoner depending  upon the\tstate of the\nprison it  is violative of Article 14 as well 15 Article 21.\nbecause if  the prisoner  is fortunate to be imprisoned in a\nwell-guarded modern  Jail he  would not\t be put under irons,\nwhile a\t similarly situated prisons who is unfortunate to be\nput in\ta dilapidated  jail, he\t would be  made to suffer by\nbeing put under irons.\n     (c) Section  56 is\t ultra vires  of Articles  14 and 21\nbecause it  allows the\tJail authorities to put irons on the\npersonal assessments  as \"to the character of prisoners\" The\nsection thereby\t gives complete\t power to  pick\t and  choose\nprisoners for. being confined in irons.\n406\n     (d) Section  56 of\t the Prison Act and paragraph 399 of\nthe Jail  Manual, which restrict personal liberty, in so far\nas they\t abridge and  take  away  fundamental  rights  under\nArticle 14,  will have to meet the challenge of that Article\notherwise it  is not  a valid  law. [1967]  3 S.C.R.  28\/46;\n[19701 3 S.C.R. 530\/546 and [1978] I S.C.R. 248\/323.\n     4. Paragraph 399(3) of the Manual and section 56 of the\nPrison ACT  which  impose inhuman and cruel restrictions and\nsubjects the  petitioner to  Torture more than those who are\npunished for jail offences are not laws when judged from the\nevolving  standards   of  decency  and\tpresent\t concept  of\ncivilization. When  bar fetters are to be used as punishment\nthey cannot  be put continuously for more than 3 months vide\nparagraphs 616\tand 617,  while under impugned paragraph 399\nand under  section 56  of the  Prison Act  they can  be\t put\nindefinitely.\n     5. When  a prisons\t is subject  to\t cruel\tand  inhuman\ntreatment the  Court  has  the\tpower  and  jurisdiction  to\ninterfere because  of its  sentencing  function,  since\t the\nprisoner is behind bars by the order of the Court. Hence the\ncondition   of\t  his\tconfinement   is   the\t continuing,\nresponsibility of the Court\n     6. In  view of  the Preamble  and\tArticle\t 51  of\t the\nConstitution, which  obligate the  State  to  respect  human\ndignity\t and   foster  respect\tfor  international  law\t and\nobligations,  the  Courts  have\t a  constitutional  duty  in\ninterpreting provisions\t of domestic laws to give due regard\nto  international   law\t  and\tcountry's   inter   national\nobligations.\n     7. This  is also because the judicial process is a part\nof the\tState activity\tvide Article 12 of the Constitution,\nand the\t directive principles  are addressed  as much to the\nExecutive and the Legislature as they are to the judiciary.\n     8. When  domestic law  is applied to a foreigner. there\nis a  presumption that\tthe legislature\t intends to  respect\nrules of  international law  and  country's  inter  national\nobligations.\n     70 ER  712\/716; [1960]  3 All.  E. R. 814\/821; 1891 (1)\nQ.B.D. 108\/112.\n     9. In  interpreting statutes particularly ancient penal\nstatutes, it  is the  duty of the court to interpret it in a\nbroad  and   liberal  sense   in  the  light  of  prevailing\nconditions and\tprefer a  construction which is favorable to\nthe individual.\n     [1953] S.C.R.  825\/847; A.I.R.  ]961  S.C.\t 1494,\t1968\nS.C.R. 62.\nFor the Respondent in Writ Petition No. 565\/77\n     1. Challenge to Sec. 56 of the Prisons Act 1894 must be\njudged\tin   the  context  of  the  subject  matter  of\t the\nlegislation viz. \"Prisons\".\n     2. Maintenance  of penal  institution  (Prison)  is  an\nessential function  of government for preservation of social\norder through enforcement of criminal law.\n     3. One of the primary and legitimate goals of any penal\ninstitution is\tthe maintenance\t of  institutional  security\nagainst escape\tof the prisoner from the care and custody of\nthe  penal   institution  to  which  he\t has  been  lawfully\ncommitted 40  I. ed.  2nd 234,\t235, 239; 41 L. ed. 2nd 495,\n501. 502.\n     4.\t There\t must  be   mutual   accommodation   between\ninstitutional  needs   and  constitutional  provisions.\t Not\nunwisdom but  unconstitutionality is  the touch stone. 41 L.\ned. 2d. 935, 951. 954.\n407\n     5. Several\t features of  prison administration  may  be\nundesirable  or\t  ill-advised  but  that  cannot  result  in\ncondemnation of\t the statute  as unconstitutional,  [1975] 2\nS.C.R. 24,  28; 40  L. ed.  2d 224,  235.  Courts  are\till-\nequipped to  deal with\tthe increasingly  urgent problem  of\nprison administration and reform.\n     6. Power  under section 56 can be exercised for reasons\nand considerations  which are  germane to  and carry out the\nobjective of the statute, namely, \"safe custody of prisoners\nThe following  conditions must\tbe  fulfilled  before  power\nunder section 56 is exercised:-\n     (a)  Existence   of  necessity,   as  opposed  to\tmere\nexpediency or convenience, for confining prisoners in irons,\n11 Guj. L. R. 403, 413.\n     (b) The determination of necessity to confine prisoners\nin irons  is to\t be made with reference to definite criteria\nnamely,\t state\tof  the\t prison\t or  the  character  of\t the\nprisoners.\n     (c) The  expression \"character of the prisoners\" in the\ncontext and  on a true construction is referable to past our\npresent characteristics\t or attributes\tof a  prisoner which\nhave a\trational and proximate nexus with and are germane to\nconsiderations\tregarding  safe\t custody  of  prisoners\t and\npreventing their escape.\n     (d) The determination must be made after application of\nmind to\t the peculiar  and special  characteristics of\teach\nindividual prisoner.\n     ( e ) The expressions, \"dangerous prisoners\" or 'unsafe\nprisoners\" has a definite and well recognised connotation in\nthe context of prison legislation prison literature.\n     (f) Under\tpara 399  (3)(e), special reasons for having\nrecourse to fetters are required to be fully recorded in the\nSuperintendent's journal and noted in the prisoner s history\nticket. Decisions regarding imposition of fetters have to be\nreviewed from  time to\ttime, in  order to determine whether\ntheir continued\t imposition is warranted by consideration of\nsecurity (vide para 435).\n     (g) Para  69 of the Jail Manual provides for a revision\nto the Inspector  General the  order of the Superintendent.\n     (h) Prisoner  can also  avail of  redress under para 49\nread with para 53B of the Manual.\n     (i) Determination\tof the\tSuperintendent\tis  open  to\njudicial review\t on the principles laid down in [1966] Supp.\nS.C.R. 311 and [1969] 3 S.C.R. 108.\n     (j) Power\tunder section  56 is  not punitive in nature\nbut precautionary in character.\n     8. If  the legislative  policy is\tclear and  definite,\ndiscretion vested in a body of administrators or officers to\nmake selective\tapplication of\tthe law\t does  not  infringe\nArticle 14.  A guiding\tprinciple  has\tbeen  laid  down  by\nsection 56  which has the effect of limiting the application\nof the provision to a particular category of persons, [1975]\nI S.C.R. 1, 21, 22, 23, 48-53.\n     9.\t  There\t   is\ta    presumption   in\t favour\t  of\nconstitutionality of  statutes, [1959] S.C.R. 279, 297. This\npresumption applies  with greater  force  when\tthe  statute\nunder  consideration   is  one\t dealing  with\tprisons\t and\nmaintenance of internal security in penal institutions\n408\n     10. It  is not  open to  the  petitioner  to  challenge\nsection 56  on the  ground that\t power can be exercised with\nreference to  \"the state  of prison\",  inasmuch as no action\nbased on  that part  of the  provisions is taken against the\npetitioner [1955] I S.C.R. 1284, 1295.\n     11.  There\t  is  no   provision  in   our\tConstitution\ncorresponding to  VIII Amendment  of the  U.S. Constitution,\n[1973] 2 S.C.R. 541, 548.\n     12. There\tis also\t no provision  for  substantive\t due\nprocess in the Indian\tConstitution.\n     [1950] S.C.R. 88; [1973] 2 S.C. R. 541. 548.\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION : Writ Petition Nos. 2202 and 565
\nof 1977.\n<\/p>\n
     Under Article 32 of the Constitution.\n<\/p>\n
     Y. S. Chitale (A.C.), Randhir Jain, M. Mudgal and G. K.
\nB.  Chowdhury\t(A.C.)\tfor  the  petitioner  (in  W.P.\t No.
\n2202\/77).\n<\/p>\n
     N. M.  Ghatate, S. V. Deshpande, Sumitra Bannerjee & M.
\nK. D.  Namboodiry for  the petitioner  (in W.P.\t No. 565  of
\n1977).\n<\/p>\n
     Soli J.  Sorabjee, Addl. Sol. Genl., K. N. Bhatt, R. N.
\nSachthey and  Girish Chandra  for the  petitioner  (in\tW.P.
\nNo.2202\/77)
\n     Soli J.  Sorabjee, Addl.  Sol. General,  E. C. Agarwala
\nand Girish Chandra for the respondents (in W.P. 565\/77).\n<\/p>\n
     V. M.  Tarkunde, P.  M. Parekh  for the  Intervener (in
\nW.P. No. 565\/77).\n<\/p>\n
     The following Judgments of the Court were delivered:
\n     KRISHNA IYER,  J.-The province  of prison\tjustice, the
\nconceptualization of  freedom behind  bars and\tthe role  of
\njudicial  power\t as  constitutional  sentinel  in  a  prison
\nsetting, are  of the gravest moment in a world of escalating
\ntorture by  the minions\t of State,  and in India, where this
\nvirgin area of jurisprudence is becoming painfully relevant.
\nTherefore, explicative length has been the result; and so it
\nis that,  with all  my reverence for and concurrence with my
\nlearned brethren  on the  jurisdictional and jurisprudential
\nbasics they  have indicated,  I have  preferred to  plough a
\nlonely furrow.\n<\/p>\n
The Core-questions.\n<\/p>\n
     One important  interrogation lies\tat the root of these
\ntwin writ petitions: Does a prison setting, ipso facto, out-
\nlaw the\t rule of law. lock out the judicial process from the
\njail gates  and declare\t a long\t holiday for human rights of
\nconvicts in confinement, and (to
\n409<\/span>
\nchange the  mataphor) if  there is  no total  eclipse,\twhat
\nluscent segment\t is open for judicial justice ? Three inter-
\nrelated problems  project themselves:  (i) a  jurisdictional
\ndilemma between\t ‘hands off  prisons’ and  ‘take  over\tjail
\nadministration’\t (ii)\ta  constitutional  conflict  between
\ndetentional security and inmate liberties and (iii) the role
\nof processual  and substantive\treasonableness\tin  stopping
\nbrutal jail  conditions. In such basic situations, pragmatic
\nsensitivity, belighted\tby the\tPreamble to the Constitution
\nand balancing  the vulnerability  of ‘caged’  human to State
\ntorment and  the prospect  of escape  or internal  disorder,
\nshould be the course for the court to navigate
\n     I proceed\tto lay\tbare  the  broad  facts,  critically
\nexamine.  the\tlegal  contentions  are\t resolve  the  vital
\ncontroversy which  has profound\t impact on our value system.
\nFreedom is  what Freedom  does-to the  last and\t the  least-
\nAntyodaya.\n<\/p>\n
     Two petitines-Batra and Sobraj-one Indian and the other
\nFrench, one  under death sentence and the other facing grave
\ncharges, share\ttoo different shapes, the sailing and arrows
\nof incarceratory  fortune, but instead of submitting to what
\nthey describe  as shocking  jail  injustice,  challenge,  by
\nseparate  writ\t petitions,  such   traumatic  treatment  as
\nillegal. The soul of these twin litigations is the question,
\nin  spiritual\tterms,\twhether\t the  prison  system  has  a
\nconscience in constitutional terms, whether 2 prisoner, ipso
\nfacto, forfeits\t person- hood to become a rightless slave of
\nthe State  and, in cultural terms, whether man-management of
\nprison\tsociety\t  can  operate\t its  arts  by\t‘zoological’
\nstrategies. The\t grievance of  Batra, sentenced\t to death by
\nthe Delhi  Sessions Court,  is\tagainst\t to  facto  solitary
\nconfinement, pending  his appeal,  without to jure sanction.
\nAnd the\t complaint of  Sobraj  is  against  the\t distressing
\ndisablement, by\t bar fetters,  of men behind bars especially
\nof undertrials, and that for unlimited duration, on the ipse
\ndixit of  the prison  ‘brass’. The  petitioners, seek to use
\nthe rule  of law  to force open the iron gates of Tihar Jail
\nwhere they  are now  lodged, and  the Prison  Administration
\nresists judicial action, in intra-mural matters as forbidden
\nground. relying\t on sections  30 and 56 of Prisons Act, 1894
\n(the Act,  hereafter). The  Petitioners invoke\tarticles 14,
\n21(and 19, in the case of Batra) of The Constitutional.\n<\/p>\n
     The  paramount  law.  Prison  discipline  and  judicial
\noversight.\n<\/p>\n
     The jurisdictional reach and range of this Court’s writ
\nto hold\t prison caprice\t and cruelty in constitutional leash
\nis incontestable,  but teasing intrusion into administrative
\ndiscretion is legal anathema,
\n410<\/span>
\nabsent\tbreaches  of  constitutional  rights  or  prescribed
\nprocedures. Prisoners  have enforceable\t liberties  devalued
\nmay be\tbut not\t demonetized; and  under our  basic  scheme,
\nprison Power  must bow\tbefore judge  Power  if\t fundamental
\nfreedoms are  in jeopardy. The principle is settled, as some
\nAmerican decisions have neatly put it.(‘).\n<\/p>\n
     “The Matter  of internal  management of  prisons or cor
\n     rectional institutions  is vested in and rests with the
\n     hands of  those institutions  operating under statutory
\n     authority and  their acts\tand administration of prison
\n     discipline and  over all  operation of  the institution
\n     are not subject to court super vision or control absent
\n     most- unusual  circumstances or absent a violation or a
\n     constitutional right.” But Corwin notes.(2)
\n\t  “Federal courts  have intensified  their oversight
\n     of State  penal  facilities,  reflecting  a  heightened
\n     concern with  the extent  to which the ills that plague
\n     so-called\t  correctional\t   institution-overcrowding,
\n     understaffing.   unsanitary    facilities,\t  brutality,
\n     constant fear of violence, lack of adequate medical and
\n     mental  health   care,  poor  food\t service,  intrusive
\n     correspondence   restrictions,    inhumane\t  isolation,
\n     segregation, inadequate  or non-existent rehabilitative
\n     and\/or  educational  programs,  deficient\trecreational
\n     opportunities-violate  the\t  Eight\t Amendment   ban  on
\n     ”cruel and unusual punishments.”<\/p>\n
     The hands-off’  doctrine is  based\t on  the  fallacious
\nfoundation stated in 1871 in Ruffin v. Commonwealth:\n<\/p>\n
\t  “He has,  as a  consequence of his crime, not only
\n     for feited\t his liberty,  hut all\this personal  rights
\n     except these  which the  law in its humanity accords to
\n     him. He  is for  the  time\t being,\t the  slave  of\t the
\n     State.”(8)
\nDuring the  century that  followed, the American courts have
\nwhittled away  at  the\tdoctrine  and  firstly\tdeclared  in
\nJordan(4) that\twhen the  responsible prison authorities….\n<\/p><\/blockquote>\n
have abandoned elemental con-\n<\/p>\n
     (1) Federal  Reporter 2d.\tSeries, Vol.  386,  p.\t684;
\nDonnel Douglas v. Maurice H. Sigler.\n<\/p>\n
     (2) Supplement  to Edward S. Corwin’s. The Constitution
\np. 245.\n<\/p>\n
     (3) 62 Vs . (21 Gratt) 790, 796 (1871)
\n     (4) 257  Fed. Suppl.  674 Jordan  l.. Fitzharris (N. D.
\nCal. 1966)
\n411<\/span>
\ncepts of  decency by  permitting conditions  to prevail of a
\nshocking and  debased\tnature.,   the courts must intervene
\npromptly  to   restore\tthe  primal  rules  of\ta  civilized
\ncommunity ill accord with the mandate of the Constitution of
\nthe United States.\n<\/p>\n
     In Coffin\tV.  Reichard  the  court  was  persuaded  to
\nintervene when,\t while lawfully\t in custody  a\tprisoner  is
\ndeprived of  some right\t the B,\t loss  of  which  makes\t his
\nimprisonment more burdensome than the law permits:\n<\/p>\n
\t  “When a  man, possesses  a substantial  right, the
\n     Courts will be diligent in finding a way to protect it.
\n     The fact  that a  person is  legally in prison does not
\n     prevent the  use of  habeas corpus to protect his other
\n     inherent rights.<\/p><\/blockquote>\n
     In John  v.Dys, the  (Court again\theld  it  preferable
\n“that a\t potentially dangerous\tindividual be  set free than
\nthe least  degree of   and  impairment of an   individuals’s
\nbasic  constitutional\trights\tbe   permitted.\t Thus,\t the
\nconstitutionally  of   imprisonment,   its   duration,\t and
\nconditions  Can\t be  validity  tested  by  means  of  habeas
\ncorpus.\n<\/p>\n
     The harshest  blow to the old `hands-off’ doctrines was
\nstruck by   Manree  v. Pepa,  365 US  167, 5  L.Ed. 2d,, 492
\n(1961).\n<\/p>\n
     Where the\tcourt insisted\ton “civilized\tstandards of
\n     humane decency”  and interdicted the subhuman condition
\n     which could only serve to destroy completely the spirit
\n     and undermine the sanity of the prisoner.\n<\/p>\n
     By l 975, the United states Supreme Court sustained the
\nindubitable proposition\t that constitutional  rights did not
\ndesert convicts\t but dwindled in scope. A few sharp passages
\nfrom Eve Pall(1) opinions and some telling observations from
\nCharles Wolff(2)  nail the  argument the prisioners the non-
\npersons.\n<\/p>\n
     Mr. Justice  Steward. who\tdelivered the opinion of the
\nCourt in  Eve  Pell  observed  “Courts\tcannot,\t of  course,
\nabdicate their\tconstitutional responsibility  to  delineate
\nand  protect  fundamental  liberties.  But  when  the  issue
\ninvolves a  regulation limiting\t one  of  several  means  of
\ncommunication by  an inmate,  the  institutional  objectives
\nfurthered by  that regulation  and the\tmeasure of  judicial
\ndeference owed\tto corrections officials in their attempt to
\nserve these  interests are  relevant in gauging the validity
\nof the regulation.”\n<\/p>\n
     (1) 417 US 817 41 Ed. 2d 495.\n<\/p>\n
     (2) 41 L. Ed. 2d. 935.\n<\/p>\n
10-526SCI\/78
\n412<\/span>
\n     Mr. Justice  Douglas. in  his dissenting  view,  stated
\n‘prisioners   are    still   ‘persons’\t entitled   to\t all
\nconstitutional\trights\t unless\t their\t liberty  has\tbeen
\nconstitutional by  curtailed by procedures that satisfy\t all
\nthe requirements  of due process, (emphasis, added).\n<\/p>\n
     In the  later case\t of charles  Wolff, the\t court\tmade
\nemphatic  statements   driving\thome  the  same\t point.\t For
\ninstance, Mr.  Justice\tWhite,\twho  spoke  for\t the  court,
\nobserved: “Lawful imprisonment necessarily makes unavailable
\nmany.  rights\tand  privileges\t  of  the  ordinary  citizen
\nretraction in  by the  considerations underlying  our  penal
\nsystem.\t But   though  his   rights  may  be  diminished  by
\nenvironment,\t prisoner  is\tnot   wholly   stripped\t  of
\nconstitutional protections  when he is imprisoned for crime.
\nThere is  no` iron  Curtain drawn  between the Constitutions
\nand the\t prisons of  this country,  .. In  sum there must be
\nmutual\taccommodation\tbetween\t institutional\t needs\t and
\nobjectives and\tthe provisions\tof the Constitution that are
\nof general application.\n<\/p>\n
     Mr. Justice  Marshall expressed  himself explicitly  “I
\nhave previously stated my view that a prisoner does not shed
\nhis basic  constitutional rights  at the  prison Gate, and I
\nfully support  the court’s  holding  that  the\tinterest  of
\ninmates is  freedom from imposition of serious discipline is
\na liberty’ entitled to due process protection.”\n<\/p>\n
     Mr.  Justice  Douglas,  again  a  dissenter,  asserted:
\n“Every prisoner’s  liberty i.e., of course, circumscribed by
\nthe very  fact of  his confinement,  but his interest in the
\nlimited\t liberty   left\t to   him  is  then  only  the\tmore
\nsubstantial. Conviction\t of a  crime does  not render  one a
\nnonperson whose\t rights are\tsubject to the within of the
\nprison\tadministration,\t  and  therefore,   the\t  imposition
\nof any\tserious punishment within the prison system requires
\nprocedural safeguards of course, a bearing
\n need  not be  held before  a prisoner\tis subjected to some
\nminor deprivation,  such as  an evening’s loss of television
\nprivileges. Placement  in solitary  confinement, however, is
\nnot in that category”.\n<\/p>\n
     I\t may   now   crystalise\t  this\t legal\t discussion.
\nDisciplinary autonomy,\tin the\thands of  mayhem- happy jail
\nstaffers, may  harry human  rights and the walis from behind
\nthe high  walis will  not easily  break through\t the  sound-
\nproof, night-proof barrier to awaken the judges’ writ juris-
\ndiction. So,  it  follows  that\t activist  legal  aid  as  a
\npipeline to  carry to  the court  the breaches of prisoners’
\nbasic rights  is a  radical humanist concomitant of the rule
\nof prison  law.\t And  in  our  constitutional  order  it  is
\naxiomatic that\tthe  prison  laws  do  not  swallow  up\t the
\nfundamental rights  of the legally unfree, and, as sentinels
\non the\tqui vive,  courts will\tguard Freedom  behind  bars,
\ntampered, of course, by environmental realism but intolerant
\nof torture by executive echelons. The policy
\n413<\/span>
\n     Of the  law and the paramountcy of the constitution are
\nbeyond\t purchase    by\t  authoritarians   glibly   invoking
\n‘dangerousness’ of inmates and peace in prisons.\n<\/p>\n
     If judicial  realism is  not to be jettisoned, judicial
\nactivism must  censor the  argument of\tunaccountable prison
\nautonomy.\n<\/p>\n
     ‘Dangerousness’  as  a  cover  for\t police\t and  prison
\natrocities is  not unusual,  as a recent judicial enquiry by
\nMr. Justice Ismail in a ‘Tamil Nadu prison indicates:\n<\/p>\n
\t  “The black  hole of  Calcutta is  not a historical
\n     past but  a  present  reality.  The  Report  finds\t the
\n     detenus were  deliberately lodged\tin the\tnineth block
\n     which was previously occupied by leprosy prisoners.
\n\t  on the  night of  February 2,\t “there were brutal,
\n     merciless and  savage beatings  of the  detenus in\t the
\n     nineth block”, earlier in the afternoon, the Chief Head
\n     Warder went  to the  block and  noted down the names of
\n     the detenus and the cells in which they were locked up.
\n     The exercise  was undertaken. The Judge finds that “the
\n     beating of\t the detenus that took place on the night of
\n     February 2,  1976 was  a premeditated,  pre-planned and
\n     deliberate one  and not  undertaken on  the spur of the
\n     moment either  because of\tany provocation\t  offered by
\n     the detenus  to go\t into the  cells as contended by the
\n     jail officials”\n<\/p><\/blockquote>\n
\t  (other lurid\tjudicial reports  from other  States
\n     also have appeared.\n<\/p><\/blockquote>\n
     After   all,    though   the   power   vests   in\t the
\nSuperintendent, it  is triggered  by the  guard. We  cannot,
\nwithout check  permit human  freedom to\t be gouged  by\tjail
\nguards under guise of ‘encounters’ and ‘escape attempts’.\n<\/p><\/blockquote>\n
     Mr. Justice  Douglas stressed  this aspect\t in Wolff v.\n<\/p><\/blockquote>\n
Mcdonnel: (1)
\n\t  .We have  made progress  since then  but  the\t old
\n     tradition\tstill  lingers.\t Just  recently.  an  entire
\n     prison system  of one state was held as inhumane .. The
\n     lesson to\tbe learned  is that  courts cannot  blithely
\n     defer to the supposed expertise of prison official when
\n     it comes to the constitutional rights. of inmates.
\n\t  “Prisoners often have their privilege revoked, are
\n     denied the\t right of access to counsel, sit in solitary
\n     or maximum\t security or less accrued ‘good time’ on the
\n     basis of a single,
\n     (1) 41 L. Ed. 2d. 935 at p.976
\n414<\/span>
\n     unreviewed report\tof a guard. When the Courts deter to
\n     administrative discretion,\t it is\tthis guard  to\twhom
\n     they. delegate  the final\tword  on  reasonable  Prison
\n     Practices. This  is the  central evil in prison…. the
\n     unreviewed discretion  granted to\tthe  poorly  trained
\n     personnel who deal directly with persons.”
\n     If wars  are too  important to be left to the generals,
\nsurely prisoners’  rights are too precious to be left to the
\njailors. We  must add  a caveat. Where prison torture is the
\ncredible charge and human person the potential casualty, the
\nbenefit of  scepticism justly  belongs to  the\tindividual’s
\nphysical-mental immunity,  not to  the\t–  hyper-sensitivity
\nabout safe custody.\n<\/p>\n
Some  welcome  features.:  Community  based  litigation\t and
\nparticipative justice’, Supportive of democratic legality.\n<\/p>\n
     A few  special forensic  features\tof  the\t proceedings
\nbefore us have seminal significance and I adv. rt to them in
\nas helpful  factors in\tthe progressive\t development of\t the
\nlegal process.\n<\/p>\n
     The  essence   of\tthis  class  of\t litigation  is\t not
\nadjudication  on   particular\tgrievances   of\t  individual
\nprisoners but  broad delivery  of social  justice.  It\tgoes
\nbeyond\t mere\tmoral\tweight-lifting\t out.\tcase-by-case
\ncorrection but\ttranscend into\tforensic humanisation  of  a
\nharsh legal   legacy which has for long hidden from judicial
\nview lt\t is the necessitous task of this Court, when invited
\nappropriately, to  adventure even into fresh areas of as any
\nand injustice and to inject humane constitutional ethic into
\nimperial statutory  survivals, especially  when the (prison)
\nExecutive  thirty  years  after\t Independence,\tdefends\t the
\nalleged wrong  as right and the Legislatures, whose members?
\nover the  decades,  are\t not  altogether  strangers  to\t the
\nhurtful features  of jails,  are perhaps  pre-occupied\twith
\nmore  popular\tbusiness  than\t concern  for  the  detained
\nderelicts  who\t are  a\t  scattered,  voiceless,   noiseless
\nminority.\n<\/p>\n
     Although neither  of these\t writ petitions\t is a  class
\naction in  the strict  sense, each is representative of many
\nother similar  cases  I\t think\tthese  ‘martyr’\t litigations
\npossess\t a   beneficient  potency   beyond  the\t  individual
\nlitigant,   and\t  their\t  consideration\t  on   the   widely-
\nrepresentative basis  strengthens the  rule  of\t law.  Class
\nactions. community  litigations, representative\t suits, test
\ncases and  public interest proceedings are in advance on our
\ntraditional court  processes and  faster people’s  vicarious
\ninvolvement in\tour justice system with a broadbased concept
\nof locus standi so necessary in a democracy where the masses
\narein many senses weak.\n<\/p>\n
415<\/span><\/p>\n
     Another hopeful  processual feature  falls for  notice.
\nCitizens for  Democracy, an  organisation operating  in\t the
\nfield of  human rights, has been allowed to intervene in the
\nsobraj case and, on its behalf, Shri Tarkunde has made legal
\nsubmissions  fuelled   by  passion  for\t jail  reforms.\t The
\nintervention of\t social welfare\t organisation in  litigative
\nprocesses pregnant  with wider\timplications  is  a  healthy
\nmediation between  the People  and the\tRule of\t law. Wisely
\npermitted,  participative  justice,  promoted  through\tmass
\nbased organizations  and public\t bodies with special concern
\nseeking to  intervene, has  a democratic  potential for\t the
\nlittle men  and the  law. We  have  essayed  as\t length\t the
\nsolutions to  the  issues  realised  and  heard\t parties  ad
\nlibitum because\t of their  gravity and\tnovelty.. although a
\ncapsulated discussion  might make-do. A short cut is a wrong
\ncut where people’s justice is at stake.\n<\/p>\n
This Court’s role as catalyst of prison justice.\n<\/p>\n
     It in an unhappy reflection, charged With pessimism and
\nrealism, that  Governments have\t come and  Governments\thave
\ngone but  the\tjails largely manage to preserve the macabre
\nheritage and  ignore the  mahatma’s message.  And this, with
\nall the\t reform\t bruited  about\t for  decades  and  personal
\nexperience of statesman in state power. The learned Attorney
\nGeneral at a very early stage of one of these cases, and the
\nlearned\t Additional   Solicitor\t General  as  well  as\tShri
\nTarkunde in  the course of their submissions, did state that
\nthis Court’s  reformist response  to the  challenges  raised
\nhere may go a long way in catalysing those humane changes in
\nthe prison  laws and  practices already high on the national
\nagenda of  Government.\tDisturbing  Commission\tReports\t and
\npublic proceedings  put to  shame prison  justice and  shake
\npeople’s faith\tin the\tfirm fighting  functionalism of\t the
\njudicial process.  So I\t have stretched\t the canvas wide and
\ncounsel have copiously helped the Court.\n<\/p>\n
Prison decency and judicial responsibility
\n     What penitentiary\treforms will promote rapport between
\ncurrent prison\tpractices and  constitutional norms  ? Basic
\nprison decency\tis an  aspect of  criminal justice.  And the
\njudiciary has  a constituency of which prisoners, ordered in
\nby court sentence, are a numberous part.\n<\/p>\n
     This vicarious  responsibility has\t induced the Supreme
\nCourt of the United stats to observe.\n<\/p>\n
\t  “ln a\t series of  decisions this  Court held\tthat
\n     even though  the Governmental purpose be legitimate and
\n     subs -tantial, that purpose cannot b,- pursued by means
\n     that
\n416<\/span>
\n     broadly Stifle  fundamental personal liberties when the
\n     end can  be more  narrowly\t achieved.  The\t breadth  of
\n     legislative abridgement  must he viewed in the light of
\n     less  drastic   means  for\t achieving  the\t same  basic
\n     purpose.” (Shelton\t v. Tucker,  364 US  476  (1950)  at
\n     p.468)(1).\n<\/p><\/blockquote>\n
     Karuna is a component of jail Justice.<\/p><\/blockquote>\n
     Ex. post  facto  justification  of\t prison\t cruelty  as
\nprevention  of\tdisorder  and  escape  is  often  a  dubious
\nallegation. Another factor often forgotten, while justifying
\nharsh  treatment   of  prisioners,   is\t the  philosophy  of
\nrehabilitation. The  basis is  that the\t custodial staff can
\nmake a\tsignificant contribution  by enforcing\tthe rule  of
\nprison law  and preparing  convicts for\t a law-abiding\tlife
\nafter their  release-  mainstreaming,  as  it  is  sometimes
\ncalled.\n<\/p>\n
     Mr. Justice,  Stewart in  Pall  adverted  to  the\ttwin
\nobjectives of  imprisonment. ‘An  important function  of the
\ncorrection system is the deterrence of crime. The premise is
\nthat by\t confining criminal  L 1)  offenders in\t a  facility
\nwhere  they  are  isolated  from  the  rest  of\t society,  a
\ncondition that most people presumably find undesirable, they
\nand others  will  be  deterred\tfrom  committing  additional
\ncriminal offences.  This isolation, of course, also serves a
\nprotective function by quarantining criminal offenders for a
\ngiven period  of time while, it is hoped, the rehabilitative
\nprocesses of  the corrections  system [\t work to correct the
\noffender’s demonstrated\t criminal  proclivity.\tThus,  since
\nmost offenders\twill eventually\t return to  society, another
\nparamount  objective   of  the\tcorrections  system  is\t the
\nrehabilitation of  those committed  to its custody. Finally,
\ncentral to  all other corrections goals is the institutional
\nconsideration of  internal security  within the\t corrections
\nfacilities  themselves.\t  It  is   in  the  light  of  these
\nlegitimate  penal   objectives\tthat  a\t court\tmust  assess
\nchallenges  to\t prison\t regulations   based   on   asserted
\nconstitutional rights of prisoners. ‘
\n     The benign\t purpose behind\t deprivation of\t freedom  of
\nlocomotion and\texpression is  habilitation of\tthe criminal
\ninto good  behavior, ensuring  social defence on his release
\ninto the  community. This rationale is subverted by torture-
\nsome treatment,\t antagonism and\t bitterness which  spoil the
\ncorrectional process. ‘Fair treatment…. ..will enhance the
\nchance of  rehabilitation by reactions to arbitrariness’ (33
\nL. Ed. 2d. 484).\n<\/p>\n
     Rehabilitation  effort  as\t a  necessary  component  of
\nincarceration is  part of the Indian criminal justice system
\nas also of the United states.\n<\/p>\n
     (1) See  Substantive Criminal  Law by Cherif Bassiouni,
\np. 115
\n417<\/span>
\nFor  instance?\t this\tcorrectional   attitude\t  has\tbeen
\nincorporated as\t a  A  standard\t by  the  National  Advisory
\nCommission on Criminal Justice Standards and Goals: (1)
\n\t  “.. A\t rehabilitative purpose\t is or\tought to  be
\n     implicit  in  every  sentence  of\tan  offender  unless
\n     ordered otherwise by the sentencing court.”
\n     In Mohammad  Giasuddin v.\tstate of  A.P.(1) this Court
\nstrongly endorsed the importance of the hospital setting and
\nthe therapeutic goal of imprisonment:\n<\/p>\n
\t  “Progressive criminologists  across the world will
\n     every that\t the  Ghanaian\tdiagnosis  of  offenders  as
\n     patients and  his conception  of prisons  as hospitals-
\n     mental and\t moral- is  the\t key  to  the  pathology  of
\n     delinquency and  the thera- putic role of ‘punishment’.
\n     The whole\tman is\ta healthy  man and  very man is born
\n     good. Criminality\tis  a  curable\tdeviance.  .  .\t Our
\n     prisons should  be correctional  houses, not cruel iron
\n     aching the\t soul.. ‘This  nation  cannot-\tand,  if  it
\n     remembers\tits   incarcerated   leaders   and   freedom
\n     fighters-will  not\t but  revolutionize  the  conditions
\n     inside that grim little world. We make these persistent
\n     observa tions  only to  drive home\t the  imperative  of
\n     freedom-that  its\t deprivation,  lay   the  state,  is
\n     validated only  by a  plan to  make the  sentence\tmore
\n     worthy  of\t  that\tbirthright.  There  is\ta  spiritual
\n     dimensional to the first page of our Constitution which
\n     projects into penology.”\n<\/p><\/blockquote>\n
All this  adds up  to the important proposition that it is a
\ncrime of  punishment to\t further torture a person undergoing
\nimprisonment, as  the remedy  aggravates the malady and thus
\ncases to  be a\treasonable justification for confiscation of
\npersonal freedom  and  is  arbitrary  because  it  is  blind
\naction not  geared to  the goal\t of social defence, which is
\none of\tthe primary  ends of  imprisonment. It\treversed the
\nprocess\t by   manufacturing  worse  animals  when  they\t are
\nreleased into  the mainstream of society. Roger G. Lanphear,
\nin a  recent study.  has quoted\t a  telling  letter  from  a
\nprisoner which makes the poignant point.(3)
\n     Dear Mrs. Stender:\n<\/p>\n
     (1)  61, pg.  43: Quoted in Freedom from Crime by Roger
\n\t  Lanphear, J. r). (Nellore Publishing Company).
\n     (2)  1977 (3) S. C. C. 287.\n<\/p>\n
     (3)  Regers C..  Lamphear Freedom From Crime through TM\n<\/p>\n
\t  – Sidhi Progress pp. 46-47.\n<\/p>\n
418<\/span><\/p>\n
\t  You cannot  rehabilitate a  man through  brutality
\n     and disrespect.  Regardless of  the  crime\t a  man\t may
\n     commit, he\t still is a human being and has feeling. And
\n     the main reason most inmates in prison today disrespect
\n     their keepers  is because they  themselves (the inmates
\n     are  disrespected\t and  arr  not\ttreated\t like  human
\n     being;.. I\t myself have  witnessed brutal\tattacks upon
\n     inmates and have suffered a few myself, uncalled for. I
\n     can understand  a guard  or guards\t an  restraining  an
\n     inmate if\the becomes  violent. But  many a  time\tthis
\n     restraining has turned into a brutal beating. Does this
\n     type   of\t  treatment   bring    About   respect\t and
\n     rehabilitation ?  No. It  only instills   hostility and
\n     causes alienation\ttoward the prison officials from the
\n     inmate or inmates involved.\n<\/p>\n
\t  If you  treat a  man like an animal, then you must
\n     expect him\t to act like one. For every action, there is
\n     a reaction. This is only human nature. And in order for
\n     an inmate\tto act like a human being you must trust him
\n     as\t  Such. Treating  him like  an animal  will only get
\n     negative results  from him.  You can’t spit in his face
\n     and expect him to smile and thank you. I have seen this
\n     happen also.  There is  a large  gap between the inmate
\n     and prison\t officials. And\t it will  continue  to\tgrow
\n     untill the\t prison officials learn that an inmate is no
\n     different than  them, only\t in the\t sense that  he\t has
\n     broken a  law. He\tstill has  feelings, and  he’S still
\n     human being. And until the big wheels in Sacramento and
\n     the  personel   inside  the  prisons  start  practicing
\n     rehabilitation, and  stop practising  zoology, then the
\n     can expect continuous chaos and trouble between inmates
\n     and officials.\n<\/p>\n
\t\t\t\t\t\tLewis Moore”\n<\/p>\n
     We must heed the wholesome counsel of the British Royal
\nCom mission(l) :\n<\/p>\n
\t  “If the  suggestion were that, because of enormity
\n     of the  crime,  murderers\tought  to  be  subjected  to
\n     special rigorous  treatment, this\twould run counter to
\n     the “accepted principle of modern prison administration
\n     that imprisonment\tis itself The penalty and that it is
\n     not the  function of  the Prison  as authorities to add
\n     further penalties\tday by day by punitive conditions of
\n     discipline, labour diet and general treatment.
\n     (1) Royal Commission on Capital Punishment.<\/p><\/blockquote>\n
419<\/span><\/p>\n
     The  relevance  of\t the  though  that  accentuation  of
\ninjury, beyond\t imprisonment, may be counter-productive of’
\nthe therapeutic\t objective of\t  the penal  system will  be
\nclear when we test such infliction on the touchstone of Art.
\n19  and\t  the,\treasonableness’\t of  the  action.  In  depth
\napplication of these seminal aspects may be considered after
\nunfolding, the\tfact-situations in the two cases. Suffice it
\nto  say\t that,\tso  long  as  judges  are  invigorators\t and
\nenforcers of  constitutionality and  performance auditors or
\nlegality, and  convicts serve  terms in\t that grim microcosm
\ncalled prison  bu the  mandete of  the court,  a  continuing
\ninstitutional responsibility  vests in the system to moniter
\nin  the\t  incarceratory\t  process   and\t  prevent   security
\n‘excesses’. Jailors  are bound by the rule of law and cannot
\ninflict supplementary  sentences under\tdisguises or  defeat
\nthe primary  purposes of imprisonment. additional torture by
\nforced cellular solitude or iron immobilisation- that is the
\ncomplaint here-stands  the  peril  of  being  shot  down  as
\nlunreasonable,\t arbitary    and    is\t  perilously\tnear
\nunconstitutionality.\n<\/p>\n
Court’s interpretative function when faced with invalidatory
\nalternative.\n<\/p>\n
     Batra puts\t in issue the constitutionality of S. 30 (2)
\nof the\tPrisons Act, 1894 (the Act, for short) while Sobhraj
\nimpugns the vires of S.56. But the Court does not ‘rush into
\ndemolish provisions where judicial endeavour, amelioratively
\ninterpretational, may  achieved both  constitutionality\t and
\ncompassionate  resurrection.   The  salutary   strategy\t  of
\nsustaining  the\t validity  of  the  law\t and  softening\t its
\napplication was,  with lovely  dexterity adopted by Sri Soli
\nSorabjee appearing  for the State. The semantic technique of
\nupdating the  living sense  of dated legislation isk, in our
\nview,  perfectly   legitimated,\t especially   when,   in   a
\ndeveloping country  like ours,\tthe corpus juirs is, in some
\nmeasure a raj hand-over.\n<\/p>\n
     Parenthetically, we may express surprise that, going by
\nthe Punjab  Jail Manual\t (1975), the  politically  notorious
\nRegulation III\tof 1818 and ban on Gandhi cap’ still survive
\nin Free\t India’s Corpus\t Juris, what  with all the sound and
\nfury against  detention without trial and national homage to
\nGandhiji.\n<\/p>\n
     To meet  the needs\t of India  today, the imperatives of
\nIndependence   desiderate   a\tcreatives   role   for\t the
\nCourt in  interpretation and  application,  especially\twhen
\nenactments from\t the imperial  mint govern. Words grown with
\nthe world. that is the dynamics of semantics.\n<\/p>\n
     Read Dickerson (1) has suggested :\n<\/p>\n
\t  “the Courts  are at  least free  from\t control  by
\n     original legislatures.  Courts, for  one, has contended
\n     that, consistently\t with the ascertained meaning of the
\n     statute, a court
\n     (1) The  Interpretation and Application of Statutes, p.\n<\/p>\n
245.
\n420<\/span>
\n     should he\table to\t shake off  the dust of the past and
\n     plant its feet firmly in the present.\n<\/p>\n
\t  The  legislature  which  passed  the\tstatute\t has
\n     adjourned\tand   its  members   gone  home\t  to   their
\n     constituents or  to a long rest from all law making. So
\n     why bother\t about what they intended or what they would
\n     have done\t? Better  be prophetic\tthan archaeological,
\n     better deal  with the future than with the past, better
\n     pay a  decent respect  for a  future  legislature\tthan
\n     stand in  awe of  one that has folded up its papers and
\n     joined its\t friends at  the  country  club\t or  in\t the
\n     cemetery
\n\t       Let the courts deliberate on what the present
\n     or future\tlegislature would  do after  it had read the
\n     courts opinion, after the situation has been explained,
\n     after the\tcourt has  exhibited the whole fabric of the
\n     law into  which this  particular bit of legislation had
\n     to be adjusted.”\n<\/p>\n
     Constitutional deference  to the  Legislature  and\t the
\ndemocratic assumption  that people’s  representative express
\nthe wisdom  of the community lead courts into interpretation
\nof statutes  Which preserves and sustain the validity of the
\nprovision. That\t is to\tsay, courts  must, with\t intelligent
\nimagination,  inform   themselves  of\tthe  values  of\t the
\nConstitution and,” with functional flexibility, explore\t the
\nmeaning of  meaning to adop that construction which humanely
\nconstitutionalizes the\tstatute ;11 question. Plainly stated
\nwe must\t endeavour to interpret the words in sections 30 and
\n56 of  the Prisons  Act and  the paragraphs  of’ the  Prison
\nManual in such manner that while the words belong to the old
\norder, the  sense  radiates  the  new  order.  The  luminous
\nguideline on Weems v. United states sets our sight high :\n<\/p>\n
\t  “Legislation, both statutory and constitutional is
\n     enacted, it  is true, from an experience of evils, but-
\n     its  general   language  should   not,  therefore,\t  be
\n     necessarily  confined   to\t the  form  that  civil\t had
\n     therefore,\t taken.\t Time  works  changes,\tbrings\tinto
\n     existence new  conditions and  purposes.  Therefore,  a
\n     principle, to  be\tvital,\tmust  be  capable  of  wider
\n     application than the mischief which gave it birth. This
\n     is\t peculiary  true  of  constitutions.  They  are\t not
\n     ephemeral\t enactments   designed\t to   meet   passing
\n     occasions. They  are, to use the words of Chief Justice
\n     Marshall, “designed  to approach  immortality as nearly
\n     as human  institutions can\t approach it”. The future is
\n     their care,  and provisions  for events of good and bad
\n     tendencies of which no prophecy
\n     (1) 54 L. ed. 801 (Weems v. United States)
\n421<\/span>
\n     can be  made. In  the application\tof  a  constitution,
\n     there fore,  our contemplation  cannot be\tonly of what
\n     has been,\tbut of\twhat may  be. Under any other rule a
\n     constitution would\t indeed be as easy of application as
\n     it would  be. Under any other rule a constitution would
\n     indeed be\tas easy\t of  applications  as  it  would  be
\n     deficient in efficacy and power. Its general principles
\n     would have\t little value, and be converted by precedent
\n     into impotent and lifeless formulas. Rights declared in
\n     the words\tmight be  lost in reality. And this has been
\n     recognised.   The\t meaning   and\t vitality   of\t the
\n     Constitution  have\t  developed   against\tnarrow\t and
\n     restrictive construction.”\n<\/p><\/blockquote>\n
     A note  in Harvard Law Review(1) commenting on Weems v.\n<\/p><\/blockquote>\n
United States urges such a progressive construction:\n<\/p>\n
\t  “The inhibition  of the  infliction of  ‘cruel and
\n     unusual punishment’ first appears in the Bill of Rights
\n     of 1680,  at a time when the humanity-of Judge Jeffreys
\n     of Bloody\tAssizes’ fame  and of  his fellows under the
\n     Stuarts, loomed  large in\tthe popular mind. … In the
\n     eighth Amendment  to the  Constitution  of\t the  United
\n     States the\t same prohibition is found…. (Courts) have
\n     held that\twhatever is now considered cruel and unusual
\n     in fact  is forbidden  by\tit.  Another  difference  of
\n     interpretation intersects\tthese  divergent  views\t and
\n     separates the  Courts which  confine the  words to\t the
\n     kind or  mode of punishment from those who extend their
\n     meaning to include as well its degree or severity. Tn a
\n     recent case  concerning such a provision in the Bill of
\n     Rights of\tthe Philippine\tIslands, which\thas the same
\n     meaning was  the Eighth Amendment, the Supreme Court of
\n     United States,  committing itself\tto the\tmost liberal
\n     interpretation, not  only\theld  that  the\t clause\t was
\n     concerned with  the degree\t of punishment, but approved
\n     of the  extension of  its scope  to keep  pace with The
\n     increasing enlightenment  of public  opinion (Weems  v.
\n     United States, 217 US, 349. It is, indeed, difficult to
\n     believe that  a law  passed in the twentieth century is
\n     aimed solely  at abuses which became almost unknown two
\n     hundred years  before, even though it is an exact trans
\n     script of\tan old Bill. And excessive punishment may be
\n     quite as  had as  punishment cruel\t in its very nature.
\n     The fear of judicial intermeddling voiced by one of the
\n     dissent-\n<\/p><\/blockquote>\n
     (1) Hervard Law Review, Vol. 24 (1910-II) p. 54-55.\n<\/p><\/blockquote>\n
422<\/span><\/p>\n
     ing judges\t seems scarcely\t warranted, for the power to
\n     prevent disproportionate  punishment is to be exercised
\n     only when\tthe punishment\tshocks public  feeling. With
\n     thin limitation,  the progressive\tconstruction of this
\n     clause laid down by this case seems desirable.”\n<\/p><\/blockquote>\n
\t\t\t\t\t    (emphasis added)
\n     The jurisprudence of statutory construction, especially
\nwhen vigorous  break with the past and smooth reconciliation
\nwith a\tradical constitution  value-set are the object, uses
\nthe art\t of reading  down  and\treading\t wide,\tas  part  of
\ninterpretational  engineering.\t Judges\t are  the  mediators
\nbetween the  social tenses.  This Court\t in R.\tL. Arora  v.\n<\/p><\/blockquote>\n
State of  Uttar Pradesh\t & Ors(1)  and in  a host  of  other
\ncases, has  lent precedential  support for  this proposition
\nwhere that  process renders  a statute\tconstitutional.\t The
\nlearned Additional  Solicitor General has urged upon us that
\nthe Prisons  Act (Sections  30 and  56) can  be\t vehicle  of
\nenlightened value if we pour into seemingly fossilized words
\na freshness  of sense.\t“It is\twell settled that if certain
\nprovisions of  law construed  in one  way will be consistent
\nwith the  Constitution, and  if another interpretation would
\nrender them unconstitutional, the Court would lean in favour
\nof the former construction.”\n<\/p>\n
     To put  the rule beyond doubt, interstitial legislation
\nthrough interpretation\tis a  life-process of  the  law\t and
\njudges are party to it. In the present case we are persuaded
\nto adopt  this semantic\t readjustment\tso as  to obviate  a
\nlegicidal sequel.  A validation-orient\tapproach becomes the
\nphilosophy of  statutory construction,\tas we will presently
\nexplain by application.\n<\/p>\n
The two\t problems and our basic approach
\n     The specific questions before us are whether the quasi-
\nsolitudinous cellular  custody of  sorts imposed on Batra is
\nimplicit in  his death sentence and otherwise valid and. the
\nheavy irons  forced on the per son of Sobhraj still standing
\nhis  trial   comport  with   our  constitutional  guarantees
\nqualified and  curtailed by the prison environs. Necessarily
\nour perspective\t has to\t be humanistic-juristic becoming the
\nKaruna\t of   our   Constitution   and\t the   international
\nconsciousness on  human rights.\t Three quotes  set this tone
\nsharply. In the words of Will Durant(2): ‘It is time for all
\ngood man  to come  to the  aid of their party, whose name is
\ncivilization’. And,  more particularised  is the observation
\nof Chief Justice Warren E. Burger about what is to) be
\n\t  (1) [1964] 6 S.C.R. 784.\n<\/p>\n
\t  (2)  Will Durant’s  Article “What  Life has taught
\n\t  Me”. published  in Bhawan’ Journal, Vol. XXIV, No.
\n\t  18, April 9,1978. p. 71 at p. 72.\n<\/p>\n
423<\/span><\/p>\n
done with  an offender\tonce he\t is convicted,\tthat this is
\n‘one of\t mankind’s unsolved and largely neglected problems’.
\nAnd Winston Churchill’s choice thought and chiselled diction
\nbear repetition:\n<\/p>\n
\t  “The mood  and temper of the public with regard to
\n     the treatment of crime and criminals is one of the most
\n     unfailing tests of the civilization of any country.”\n<\/p><\/blockquote>\n
And a  clinching comment  concludes this  thought. The White
\nPaper entitled\t“People in  Prison” published by the British
\nGovernment in November, 1969, articulates a profound thought
\nin its concluding paragraph, much less true for India as for
\nthe United Kingdom:\n<\/p>\n
\t  A society that believes in the worth of individual
\n     beings can\t have the  quality of  its belief judged, at
\n     least in part, by the quality of its prison and probate
\n     services and of the resources made available to them.”\n<\/p><\/blockquote>\n
Batra facts
\n     I begin  with the\tcritical facts\tin  the\t first\twrit
\npetition. Sunil\t Batra, sentenced  to death   but struggling
\nsurvive, supplicates  pathetically that\t although his appeal
\nagainst the  death sentence  still pends he is being subject
\nto solitary  confinement which\tis contrary to the provision
\nof the\tPenal Code,  the Criminal Procedure Code, the Prison
\nAct an(l  Articles 14,\t19 and\t12 of  the Constitution. The
\nSessions Court of Delhi held him guilty of a gruesome murder
\ncompounded with robbery and awarded the capital penalty, way
\nback in January, 1977 . Until then, Batra was class prisoner
\neligible for  amenities which  made his confinement bearable
\nand  companionable.   But  once\t  the  death   penalty\t was
\npronounced, the prison superintendent promptly tore him away
\nfrom fellow  human, stripped  him of  the B class facilities
\nand locked  him up in a single cell with a small walled yard
\nattached, beyond  the view and voice of others save the jail
\nguards and  formal visitors  in discharge  of their official
\nchores and  a few  callers once hl a blue moon. The prisoner
\nfiled an  appeal against  his conviction and sentence to the
\nHigh Court,  which also heard the reference for confirmation
\nof the\tdeath sentence\tunclear sec.  395  of  the  Criminal
\nProcedure Code\t(for short,  the Code). In the meanwhile-and
\nit proved  a terribly  long while-he  was warehoused,  as it
\nwere   in   a\tsolitary   cell\t  and\tkept   substantially
\nincommunicado.\n<\/p>\n
     The quasi-solitary\t confinement was  challenged in\t the
\nHigh  Court,   perhaps\tvaguely\t  (not\tparticularising\t the
\nconstitutional infirmities of Sec. 30 of The Prisons Act and
\nthe Punjab  Jail Rules)\t but was  given short  shrift by the
\nHigh Court.  The learned  single Judge\treasoned: ‘The\tonly
\npoint for  consideration is  whether the petitioner can have
\nthe facility  as demanded  by him till the sentence of death
\nis confirmed.  By going\t through all these rules I am of the
\nclear view that he cannot
\n424<\/span>
\nbe given  the facilities  as it\t might\tlead  to  disastrous
\nconsequences. It  also becomes\tthe function of the State to
\nlook to\t the personal  safety of  such a condemned prisoner.
\nThere  is   no\tforce\tin  the\t petition  which  is  hereby
\ndismissed”. The appeal to a division bench was withdrawn and
\nthe present  writ petition  under Art. 32 was filed, n where
\nthe  lay   prisoner  urged  his\t litany\t of  woes  and\tsome
\nconstitutional generalities, later supplemented by Sri Y. S.
\nChitale as  amicus curiae.  His lurid  lot was\tpathetically
\npainted by  counsel. Grim  walls glare at him from all sides
\nnight and  day; his  food is  inserted into the room and his
\nexcretory needs\t must be fulfilled within the same space. No
\npillow to  rest his restless head, no light inside, save the
\nbulb that  burns blindly  through the night from outside. No
\nhuman face  or voice  or view  except the  warder’s constant
\ncompulsory intrusion  into the\tprisoner’s privacy  and\t the
\nroutine revolutions of officials’ visitations, punctuated by
\na few  regulated visits\t of permitted  relatives or friends,
\nwith iron  bars and peering warder’s presence in between. No
\nexercise except\t a generous  half hour, morning and evening,
\nin a  small, walled  enclosure from  where he  may do asanas
\nwere he\t yogi, do  meditation were  he sanyasi\tand practise
\ncommunion with\tNature were  he Wordsworth  or\tWhiteman  or
\nbreak down  in speechless  sorrow were he but common clay. A
\nfew books,  yes; newspapers  ? No  talk to others ? No; save
\nechoes of  one’s own  soliloquies; no sight of others except
\nthe stone  mercy  in  pathetic\tfallacy.  This\tsegregation,
\nnotwithstanding\t the   prescribed   category   of   visitors
\npermitted and  censored letters allowed, argues Sri Chitale,
\nis violation   the primordial gregariousness which, from the
\nbeginning of  the species,  has been man’s social milieu and
\nso constitutes\ta  psychic  trauma,  when  prolonged  beyond
\nyears, too  torturesome for  tears, even in our ancient land
\nof silent  mystics and\tlonely cavemen.\t For the  great few,
\nsolitude sometimes  is best  society but  for the commonalty
\nthe wages  of awesome seculsion, if spread over long spells,
\nis insanity. For the fevered life of the modern man, more so
\nunder  the  stress  of\tsentence,  solitude  is\t terror\t and
\ncellular vacuum\t horror. Just think not of the contemplative
\nsaint but  of the  run of  the mill  mortal. Cage his lonely
\nperson and  monitor his\t mind  and  mood  with\ta  sensitive
\nunderstanding. Then  you know that moments bear slow malice;
\nhours hang  heavy with\tennui; days  drop dead,\t and  lonely
\nweeks wear  a vicious  stillness; for  sure. weary months or
\nsingleness, with monotonous nights, made more hurtful by the
\nswarms of  mosquitoes singing  and ‘stinging,  and  in\tmany
\ncells.\tby  the\t blood-thirsty\tarmies\tof  bugs,  invisibly
\nemerging from  nocturnal nowhere, to hide and bite, make for
\nlunacy. Time  cries halt  and the victim wonders, is death a
\nbetter deal? Such is the torture and tension of the solitary
\ncell, picturised by counsel.\n<\/p>\n
425<\/span><\/p>\n
     The Tihar\tJail is\t the scene  and a  glimpse of  it is
\ngood. Law  is not  a brooding  omnipresence in the sky but a
\nbehavioural omnipotence on the earth, a do-don’t calculus of
\nprincipled pragmatism.\tSo, any\t discussion  of\t prison\t law
\nproblems must  be  preceded  by\t a  feel  of  the  cell\t and
\nsurroundings. For  this reason\twe now set out the inspector
\nnotes left  by Chief Justice Beg, who visited the ‘condemned
\ncell’ along its two brothers on the bench:\n<\/p>\n
\t  “We inspected\t the cell  in which the prisoner was
\n     con fined.\t We were  relieved to  find that  conditions
\n     there did\tnot correspond to the picture which eloquent
\n     arguments of  his counsel\tbefore us conjured up in our
\n     minds. We had been led to believe that the prisoner was
\n     kept in  some kind\t of a dungeon with only a small hole
\n     through which light could penetrate only when there was
\n     enough sunshine.  It was  true that  the  prisoner\t was
\n     living in a room with a cemented floor and with no bed,
\n     furniture, or  windows in\tit. The\t light came  from  a
\n     ventilator with  iron bars\t on the\t wall at the back of
\n     the room  and the\twide gate of iron bars in front. The
\n     light was,\t however, enough. It is also true that there
\n     was no  separate room for the petitioner to take a bath
\n     in or to answer calls of nature. But in this very room,
\n     the site  of which\t given on a diagram furnished by the
\n     jail authorities,\twater  and  sanitary  fittings\twere
\n     installed in  one corner  of the  room. In front of the
\n     room there\t was a\tsmall verandah\twith pakka walls and
\n     iron gates\t separating each  side of  it from a similar
\n     verandah in  front of  an adjoining  cell. The entrance
\n     into this\tverandah was  also through  a\tsimilar iron
\n     gate. The inner room in which the prisoner was confined
\n     had also  a gate of iron bars. All gates were with iron
\n     bars on  frames so\t that  one  could  see\tacross\tthem
\n     through the  spaces between  the bars.  All these gates
\n     were locked.  We learnt that the petitioner was able to
\n     come into\tthe verandah at certain times of the day. At
\n     that  time\t  only\the   could  communicate\t with  other
\n     similarly kept  prisoners whom he could see and talk to
\n     through  the   iron  bars.\t In  other  words,  for\t all
\n     practical\tpurposes,   it\twas   a\t kind\tof  solitary
\n     confinement.\n<\/p><\/blockquote>\n
\t  We did  not see a separate guard for each prisoner
\n     in the  row of  cells for prisoners sentenced to death.
\n     All these\tprisoners were certainly segregated and kept
\n     apart. But\t it is difficult to determine, without going
\n     into the  meaning of  ‘solitary confinement’. as a term
\n     of law  whether the  conditions in which the petitioner
\n     was kept amounted to ‘solitary
\n426<\/span>
\n     confinement’. Probably, if small windows with iron bars
\n     were  provided   between  one  cell  and  another,\t the
\n     prisoners could  talk to  each other  also so  that the
\n     confinement would\tno longer  be solitary\tdespite\t the
\n     fact that they are kept in separate adjoining cells.
\n\t  The petitioner  did not complain of any discomfort
\n     other than\t being kept  in ‘solitary  confinement’\t and
\n     being made\t to sleep  on the  floor. He asked us to see
\n     another part of the prison where undertrials were kept.
\n     When  we\tvisited\t that  part,  we  found\t dormitories
\n     provided there   for under-trial prisoners who had beds
\n     there and\ttheir own  bedding and\tclothing. They\talso
\n     had, in  that part\t of the\t prison, radio sets, some of
\n     which belonged  to the prisoners no others to the jail.
\n     The under\ttrials were  allowed to mix with each other,
\n     play games\t or do\twhat they wanted within a compound.”<\/p><\/blockquote>\n
     (emphasis, ordered). ‘
\n     The basic\tfacts hearing  upon  the  condition  of\t the
\nprisoner  in  his  cell\t are  not  denied  although  certain
\nmaterials have been averred in the counter affidavit to make
\nout that  the mental  mayhem imputed to the system vis a vis
\nthe petitioner is wild and invalid.\n<\/p>\n
     For updating  the post-sentence  saga of  Batra  it  is
\nnecessary to  state that the High Court has since upheld the
\ndeath penalty  imposed on  him; and open to him still is the
\nopportunity to\tseek leave  to appeal under Art. 136 and, if
\nfinally frustrated in this forensic pursuit, to move for the
\nultimate alchemy  of Presidential  communication under\tArt.\n<\/p>\n
72. The\t cumulative period  from  when\tthe  Sessions  Court
\nsentences to  death to\twhen;  the  Supreme  Court  and\t the
\nPresident  say\t ‘nay’\tfor   his  right   to  life  may  be
\nconsiderable as in this very case. From them, if discomfited
\nat all\tstages and condemned to execution, to when he swings
\non the\trope to\t reach ‘the  undiscovered country from whose
\nbourn no  traveller returns’ is a different, dismal chapter.
\nKeeping these  spells of suffering separate, we may approach
\nthe poignant  issue of\tquasi-solitary confinement  and\t its
\nlegality.\n<\/p>\n
     Art 21 insists upon procedure established by law before
\nany person can be denuded of his freedom of locomotion. What
\nthen is\t the law  relied upon  by the  State to cut down the
\nliberty of the person to the bare bones of utter isolation ?
\nSection 30  of the  Prisons Act\t is pressed  into service in
\nanswer.\t The   respondent’s  counter-affidavit\talleges,  in
\nsubstantiation of  cellular  seclusion\tand  deprivation  of
\nfellowship, the following facts :-\n<\/p>\n
\t  “In fact,  I submit that the provisions of Sec. 30
\n     of the  Prisons Act take in all necessary safeguard for
\n     the protection  of the  prisoners\tsentenced  to  death
\n     which are abso-\n<\/p><\/blockquote>\n
427<\/span><\/p>\n
     lutely necessary  in view\tof the state of mind of such
\n     prisoners as  well as all the possible circumstances in
\n     which these prisoners may indulge in harming themselves
\n     or any  other  criminal  activity\tin  their  voluntary
\n     discretion and  in the  alternative the  possibility of
\n     their being  harmed by  any other\tprisoner. A prisoner
\n     under  sentence   to’  death   can\t connive  with\tsuch
\n     prisoners and  may\t thereby  succeed  in  getting\tsome
\n     instrument by  which he  may commit  suicide or  may be
\n     enabled to\t escape from  the jail.\t Moreover a prisoner
\n     under sentence of death has a very harmful influence on
\n     the other prisoners.\n<\/p><\/blockquote>\n
\t  In the  administration of  prisoners in  jail\t the
\n     maximum security measures have to be adopted in respect
\n     of the  prisoners under  sentence of death. As they are
\n     highly frustrated\tlot, they will always be on the look
\n     out for  a opportunity to over-power the watch and ward
\n     guard, and make attempt to escape. It is quite relevant
\n     to add  that under\t the  existing\tprovisions  of\tJail
\n     Manual, Armed  Guard P  cannot be\tposted to  guard the
\n     prisoners. The  Warder guard  has to  guard  them\tbare
\n     handed. Tn\t case the  prisoners under sentence to death
\n     are allowed  to remain outside the cells, then it would
\n     be next  to impossible  for the  guard to\tcontrol them
\n     bare handed
\n\t  Under the  provisions of  the\t new  Cr.  P.C.\t the
\n     Capital   Punishment    is\t  awarded   only   t(h\t the
\n     exceptionally few\tprisoners  because  now\t it  is\t the
\n     exception rather than rule, and the learned Courts have
\n     to record\tspecial reasons\t for  awarding\tthe  extreme
\n     punishment.  This\timplies\t that  the  prisoners  under
\n     sentences\tof   death   are   exceptionally   dangerous
\n     prisoners, who  do require\t maximum  security  measures
\n     while confined in Jail. Under the existing arrangements
\n     in\t the   Jail  there  can\t be  no\t substitute  to\t the
\n     confinement treatment  of such prisoners otherwise than
\n     in the  cells. After  having been\tawarded the  capital
\n     punishment the  prisoners sentenced  to  death  harbour
\n     feelings of  hatred against  the authorities.  If\tsuch
\n     prisoners are  allowed to remain outside the cells then
\n     there is  every possibility  of incidents\tof  assaults
\n     etc. On the fact (sic) of such prisoners.
\n\t  ….. If  the prisoners  sentenced  to  death\t are
\n     mixed up  with other  categories of  prisoners then the
\n     very basic\t structure of superintendence and management
\n     of jails will be greatly jeopardised.\n<\/p><\/blockquote>\n
11-526SCI\/78
\n428<\/span>
\n\t  …. I submit that the provisions of Section 30 of
\n     the Prisons Act are absolutely necessary looking to the
\n     state of mind of prisoners under sentence of death, the
\n     possibility of  such prisoners  harming  themselves  or
\n     getting harmed  by others\tor escaping  in view  of the
\n     relevant sociological  aspects of\tsecurity relating to
\n     the Society in the modern States.”\n<\/p>\n
     These  factual-legal  submission  deserve\texamination.
\nWhen arguments\tspread out the learned Additional Solicitors
\nabandoned some\tof the\textreme stances\t taken in the States
\naffidavit and reduced the rigour of the averments by gentler
\npostures.\n<\/p>\n
     Essentiality, we  have to\tdecide whether,\t as a  fact,
\nBatra is  being subjected  to solitary\tconfinement. We have
\nfurther to explore whether S.30 of the Act contemplates some
\nsort of solitary confinement for condemned prisoners and, if
\nit does,  that legalizes  current  prison  praxis.  We\thave
\nfurther to investigate whether such total seclusion, even if
\ncovered by  S. 30(2)  is the  correct  construction,  having
\nregard to  the conspectus  of the  relevant provision of the
\nPenal Code  and Criminal Procedure Code. Finally, we have to
\npronounce upon the vires of S. 30(2), if it does condemn the
\ndeath sentence to dismal solitude.\n<\/p>\n
     The learned  Additional Solicitor\tGeneral made a broad
\nsubmission   that   solitary   confinement   was   perfectly
\nconstitutional and  relied on  citations from  the  American
\nCourts at the lesser  levels Its bearing on the structure of
\nhis argument  is that  if even\tin a country like the United
\nStates where  the VIIIth  Amendment balls  cruel and unusual
\npunishment. the\t ‘solitary’ has\t survived judicial scrutiny,
\nit  is\t a  fortiori  case  in\tIndia,\twhere  there  is  no
\nconstitutional\tprohibition   against  cruel   and   unusual
\npunishment.\n<\/p>\n
     True our  Constitution has\t no ‘due  process’ clause or
\nthe VIII Amendment; but, in this branch of law, after Cooper
\nand Maneka  Gandhi the\tconsequence is the same. For what is
\npunitively outrageous,\tscandalizingly unusual\tor cruel and
\nrehabilitatively    counterproductive,\t   is\t  unarguably
\nunreasonable and  arbitrary and\t is shot down by Art. 14 and
\n19 and\tif inflicted  with procedural unfairness, falls foul
\nof Art.\t 21. Part  III of  the Constitution  does  not\tpart
\ncompany\t with  the  prisoner  at  the  gates,  and  judicial
\noversight  protects   the  prisoner’s  shrunken\t fundamental
\nrights, if  flouted, frowned  upon or  frozen by  the prison
\nauthority. Is  a person\t under death  sentence or undertrial
\nunilaterally dubbed dangerous liable to suffer extra torment
\ntoo deep  for tears  ? Emphatically no, lest social justice,
\ndignity\t of   the  individual,\t equality  before  the\tlaw,
\nprocedure established by law and the seven
\n429<\/span>
\nlamps of  freedom (Art. 19) become chimerical constitutional
\nclaptrap. A  Judges, even  within a  prison setting, are the
\nreal, though  restricted, ombudsmen  empowered to  prescribe
\nand prescribe,\thumanize and  civilize the life-style within
\nthe carcers.  The operation of Articles 14, 19 and 21 may be
\npared down for a prisoner but not puffed out altogether. For
\nexample, public\t addresses by  prisoners may be put down but
\ntalking to  fellow prisoners  cannot.  Vows  of\t silence  or
\ntaboos on  writing poetry  or drawing cartoons are violative
\nof Article  19. So  also, locomotion  may be  limited by the
\nneeds of  imprisonment but binding hand and foot, with hoops
\nof steel,  every man  or women sentenced for a term is doing
\nviolence  to   Part  III.   So\tBatra\tpleads\tthat   until
\ndecapitation he\t is human  and so  should not be scotched in
\nmind by\t draconian cellular  insulation nor  stripped of the
\nbasic fellowship  which keeps  the spirit  flickering before
\nbeing extinguished by the swinging rope.\n<\/p>\n
     Is it  legal or legicidel to inflict awesome loneliness
\non  a  living  human  ?\t The  lesser  poser  to\t the  prison
\nadministration\tis,  what  is  its  authority,\tbeyond\tbare
\ncustody, to  wound the condemned men by solitary confinement
\n?  Indeed,   the  Additional   Solicitor  General,   at\t the
\nthreshold,  abandoned\tsuch  an   ‘extinguishment’   stance
\nambiguously lingering  in the  State’s counter affidavit and
\nargued only  for their\trealistic circumscription,  since  a
\nprison context\taffects the  colour, content  and contour of
\nthe freedoms  of the legally unfresh. The necessary sequitur
\nis that\t even a person under death sentence has human rights
\nwhich are  non-negotiable and  even  a\tdangerous  prisoner,
\nstanding trial, has basic liberties which cannot be bartered
\naway.\n<\/p>\n
The Cooper effect and the Maneka armour vis-a-vis prisons.\n<\/p>\n
     The ratio in A. K. Gopalan’s case where the Court, by a
\nmajority, adopted  a restrictive  construction and ruled out
\nthe play  of  fundamental  rights  for\tanyone\tunder  valid
\ndetention, was\tupturned in  R.C. Coopers case.(1) In Maneka
\nGandhi the  Court has  highlighted  this  principle  in\t the
\ncontext of Art. 21 itself.\n<\/p>\n
     And what  is ‘life’ in Art. 21? In Kharak Singh s case.
\nSubba Rao,  J. quoted  Field, J.  in Munn v. Illino’s (1877)
\n94, U.S.  113, to  emphasise the  quality of life covered by
\nArt. 21:\n<\/p>\n
\t  “Something more  than mere  animal existence.\t The
\n     inhibition against its deprivation extends to all those
\n     limbs and\tfaculties by  which  life  is  enjoyed.\t The
\n     provision H
\n     (1) [1971] 1 SCR 512.\n<\/p><\/blockquote>\n
430<\/span><\/p>\n
     equally prohibits\tthe mutilation\tof the\tbody by\t the
\n     amputation of  an arm  or leg, or the putting out of an
\n     eye, or  the destruction of any other organ of the body
\n     through which  the soul  communicates  with  the  outer
\n     world.”\n<\/p><\/blockquote>\n
[1964(1) SCR  232 at 357]., A dynamic meaning must attach to
\nlife and liberty.\n<\/p>\n
     This court\t has upheld  the right of a prisoner to have
\nhis work published if it does not violate prison discipline.
\n(State\tv.   Pandurang)(1).  The  martydom  of\tGopalan\t and
\nresurrection by Cooper paved the way for Maneka(2) where the
\npotent invocation of the rest of Part III, even after one of
\nthe rights  was validity  put out of action, was affirmed in
\nindubitable breadth.  So the  law is that for a prisoner all
\nfundamental  rights   are  an  enforceable  reality,  though
\nrestricted by  the  fact  of  imprisonment.  The  omens\t are
\nhopeful for  imprisoned humans because they can enchantingly
\ninvoke Maneka  and, in its wake Arts. 14, 19 and even 21, to
\nrepel the  deadening impact  of unconscionable incarceratory
\ninflictions based on some lurid legislative text or untested
\ntradition. As  the twin\t cases unfold  the facts, we have to
\ntest the contentions of law on this broader basis.\n<\/p>\n
     Prisons are  built with  stones of\t Law’ (sang  William
\nBlake) and  so, when  human rights  are hashed\tbehind bars,
\nconstitutional justice\timpeaches such\tlaw. In\t this sense.
\ncourts which sign citizens into prisons have an onerous duty
\nto  ensure   that,  during  detention  and  subject  to\t the
\nConstitution, freedom from torture belongs to the detenu.\n<\/p>\n
     I may  project, by way of recapitulation, issues in the
\ntwo cases. Is Batra or any convict condemned to death-liable
\nto  suffer,  by\t implication,  incarceratory  sequestration,
\nwithout specific  punishment of\t solitary confinement,\tfrom
\nwhen the  Sessions Judge  has  pronounced  capital  sentence
\nuntil that inordinate yet dreadful interregnum ends when the
\nlast court  has finally\t set its seal on his liquidation and
\nthe highest  executive has  signed ‘nay’  on  his  plea\t for
\nclemency? Is  prison law,  which humiliates the human minima
\nof jail justice, unlaw ? Is Batra, strictly speaking, ‘under
\nsentence  or   death’  until   its  executability,  and\t his
\nterrestrial farewell  have become  irrevocable by  the final
\nrefusal to  commute, by\t the  last  court  and\tthe  highest
\nExecutive ?  Till then,\t is  he\t entitled  to  integrity  of
\npersonalities viz.  freedom from crippling on body, mind and
\nmoral fibre, even while in
\n     (1)  [1966] (i)  S.C.R. 702  and see  [1975] 3  SCC 185
\n\t  (Chandrachud, J.)
\n     (2) [1978] 1 S.C.R. 248.\n<\/p>\n
431<\/span><\/p>\n
custody, or  is he  deemed under  s. 30 of the Act to suffer
\nlone  A\t imprisonment  until  cadaverisation?-a\t qualitative
\nhiatus in approach and impact.\n<\/p>\n
     I have  limned the key questions canvassed on behalf of
\nBatra  before  us  and,\t if  I\tmay  forestall\tmy  eventual
\nresponse, Law  India stands  for Life,\teven the dying man’s
\nlife and  lancets its  restorative was into that limbo where
\nlanguish lonely\t creatures whose  personhood  is  excoriated
\neven  if  their\t execution  is\tunexecutable  until  further
\naffirmation.\n<\/p>\n
     In\t the  next  case  we  have  Sobhraj,  an  undertrial
\nprisoner kept  indefinitely under bar fetters, as a security
\nrisk, arguing  against the constitutionality of this obvious
\ntorture, sought\t to be\tjustified by  the  State  under\t the
\nprison law  as a  safety procedure.  The two  cases  have  a
\ncertain ideological  kinship. The  jurisprudential watershed
\nbetween\t  the\tjail   sub-culture   under   the   Raj\t and
\ncriminological consciousness  in Free India is marked by the
\nNational Charter of January 26, 1950 . `
\n     Bluntly put,  are jail keepers manegerie managers ? Are
\nhuman  beings,\tpulverized  into  living  vegetables,  truly
\ndeprived of  life, the\tquality of  life,  or  at  least  of
\nliberty, that  limited loop of liberty, the fundamental Law,
\nin its\tbasic mercy,  offers to\t the prison  community ? Are
\npunitive techniques  of physio-psychic\ttorture practiced as
\njail  drill,   with   the   trappings\tof   prison   rules,
\nconstitutional anathema\t when pressed  beyond a point? Every
\nConstitution projects  a cultural  consciousness and  courts
\nmust breathe this awareness.\n<\/p>\n
     A few  more variants  of these  interrogatories may  be
\nspelt out.  Is solitary\t confinement  or  similar  stressful
\nalternative, putting  the prisoner  beyond the zone of sight
\nand speech  and society\t and  wrecking\this  psyche  without
\ndecisive   prophylactic\t   or\tpenological    gains,\t too
\ndiscriminatory to  be valid  under Art. 14, too unreasonable
\nto be intra vires Article 19 and too terrible to qualify for
\nbeing human  law under\tArticle 21?  If the penal law merely
\npermits safe  custody of  a ‘condemned’\t sentence, so  as to
\nensure his  instant availability  for execution with all the
\nlegal rituals  on the  appointed day,  is  not\tthe  hurtful
\nseverity of  hermetic  insulation  during  that\t tragic\t gap
\nbetween the  first judgment and then fall of the pall, under
\nguise of a prison regulation, beyond prison power ?\n<\/p>\n
     This epitome,  expressed tartly,  lays bare  the  human
\nheart of  the problem debated with elaborate legal erudition
\nand compassion at the Bar.\n<\/p>\n
432<\/span><\/p>\n
     These are\tcritical problems which symbolize the appeal
\nto higher values, and inspired by this lofty spirit, counsel
\nhave argued. I must, right at the outset, render our need of
\nappreciation for the industry and illumination brought in by
\nShri Y.\t S. Chitale,  amicus curiae,  as  he  pressed  these
\npoints of  grave portent  and legal moment. So am I beholden
\nto Shri Soli Sorabjee, the Additional Solicitor General, who
\nhas displayed commendable candour and benign detachment from
\nhis brief and shown zealous concern to advance the rights of
\nman, even  ‘condemned’ man,  against  the  primitive  drills
\nbehind the  ‘iron curtain’  sanctified by  literal legality.
\nThe Prison Manual is no Bible. ‘This shared radical humanism
\nat the\tbar has narrowed the area of dispute and reduced the
\nconstitutional tension, and this has made my task easy.\n<\/p>\n
     Right now\twe will examine some of the fallacies in the
\ncounter affidavit  filed by  the State.\t This will  help  us
\njudge the  reasonableness or otherwise, the arbitrariness or
\notherwise, and\tthe processual\tfairness or otherwise of the
\nprescription  of   the\tde   facto   solitary\tconfinement,
\nespecially where  the Court  has not awarded such a sentence
\nand the Jail Superintendent has read it into S. 30(2).\n<\/p>\n
     A\tprefatory   clarification  will\t melt  the  mist  of
\nobscurity in the approach of the State. Many a murderer is a
\ngood man  before and  after the crime and commits it for the
\nfirst and last time under circumstantial crises which rarely
\nrepeat. Some  murderers\t are  even  noble  souls,  patriotic
\nrebels, or  self-less sacrificers  for\tlarger,\t some  times
\nmisguided,  causes.   Not  an\tunusual\t phenomenon  is\t the
\nspectacle of  persons in  the death  row being\tpolitical or
\nsocial\tdissenters,   sensitive\t revolutionaries,   national
\nheroes, coloured people socio-economic pariahs or victims of
\nfabricated evidence.  Brutus  and  Bhagat  Singh  plus\tsome
\nproletarians, blockheads  and blackguards! And this powerful
\nrealisation has\t driven\t many  countries  to  abolish  death
\npenalty and  our own  to narrow\t the area  of  this  extreme
\ninfliction by  judicial compassion  and executive  clemency.
\nAgainst this  contemporary current  of penological humanity,
\nit is  presumptuous  to\t impose\t upon  this  court,  without
\nconvincing back-up  research, the  preposterous\t proposition
\nthat death  sentences, often  reflective in  their  terminal
\nchapter and  ‘sickled over  by the pale cast of thought, are
\nhomicidal or  suicidal beasts  and must therefore be kept in
\nsolitary confinement. (1)
\n\t  “… the  evidence given to us in the countries we
\n     visited and  the information  we received\tfrom others,
\n     were M  uniformly to  the effect  that murderers are no
\n     more likely
\n     (1) Royal\tCommission on  Capital Punishment, 1949-1953
\nReport pp. 216-217.\n<\/p>\n
433<\/span><\/p>\n
     than any  other prisoners\tto commit  acts of  violence
\n     against A\tofficers or  fellow prisoners  or to attempt
\n     escape; on\t the contrary  it would\t appear that  in all
\n     countries murderers  are, on  the whole  better behaved
\n     than most prisoners
\nPolitical coups,  so frequent  in our times, put ‘murderers’
\nin  power   who\t would\totherwise  have\t been  executed.  To
\nuniversalise is to be unveracious when validation is founded
\non habituated hunch, not authentic investigation.\n<\/p>\n
     Once we  set our  sights clear, we see a string of non-
\nsequitur in  the naked assertions of the State and an encore
\nof  the\t  folklore  of\t ‘dangerousness’  surrounding  human
\nsentenced to  death!  The  burden  of  the  song?  strangely
\nenough, is  that solitary  confinement is  a com- passionate
\nmeasure to  protect the\t prisoner lest\the be killed or kill
\nhimself or  form a  mutual aid\tsociety with other condemned
\nprisoners for hera kiri Community life for a death sentence,
\nthe  social   psychology  of  the  Jail\t Superintendent\t has
\nconvinced him  to swear,  is a\tgrave risk  to himself.\t So,
\nsolitary segregation;  The ingenious  plea  in\tthe  counter
\naffidavit is  like asserting  not only\tthat grapes are sour
\nbut n  that sloss  are sweet. Not only is group life bad for
\nhim because  he may  murder but ‘solitary’ is a blessing for
\nhim because  otherwise he  may be  murdered! To swear that a
\nsolitary cell  is the  only barricade  against the condemned
\nmen  being   killed  or\t his  killing  others  is  straining
\ncredulity to  snapping point.  Why  should  he\tkill  or  be
\nkilled? Most  murderers are  first offenders  and often\t are
\nlike their fellow-men once the explosive stress and pressure
\nof motivation  are released.  Are there\t prison\t studies  of
\npsychic perversions  or lethal\tprecedents probabilising the
\nhomicidal or suicidal proclivities of death sentence, beyond
\nthe non-medical jail superintendent’s ipse dixit?\n<\/p>\n
     We are  dealing with  men under sentence of death whose
\ncases pend  in appeal or before the clemency jurisdiction of
\nGovernor or  President. Such men, unless mad, have no motive
\nto commit suicide or further murder within the jail. If they
\nmean to\t take their  life themselves  why plead in appeal or
\nfor commutation?  The very  legal struggle  to escape  death
\nsentence strongly  suggests they want to cling to dear life.
\nDostoevsky(1) once  said that  if, in the last moment before
\nbeing  executed,  a  man,  however  brave,  were  given\t the
\nalternative of spending the rest of his numbered days on the
\ntop of\ta bare rock, with only enough space to sit on it, he
\nwould choose it with relief.\n<\/p>\n
     The instinct  of self  preservation is  so\t inalienable
\nfrom biological\t beings that  the  easy\t oath  of  the\tJail
\nSuperintendent that condemned
\n\t  (1)  L.M. Hiranandani,  The Sentence of Death, The
\n\t  illustrated Weekly  of India,\t Aug. 29.  Sept.  4,
\n\t  page 8.\n<\/p>\n
434<\/span><\/p>\n
prisoners are  prone to commit suicide if given the facility
\nlooks too recondite to commend credibility.\n<\/p>\n
     Likewise, the  facile statement  that men\tin the death
\nrow are\t so desperate  that they will commit more murders if
\nfacility offers\t itself\t lacks\trational  appeal.  It  is  a
\ncertainty that\ta man  in the death row who has invited that
\nfate by\t one murder and is striving to save himself from the
\ngallows by  frantic forensic proceedings and mercy petitions
\nis not\tlikely to make his hanging certain by committing any
\nmurder within the prison. A franker attitude might well have
\nbeen for  the Superintendent  to swear\tthat  prison  praxis
\nhanded down from the British rule has been this and no fresh
\norientation to\tthe prison  staff or  re-writing of the jail
\nmanual having  taken place,  the Past has persisted into the
\nPresent and  he is  an\tinnocent  agent\t of  this  inherited
\nincarceration ethos.\n<\/p>\n
     Nothing is\t averred Lo  validate the near-strangulation
\nof the\tslender\t liberty  of  locomotion  inside  a  prison,
\nbarring vague  generalities. The seat of crime is ordinarily
\nexplosive tension,  as stressologists have substantiated and
\nthe award  of death  sentence as against life sentence turns
\non a  plurality of  imponderables. Indeed, not in frequently
\non the\tsame or\t similar facts judges disagree ‘on the award
\nof death  sentence. If the trial Court awards death sentence
\nthe Jail  Superintendent holds\thim dangerous  enough to  be
\ncribbed day  and night.\t If the\t High Court converts it to a
\nlife term  the convict,\t according to  prison masters,\tmust
\nundergo a  change of  heart and\t become sociable, and if the
\nSupreme Court enhances the sentence he reverts to wild life!
\nToo absurd  to he  good! To find a substantial difference in
\nprison treatment  between the  two ‘lifers’  and ‘condemned’
\ncon victs-is  to infer\tviolent conduct or suicidal tendency
\nbased on  the fluctuating sentence alone for which no expert
\ntestimony is forth coming. On the other hand, the ‘solitary’
\nhardens the  criminal, makes  him desperate  and breaks\t his
\nspirit or  makes him  break out of there regardless of risk.
\nIn short, it is counter-productive.\n<\/p>\n
     A few  quotes from\t a recent American study on prisons,
\nhammer home the negativity of the “solitary”.(1) The “hole”,
\nor  solitary   confinement,  is\t often\treferred  to  as  an
\n“Adjustment Center” (AC) Here is one man’s memory of it from
\nSan Quentin prison in California.\n<\/p>\n
\t  When I  first saw  it, I just couldn’t believe it.
\n     It was a dungeon. Nothing but cement and filth. I could
\n     not imagine
\n     (1)  Rogers G. Lamphear: Freedom From Crime through the
\n\t  M. Sidhi. Program, pp. 128-129.\n<\/p>\n
435<\/span><\/p>\n
     who have  lived in\t there before me. All day I just sat
\n     there on  my bunk, in a sort of daze? staring at my new
\n     abode
\n\t  …. Instead\tof bad spring there was a flat steel
\n     plate (which  is the  same throughout  the\t Hole);\t the
\n     window  was  cemented  up,\t except\t for  the  very\t top
\n     section, which  was one  quarter the standard size, and
\n     without any  glass panes,\tthus  exposing, the occupant
\n     to all  kinds of  weather (the rain would actually come
\n     through,  into   the  cell);   there  was\tno  shelving
\n     whatsoever-not so\tmuch as\t a hook\t to hand  a towel or
\n     clothes on\t (and it  was against the regulations to fix
\n     up a  clothes line; so anyone who did so, did it at the
\n     risk of  being beefed).  In short,\t there was  nothing;
\n     just four walls, and room enough to take five paces-not
\n     strides-from one  end of the cell to the other. Nothing
\n     to break  the  monotony  of  cement  except  the  usual
\n     graffiti. The  window  was\t too  high  for\t a  view  of
\n     anything but  the roof  of the  wing next\tdoor. It was
\n     truly a dungeon; a bomb; a crypt. And it was “Home” for
\n     twenty four hours a day, every day.”(1)
\nOne prisoner wrote:\n<\/p>\n
\t  I swear  I want  to cry  sometimes, when I look at
\n     some of  the older\t prisoner who have been in prison so
\n     long that\tthey  hold  conversations  with\t people\t who
\n     aren’t there  and blink  their sad eyes once every four
\n     or five minutes.\n<\/p><\/blockquote>\n
\t  . .  . All  I can do at’ this stage of the game is
\n     to look  at my  older brothers of oppression and wonder
\n     if this  will be me 15 or 20 years from now. Can I hold
\n     on? Will  I last?\tWill I\tsome day  hold conversations
\n     with ghosts?\n<\/p><\/blockquote>\n
\t  … I\t have seen cats leave here twice as hostile,
\n     twice as  confused, twice as anti-social than they were
\n     when they\tentered. Depleted  of  nearly  all  of\tthem
\n     mental justices,  they are\t “thrown back”\tinto society
\n     where they\t are expected  to function like normal human
\n     beings. And  then society\twonders why recidivism is so
\n     high in the country; why a man serves five or ten years
\n     in prison only to go out and commit the same act again.
\n\t  They seem to fall apart emotionally and mentally;
\n\t  To say  that T became a nervous and paranoid wreck
\n     would be understatement. My mother would end up crying
\n     (1) Ibid pp. 131-132.\n<\/p><\/blockquote>\n
436<\/span><\/p>\n
     every  time   she\tcame   to  see\tme,  because  of  my
\n     nervousness, which\t caused my hands to shake, and I had
\n     developed a sty in my right eye.”<\/p><\/blockquote>\n
     When handling  the inner  dynamics of  human action, we
\nmust be\t informed of  the basic\t factor of human` psychology
\nthat “Nature  abhors a\tvacuum; and man is a social animal”.
\n(Spinoza). In  such all\t area we must expect Brandies briefs
\nbacked by  opinions of\tspecialists on\tprison tensions,  of
\nstressologists on the etiology of crime and of psychiatrists
\nwho have  focussed attention on behaviour when fear of death
\noppresses their\t patients. A  mere administrative  officer’s
\ndeposition about  the  behaviourial  may  be  of  men  under
\ncontingent sentence  of death  cannot weigh with us when the
\nlimited liberties  of expression and locomotion of prisoners
\nare sought to be unreason ably pared down or virtually wiped
\nout by oppressive cell insulation. No medical or psychiatric
\nopinion or  record of  jail events as a pointer, is produced
\nto prove,  even prima  facie, that this substantial negation
\nof  gregarious\t jail  life   is  reasonable.\tWhere  total
\ndeprivation\t of  the  truncated  liberty  of  prisoner’s
\nlocomotion is  challenged the  validatory burden  is on\t the
\nState
\n     The next  fallacy in  the counter-affidavit  is that if
\nthe  murder   is  monstrous  deserving\tdeath  sentence\t the
\nmurderer  is   a  constant   monster  manifesting  continued
\ndangerousness. Does this stand to reason? A woman who coldly
\npoisons all  her crying\t children to  death to\telope with a
\nparamour may  be guilty of maniacal murder and, perhaps, may
\nbe awarded  death sentence.  But is  she, for that reason, a
\ndangerously  violent   animal?\tother\tdiabolical  killings
\ndeserving  death  penalty  but\tinvolving  no  violence?  in
\nspecial social\tsettings, may  be visited  with\t life  term,
\nthough the  offender is\t a ghastly murderer. Imagine how the
\nrespondent’s test of behaviourial violence breaks down where
\ndeath sentence\tis demolished  by a  higher  court  for\t the
\nreason it  has been on his head for years or he is too young
\nor too\told, or\t commuted by the President for non-legal yet
\nrelevant  considerations   as  in   the\t case  of  patriotic
\n`terrorists. The  confusion between  sentencing criteria and
\nblood-thirsty prison behaviour is possible to understand but
\nnot to accept.\n<\/p>\n
     Having dealt with some of the untenable positions taken
\nby the\taffient, I move on to a consideration of the torture
\ncontent of  solitary confinement.  The\tBatra  treatment  is
\nlittle\tshort  of  solitary  confinement.  This\t inclination
\npersuaded the  court to make the interim ll direction on 5th
\nMay, 1978
\n\t  “We direct that until further orders of this Court
\n     the  petitioner   Sunil  Batra  will  not\tbe  kept  in
\n     ‘confinement’ as
\n437<\/span>
\n     contemplated by  S. 30(2)\tof the\tPrisons Act, 1894. A
\n     Reasons to follow”.\n<\/p>\n
     Even so,  from a  larger angle, it becomes necessary to
\nexplain\t why   a  sensitized   perspective  repels  judicial
\ncondonation  of\t solitary  confinement\tof  sorts.  What  is
\nsolitary  confinement,\t experiencially,  juristically,\t and
\nhumanistically\tunderstood   ?\tAt   the   close   of\tthis
\nconsideration, a  legal definition  OF solitary\t confinement
\nmay be given to the extent necessary in this case.\n<\/p>\n
     American high-security  prisons, reportedly  with their
\ntours, tantrums and tensions, may not help comparison except
\nminimally. Even\t so, the  Additional Solicitor\tGeneral draw
\nour attention  to observations\tof the U.S. Court of Appeals
\ndecisions  affirming   segregated  confinement\t in  maximum
\nsecurity prisons.  His\tpoint  was  autonomy  for  the\tjail
\nadministration in matters of internal discipline, especially
\nwhere inmates were apt to be:\n<\/p>\n
\t  (1) “threat  to themselves,  to others,  or to the
\n     safety and\t security of  the institution. Such a policy
\n     is perfectly  proper and  lawful and its administration
\n     requires  the   highest  degree  of  expertise  in\t the
\n     discretionary function of balancing the security of the
\n     prison with  fairness to  the individual  con fined. In
\n     the case  at bar  the record  reveals that\t appellant’s
\n     confinement  in   segregation  is\tthe  result  of\t the
\n     considered judgment  of the  prison authorities  and is
\n     not arbitrary”.\n<\/p><\/blockquote>\n
In  the\t  specific  cases  cited  the  facts  disclose\tsome
\njustification for insulation.\n<\/p>\n
     “Appellant\t has  indeed,  been  in\t segregation  for  a
\n     protracted period, continuously for more than two years
\n     prior to  the  present  hearing.  However,\t his  record
\n     during these  separate  periods  when  he\twas  allowed
\n     confinement  “within  the\tpopulation  ”  of  a  prison
\n     reflects  a   history  of\tparticipation,\tdirectly  or
\n     indirectly, in  conduct of\t extreme violence.  Although
\n     his con  duct in  segregation has\tsince been  entirely
\n     satisfactory the  G trial\tcourt was manifestly correct
\n     in\t determining  that  appellant  has  been  denied  no
\n     constitutional right  and\tthat  the  determination  of
\n     whether appellant\tpresently ‘should  be  considered  a
\n     threat to\tothers or  the safety  or  security  of\t the
\n     penitentiary is  a matter\tfor administrative  decision
\n     and not the courts.”\n<\/p><\/blockquote>\n
     (1)  Kenneth  Grahm   v.  J.   T.\tWillingham   Federal
\n\t  Reporter, 2d Series Vol. 384 P. 2d. p. 367.<\/p><\/blockquote>\n
438<\/span><\/p>\n
     But, in  our cases,  no record  revealing balancing  of
\nconsiderations or  compelling segregation  or murderous\t in-
\nprison violence\t save that  he is  potentially ‘under  death
\nsentence’, is  shown. To be mindless is to be cruel and that
\nis reflex  action of  the jail\tbosses\twhen  prisoners\t are
\nroutinely sent\tto the\tsolitary  cell\ton  hunch  or  less.
\nAlleging chances of killing or being killed as the alibi for
\nawarding ‘solitary’ is an easy ‘security’ phobia which shows
\nlittle appreciation of the suffering so heaped. And abuse is
\nundetected and\tindiscriminate in  that walled\tworld within
\nthe world.\n<\/p>\n
\t  “Commenting  on   solitary  cellular\tconfinement,
\n     Pandit Nehru  observes that the gaol department adds to
\n     the sentence  of  the  court  an  additional  and\tvery
\n     terrible punishment,  so far  as\tadults and even boys
\n     accused  of  revolutionary\t activities  are  concerned.<\/p><\/blockquote>\n
     Over-zealous prison  administrators in  the  past\thave
\n     contributed  not\ta  little   to\tthe   disrepute\t and
\n     unpopularity of  the Government  by making reckless use
\n     of this on political offenders or detenus.” (1)
\nThe great  Judge Warren,  CJ in Trop. v. Dulles(2) refers to
\nthe condemnation of segregation and observes:\n<\/p>\n
\t  “This\t  condemnation\t of   segregation   is\t the
\n     experience\t years\tago  of\t people\t going\tstir  crazy,
\n     especially in segregation”.<\/p><\/blockquote>\n
     That compassionate\t novelist, Charles  Dickens, in\t his
\n‘American Notes\t and  Pictures\tfrom  Italy’  describes\t the
\ncongealing  cruelty   of   ‘solitary   confinement’   in   a
\nPennsylvania Penitentiary (p. 99) :\n<\/p>\n
\t  I am\tpersuaded that those who devised this system
\n     of prison\tdiscipline, and\t those benevolent  gentlemen
\n     who carry\tit into\t execution, do\tnot know  what it is
\n     that they\tare doing.  I believe  that very few men are
\n     capable of estimating the immense amount of torture and
\n     agony which  this\tdreadful  punishment  prolonged\t for
\n     years, inflicts  upon the sufferers; and in guessing at
\n     it myself,\t and in\t reasoning from\t what  I  have\tseen
\n     written upon  their  faces,  and  what  to\t my  certain
\n     knowledge\tthey   feel  within,  I\t am  only  the\tmore
\n     convinced that  there is  a depth of terrible endurance
\n     in it  which none\tbut  the  sufferers  themselves\t can
\n     fathom, and  which no  man has  a right to inflict upon
\n     his  fellow-creatures.  I\thold  this  slow  and  daily
\n     tempering with  the  mysteries  of\t the  brain,  to  be
\n     immeasurably worse than any torture of the body; and
\n     (1) B. K. Bhattacharya: Prisons, p. 111.
\n     (2)  Leonard Orland, Justice, Punishment, Treatment, p.\n<\/p><\/blockquote>\n
\t  297.
\n439<\/span>
\n     because  its  ghastly  signs  and\ttokens\tare  not  so
\n     palpable to  the eye  and sense  of touch as scars upon
\n     the Flesh;\t because its wounds are not upon the surface
\n     and it  extorts few  cries that  human ears  can  hear;
\n     thereore,\tI   the\t more\tdenounce  it,  as  a  secret
\n     punishment which  slumbering humanity  is not roused up
\n     to stay. I hesitate once, debating with myself whether,
\n     if I  had the  power of  saying “Yes”  or “No”. I would
\n     allow it  to be tried in certain cases, where the terms
\n     OF\t imprisonment\twere  short;  but  now,\t I  solemnly
\n     declare, that with no rewards or Honours could I walk a
\n     happy man\tbe neath  the open  sky by  day, or lie down
\n     upon bed  at night,  with the  consciousness  that\t one
\n     human creature,  for any length of time, no matter what
\n     lay suffering  this unknown  punishment in\t his  silent
\n     cell, and\tI the  cause or\t I consenting  to it  in the
\n     least degree.”<\/p><\/blockquote>\n
     Viewing cellular  isolation from  a human\tangle,\tthat
\nliterary genius,  Oscar Wilds,\twho crossed  the path of the
\ncriminal law, was thrown into prison and wrote De Profundis,
\nhas poetized  in prose,\t with  pessimism  and  realism,\t the
\nlonely poignancy of the iron infirmary. I quote:\n<\/p>\n
\t  A great  river of  life Hows between me and a date
\n     so distant.  Hardly, if  at all,  can you see across so
\n     wide a  waste .  . . suffering is one very long moment.
\n     We cannot\tdivide it by seasons. We can only record its
\n     moods, and\t chronicle their return. With us time itself
\n     does not  progress. It  revolves. It  seems  to  circle
\n     round one\tcentre of pain. The paralysing immobility of
\n     a life  every circumstance of which is regulated to the
\n     inflexible laws  of  an  iron  formula:  this  immobile
\n     quality, that  makes each\tdreadful  day  in  the\tvery
\n     maniutest detail like its brother, seems to communicate
\n     itself to\tthose external\tforces the  very essence  of
\n     whose existence is ceaseless change.
\n\t  ….. For  us there is only one season, the season
\n     of sorrow.\t The very  sun and  moon seem taken from us.
\n     Outside, the  day may  be blue  and gold, but the light
\n     that creeps  down through\tthe thickly-muffled glass of
\n     the small\tiron-barred window beneath which one sits is
\n     grey and  niggard. It is always twilight in one’s cell,
\n     as it  is always  twilight in  one’s heart.  And in the
\n     sphere of\tthought, no less than in the sphere of time,
\n     motion is no more.”\n<\/p><\/blockquote>\n
440<\/span><\/p>\n
And Shri  Jawaharlal Nehru has recorded in his Autobiography
\nin tho Thirties (1) :\n<\/p>\n
\t  “Some\t individuals,  sentenced  for  revolutionary
\n     activities for  life or  long term of imprisonment, are
\n     often kept in solitary confinement for long period. But
\n     in the  case of  these persons-usually  young boys-they
\n     are kept  along although  their behaviour in gaol might
\n     be exemplary.  Thus an  additional\t and  very  terrible
\n     punishment is  added by  the  Gaol\t Department  to\t the
\n     sentence of  the Court,  without any  reason  therefor.
\n     This seems\t very extraordinary and hardly in confirmity
\n     with any  rule of law. Solitary confinement, even for a
\n     short period,  is a  most painful\taffair, for it to be
\n     prolonged for  years is  a terrible thing. It means the
\n     slow and  continuous deterioration of the mind, till it
\n     begins to\tborder on  insanity; and the appearance of a
\n     look  of  vacancy,\t or  a\tfrightened  animal  type  of
\n     expression. It is killing of the spirit by degrees, the
\n     slow vivisection  of the  soul. Even  if a man survives
\n     it. he  becomes abnormal  and an absolute misfit in the
\n     world.”<\/p><\/blockquote>\n
     Much has  been said in The course of the argument about
\nthe humanism imparted by interviews and letters. Nehru wrote
\nabout the Naini Prison, which retains its relevance for many
\nprisons even today, speaking generally:-\n<\/p>\n
\t  “Interviews  are  only  permitted  once  in  three
\n     months, and  so are  letters-a monstrously long period.
\n     Even so,  many prisoners cannot take advantage of them.
\n     If they  are illiterate, as most are, they have to rely
\n     on some gaol official to write on their behalf: and the
\n     latter, not  being keen  on adding\t to his\t other work,
\n     usually avoids  it. Or,  if a  letter us  written,\t the
\n     address is\t not properly  given and the letter does not
\n     reach. Interviews\tare still  more difficult. Almost in
\n     variably they  depend on  a gratification for some good
\n     official. often  prisoners are transferred to different
\n     gaols, and\t their people  cannot trace them. I have met
\n     many prisoners  who had  lost complete touch with their
\n     families for years, and did not know what had happened.
\n     Interviews, when  they do take place after three months
\n     or more  are most\textraordinary. A number of prisoners
\n     and their\tinterviewers are  placed together  on either
\n     side  of\ta  barrier,   and  they\t  all  try  to\ttalk
\n     simultaneously. There  is a  great deal  of shouting at
\n     each other,  and the slight human touch that might have
\n     come from the interview is entirely absent.”
\n     (1) Jawaharlal Nehru, An Autobiography, p. 222.\n<\/p><\/blockquote>\n
441<\/span><\/p>\n
     The curse of the system is, in Nehru’s words:
\n\t  “Not the  least effort  is made  to  consider\t the
\n     prisoner as  an  individual,  a  human  being,  and  to
\n     improve or\t look after  his mind.\tThe one thing the UP
\n     administration excels  is\tin  keeping  its  prisoners.
\n     There are\tremarkably few\tattempts to  escape.  and  I
\n     doubt if one i ten thousand succeeds in escaping.”<\/p><\/blockquote>\n
     A sad  commentary on  the die-hard\t ‘solitary’ in\tsome
\nIndian Jails  is gleaned from a recent book, “My Years in an
\nIndian Prison-Mary  Tyler”  (Victor  Gallantz  Ltd..  London
\n1977). The  author, a  young British,  Mary Tyler,  was in a
\nfemale ward,  kept solitary  as\t a  nasality,  and  deported
\neventually. She writes:\n<\/p>\n
\t  “By ten o’clock that morning I found myself locked
\n     in room  fifteen feet square and completely bare except
\n     for a small earthen pitcher and three tattered, coarse,
\n     dark grey\tblankets stiff\twith the grease and sweat of
\n     several generations  of prisoners,\t which I  folded  to
\n     make a  pallat on\tthe stone  floor My  cell formed one
\n     corner of the dormitory building and looked out on to a
\n     yard at the end of the compound farthest from the gate.
\n     The two  outer walls were open to the elements; instead
\n     of windows,  there were  three four-foot  wide openings
\n     barred from  the floor  to a  height of eight feet. The
\n     door was  fastened with  a long  iron  bolt  and  heavy
\n     padlock; the  walls. covered  in patchy whitewash, wear
\n     pock-marked high  and low\twith holes  of\tlong-removed
\n     nails. In\tone! corner a rickety waist-high wooden gate
\n     concealed a  latrine, a niche with raised floor, in the
\n     centre of\twhich was  an oblong  slit directly  over  a
\n     cracked earthen  tub. My latrine jutted out adjacent to
\n     the one  serving the  dormitory where  the rest  of the
\n     women prisoners  slept. The open drains from both these
\n     latrine and  Kalpana’s ran\t past the two outer walls of
\n     my cell, filling the hot nights with a stench that made
\n     me wretch\the crevices  between the broken concrete and
\n     crumbling brickwork  of the  drains were  the  breeding
\n     grounds of\t countless flies  and giant mosquitoes that,
\n     as if  by mutual pre- arrangements, performed alternate
\n     day and night shifts in my cell to disturb my sleep and
\n     rest.\n<\/p><\/blockquote>\n
\t  My first few days in ‘solitary’ were spent as in a
\n     dream, punctuated\tonly  by  the  Chief  Head  Warder’s
\n     morning and  evening rounds  to  check  the  lock,\t the
\n     bustling appearance  of the  matine bringing  food\t and
\n     water, or the wardress fumbling with her keys to unlock
\n     me to clean my teeth and baths.\n<\/p><\/blockquote>\n
442<\/span><\/p>\n
\t  During   the daytime,\t the key  to the gate of the
\n     female word  was in the custody of a ‘duty-warder’, one
\n     of the  hundred and  fifty warders\t in the jail. He was
\n     responsible for  opening the  gate\t to  admit  convicts
\n     bringing food, the doctor or other persons on essential
\n     business. Administration  of the  jail was in the hands
\n     or a staff of Assistant Jailors and clerks, subordinate
\n     to the  Jailor who\t had overall  responsibility for the
\n     day to  day running of the prison. He was answerable to
\n     the most  exalted personage  in the jail hierarchy, the
\n     Superintend (dent.\n<\/p><\/blockquote>\n
\t  His unpredictable  temper  and  behaviour  were  a
\n     source of\tas much\t exasperation to his subordinates as
\n     to ourselves He demonstrated his authority by reversing
\n     his previous instructions so many times that in the end
\n     nobody was\t really sure  what he wanted. The jail staff
\n     operated by  by-passing hi\t n as much as possible so as
\n     not to  get caught\t out if\t he happened  to change\t his
\n     mind.”<\/p><\/blockquote>\n
     Judicial opinion across the Atlantic, has veered to the
\nview that  it is near-insanity to inflict prolonged solitary
\nsegregation upon  prisoners. And  the British System has bid
\nfarewell to solitary confinement as a punishment. I refer to
\nthese contemporary  developments not  to hold on their basis
\nbut to\tget a  feel of\tthis  jail  within    jail.  Without
\nempathy, decision-making may be futility.\n<\/p>\n
     It is  fair to  state that Sri Soli Sorabjee, expressed
\nhimself\t  for jail reform and his heart was with those whose
\nlimited\t liberty   was\tham   strung,  although\t he  pleaded
\nstrenuously that  the reformist\t goal could  be\t reached  by
\nreading new  meaning without  voiding the  provision. So  he
\ntried to  tone down the acerbity of the isolation imposed on
\nBatra by  calling it  statutory\t segregation,  not  solitary
\nconfinement. But,  `as will  be later  revealed, the  former
\nhides  the   harshness\tverbally   but\tretains\t  the  sting
\nvirtually. Presbyter is priest writ large.\n<\/p>\n
     A host  of criminological\tspecialists has consistently
\nviewed\twith   consternation  the   imposition\tof  solitary
\nconfinement    punitively-and,\t   obviously,\t  preventive
\nsegregation stands  on a  worse footing,  since it  does not
\nhave even  a  disciplinary  veneer.  I\tmay,  with  eclectic
\nbrevity,  quote\t  from\tthe  wealth  of\t juristic  crudition
\npresented to  us by  Shri Chitale  in support  of his thesis
\nthat forced  human segregation,\t whatever its  label,  is  a
\nbarbaric cruelty  which has  outlived its  utility  and\t the
\nassumption  that   condemned   prisoners   or\tlifers\t are
\ndangerously violent is a facile fiction.\n<\/p>\n
443<\/span><\/p>\n
     One main thrust, however, of the congregate school came
\n     on the  issue of the effects of constant and unrelieved
\n     isolation of  prisoners. It was unnatural, the New York
\n     camp insisted, to leave man in solitary, day after day,
\n     year after\t year; indeed, it was` not unnatural that it
\n     bred insanity.”(1)
\n     “Harlow and  Harlow (1962)\t have conducted\t experiments
\n     with  species  closely  related  to  human\t beings.  Of
\n     special interest  are the\tvariables  involved  in\t the
\n     causation of  psycho pathological\tsyndromes in man. In
\n     measuring the  relation between  social environment and
\n     social  development,   Harlow  reports  that  the\tmost
\n     constant and  dramatic finding  that  social  isolation
\n     represents the  most destructive  abnormal environment.
\n     As this isolation progresses from partial to total, the
\n     severity  of   impairment\t   increases,  ranging\tfrom
\n     schizord-like postures to depressive-type postures.”(2)
\n     Eloquent  testimony   to  man’s  need  for\t belonging,,
\n     acceptance, and  approval is provided by the experience
\n     of small  groups of  scientists, officer,\tand enlisted
\n     personnel\twho   voluntarily  subjected  themselves  to
\n     isolated antartic\tliving for the better part of a year
\n     (Robrer,  1961).\tDuring\t this\tperiod\t troublesome
\n     individuals  were\t occasionally  given   the   “silent
\n     treatment” in which a man would be ignored by the group
\n     as if  he did  not exist.\tThis  ‘isolation’  procedure
\n     resulted  in   a  syndrome\t  called  the\t‘long  eye’,
\n     characterized by varying combinations of sleeplessness,
\n     outbursts of crying, hallucinations, a deterioration in
\n     habits of\tpersonal hygiene, and tendency fr the man to
\n     move aimlessly about or to lie in his bunk staring into
\n     space. These  symptoms cleared  up when  he  was  again
\n     accepted by  and permitted\t to interact  with others in
\n     the group.”(3)
\n     “The use  of the dark or isolation cell-the hangover of
\n     the  medieval   dungeon-known  in\tprison\tparlance  as
\n     ‘Klondika`,  is  probably\tthe  most  universally\tused
\n     prison punishment in
\n     (1)  David J.  Rotman. Historical perspectives-Justice,
\n\t  Punishment, Treatment by Leonard Oreland, 1973, p.\n<\/p>\n
\t  144.
\n     (2)  Psychiatrist and  the\t Urban-setting-Comprehensive
\n\t  Text Book  of Psychiatrist-ll,  2nd  Ed.  Vol.  II
\n\t  (1976) by  A\t.  M.  Freeman,\t Harlod\t I.  Kaplan,
\n\t  Benjamin J. Sedock, p. 2503.\n<\/p>\n
     (3)  James C.  Coleman-Abnormal Psychology\t and  Modern
\n\t  Life p. 105.\n<\/p>\n
12-526SCI\/78
\n444<\/span>
\n     the history of American penology.(1)
\n     Some prisoners  are kept  in these\t gloomy\t places\t for
\n     month. What  to do\t with a rebellious prisoner bedevils
\n     all wardens,  but a  sustained sojourn  in a punishment
\n     cell is  not the  answer. The excessive use of Klondike
\n     is a  grim example\t of what  is known  to\tstudents  of
\n     corrections as ‘deed end’ penology. Resorting to it for
\n     long periods  o time is n illustration of total lack of
\n     imagination and outmoded prison administration, all too
\n     current in\t most of  our prisons  even today  Not\tmuch
\n     different from  the  dark\tor  isolation  cell  is\t the
\n     ‘segregation’ block  or ward.  In this isolated part of
\n     the prison\t an inmate  may\t be  placed  because  he  is
\n     ‘uncooperative’.  is  considered  dangerous  or  a\t bad
\n     influence, or  for some  other reason arrived at by the
\n     warden  his deputy in charge of custody.”\n<\/p>\n
     A much  more recent  case which  bids well\t to become a
\n     cause clebre  is that  of Robert  Shroud who  has spent
\n     approximately the\tsame period of time in ‘segregation’
\n     in the  federal prisons  of Leavenworth  and  Alcatraz.
\n     Stroud was\t first sent  to prison\twhen he was nineteen
\n     for killing  a man\t in Alska  in\t1909. While  in\t the
\n     Leavenworth prison he killed a guard in the dining room
\n     for which\the was sentenced to be hanged. This sentence
\n     was commuted to life by President Woodrow Wilson. While
\n     in prison\tin  ‘segregated\t cell’,\t Stroud\t became\t all
\n     expert in\tdisease of  birds and  is  alleged  to\thave
\n     become a world-wide authority in his field.(2)
\n     “Regarded as  a rational  method of treatment, cellular
\n     confinement is   curious  monument of human perversity.
\n     That it should have been established shows the absolute
\n     ignorance of criminal nature which existed at the time;
\n     that  it\tshould\tstill\tpersist\t shows\tthe  present
\n     necessity for   widespread\t popular knowledge  of these
\n     matters. It  may be  possible. to\tlearn to  ride on  a
\n     wooden horse,  or to  swim on a table, but the solitary
\n     cell  does\t  not  provide\twooden\tsubstitute  for\t the
\n     harmonising influence f honest society.(3)
\nCriminological jurists\tlike Dr.  Bhattacharya, who was also
\njudge of he Calcutta High Court, take the view that cellular
\nor separate confinement deserves to be condemned:\n<\/p>\n
     (1)  Harry\t Elmer\tBarnes\tand  Negley  K.\t Testers-New
\n\t  Horzons in Criminology, 3rd Ed. 2p. 351-352.
\n     (2)  Royal Commission  on Capital\tPunishment 1949-1953
\n\t  Report pp. ;217.\n<\/p><\/blockquote>\n
     (3) Havelock  Ellis, The  Criminal, 5th  Edn. 1914,  r.\n<\/p><\/blockquote>\n
327.
\n445<\/span>
\n     Many  penologists\t in  India  take  exception  to\t the
\n     solitary confinement  rule. It is hard to differentiate
\n     between this  as an  mode of judicial punishment and by
\n     way of  a jail  punishment for  the results are equally
\n     disastrous to  the physical  and mental health of those
\n     subjected to them”.(1)
\n     Yahya Ali.\t J., in 1947, loll before our constitutional
\ncharter Came  into being,  had\texpressed  himself  strongly
\nagainst ‘solitary  confinement’ and  we feel  more  strongly
\nabout it  and against  it.  Our\t humane\t order\tmust  reject
\nsolitary  confinement’\tas  horrendous.\t The  learned  Judge
\nobserved :\n<\/p>\n
     ” Solitary\t confinement should  not be  ordered  unless
\n     there are\tspecial features  appearing in\tthe evidence
\n     such as extreme violence or brutality in the commission
\n     of the offence. The only reason given by the Magistrate
\n     is that  the ‘sanctity  or home  life has become to him
\n     (the appellant)  a mere  mockery and the desire to take
\n     what he  wants regardless\tof ownership is not in him’.
\n     This can  be said\tof every  person convicted  under S.
\n     379, Penal\t Code and  I do\t not consider  that to\tbe I
\n     circumstance justifying  the passing  of  an  order  of
\n     solitary confinement.  The direction regarding solitary
\n     confinement will be deleted.”\n<\/p><\/blockquote>\n
     “As  regards   the\t sentence   relating   to   solitary
\n     confinement the  attention of the Magistrate is invited
\n     to my  judgment in\t Criminal Appeal  No 114 of 1947. As
\n     pointed out in that judgment although the imposition of
\n     the sentence  of solitary; confinement was legal, under
\n     the Larceny  Act of  1861 (24  and 25 Vict. Ch. 96) the
\n     power was very rarely exercised by a criminal Court. By
\n     enacting 56  and 57  Vict.\t Ch.  54  on  22-9-1893\t the
\n     provisions\t in   Larceny  Act   relating  to   solitary
\n     confinement  which\t had  become  obsolete\tfor  several
\n     decade by\tthat date  were formally repealed. A century
\n     of experience  has\t  thus led to its abandonment in the
\n     United  Kingdom  and  at  the  present  day  it  stands
\n     condemned and  has generally  given place\tto  work  in
\n     association during\t the day and confinement in cell for
\n     the  night,  in  cases  where  isolation  at  night  is
\n     considered necessary  for a  brief time  for particular
\n     prisoners all exclusively for the maintenance of prison
\n     discipline Although  in the  medieval times  under\t the
\n     influence of  the eccesiastics  it was  considered that
\n     cellular confinement as a
\n     (1) B. K. Bhattacharya, Prisons, p. 117,
\n     (2) AIR 1947 Madras 381
\n446<\/span>
\n     means of  promoting reflection  and penitence,  it came
\n     since to  be realised that this kind of treatment leads
\n     to a  morbid state\t of mind  and  not  infrequently  to
\n     mental derangement and as a form of torture it fails in
\n     its effect\t on the\t public. It must, therefore, so long
\n     as is  part of  the Indian Penal Code, be administered,
\n     if ever  in the  most exceptional cases of unparalleled
\n     atrocity or brutality.”<\/p><\/blockquote>\n
     The Law Commission of India in its 42nd Report took the
\nview that  solitary confinement was “out of tune with modern
\nthinking and  should not find a place in the Penal Code as a
\npunishment to  be  ordered  by\tany  criminal  court”.\tSome
\nambivalent observation\tthat such  treatment may  perhaps be
\nnecessary as  a measure\t OF jail  discipline has  been\tmade
\nwithout any  special supportive\t reasons as  to why  such  a
\npenelogical horror  as long  solitary confinement  should be
\nallowed to  survive after death within the prison. Probably,
\nall that  was meant  by the  Commission was  that, for\tvery
\nshort  spells\tand  under   ameliorative  conditions,\t the
\n‘solitary’ may be kept alive as a disciplinary step.\n<\/p>\n
     The propositions  of law canvassed in Batra’s case turn
\non what\t is solitary confinement as a punishment and what is
\nnon-punitive custodial\tisolation  of  a  prisoner  awaiting
\nexecution. And secondly, if what is inflicted is, in effect,
\n‘solitary’, does section 30(2) of the Act authorise it, and,
\nif it  does, is\t such a\t rigorous regimen constitutional. In
\none sense,  these questions  are pushed\t to the\t background,
\nbecause Batra’s submission is that he is not ‘under sentence
\nof death’  within the  scope of section 30 until the Supreme
\nCourt has  affirmed and Presidential mercy has dried up by a
\nfinal ‘nay’.  Batra has\t been  sentenced  to  death  by\t the
\nSessions Court.\t The sentence  has since been confirmed, but
\nthe  appeal  for  Presidential\tcommutation  are  ordinarily
\nprecedent to  the hangmen’s  lethal move,  and remain  to be
\ngone through.  is contention is that solitary confinement is
\na separate  substantive\t punishment  of\t maddening  severity
\nprescribed by sections 73 of the Indian Penal Code which Can
\nbe imposed  only by  the Court;\t and so\t tormenting is\tthis
\nsentence that even the socially less sensitive Penal Code of
\n1 860  has interposed,\tin its\tcruel tenderness, intervals,
\nmaxima and  like softening  features in both sections 73 and\n<\/p>\n
7. Such\t being the  penal situation,  it is  argued that the
\nincarcertory   insulation    inflicted\t by    the    Prison
\nSuperintendent\ton   the  petitioner   is  virtual  solitary
\nconfinement unauthorised  by the  Penal Code and, therefore,
\nillegal.  Admittedly,\tno  solitary  confinement  has\tbeen
\nawarded to  Batra. So,\tif he  is de facto so confined it is
\nillegal. Nor  does a  sentence of  death under\tsection\t 53,
\nI.P.C. carry with it a supplementary
\n447<\/span>
\nsecret clause  of solitary  confinement. What  warrant\tthen
\nexists for  A solitary\tconfinement on\tBatra  ?  None.\t The
\nanswer offered is that he is not under solitary confinement.
\nHe is  under ‘statutory\t confinement’ under the authority of
\nsection 30(2)  of the  Prisons Act  read with section 366(2)
\nCr. P.C.  It will  be a\t stultification of judicial power if
\nunder guise  of using  section 30(2)  o the Prisons Act, the
\nSuperintendent\tinflicts   what\t is  substantially  solitary
\nconfinement which  is a\t species of  punishment\t exclusively
\nwithin the  jurisdiction of  the criminal  court.  We  hold,
\nwithout hesitation,  that Sunil Batra shall no be solitarily
\nconfined. Can  he be  segregated from  view  and  Voice\t and
\nvisits and  comingling, by  resort to  section 30(2)  of the
\nPrisons Act  and reach\tthe same result ? To give the answer
\nwe must\t examine the  essentials of  solitary confinement to
\ndistinguish it from being ‘confined in a cell apart from all
\nother prisoners’.\n<\/p>\n
     If solitary  confinement is  a revolt against society s
\nhumane essence,\t there is  no  reason  to  permit  the\tsame
\npunishment to  be smuggled  into the prison system by naming
\nit differently. Law is not a formal label, nor logomachy but
\na working  technique of\t justice. The  Penal  Code  and\t the
\nCriminal Procedure  Code regard\t punitive solitude too harsh
\nand the\t Legislature cannot be intended to permit preventive
\nsolitary confinement, released even from the restrictions of
\nsection 73  and 74 I.P.C., Section 29 of the Prisons Act and
\nthe restrictive Prison Rules. It would be extraordinary that
\na far  worse solitary  confinement, masked  as safe custody,
\nsans maximum,  sans intermission, sans judicial oversight or
\nnatural justice,  wold be  sanctioned. Commonsense  quarrels
\nwith such nonsense.\n<\/p>\n
     For a  fuller comprehension of the legal provisions and
\ntheir  construction  we\t may  have  to\tquote  the  relevant
\nsections and thereafter make a laboratory dissection thereof
\nto get\tan understanding of the components Which make up the
\nlegislative sanction  for semi-solitary\t detention  of\tShri
\nBatra. Section 30 of the Prisons Act rules:\n<\/p>\n
     “30  (1)  Every prisoner under sentence of death shall,
\n\t  immediately on  his arrival  in the  prison  after
\n\t  sentence, be\tsearched by,  or by  order  of,\t the
\n\t  Deputy Superintendent,  and all  articles shall be
\n\t  taken from  him which\t the  Deputy  Superintendent
\n\t  deems it  dangerous or inexpedient to leave in his
\n\t  possession.\n<\/p><\/blockquote>\n
\t  (2)  Every such  prisoner, shall  be confined in a
\n\t  cell apart  from all other prisoners, and shall be
\n\t  placed by  day and  by night\tunder  charge  of  a
\n\t  guard.”\n<\/p><\/blockquote>\n
448<\/span><\/p>\n
This falls  in Chapter V relating to discipline of prisoners
\nand has to be read in that context. Any separate confinement
\ncontemplated  in   section  30(2)   has\t this\tdisciplinary
\nlimitation as  we will\tpresently see.\tIf we pull to pieces
\nthe whole provision it becomes clear that section 3() can be
\napplied only  to  a  prisoner  “under  sentence\t of  death”.
\nSection 30(2)  which speaks  of “such” prisoners necessarily
\nrelates to  prisoners\tunder sentence\tof death. We have to
\ndiscover when  we can  designate a  prisoner  as  one  under
\nsentence of death.\n<\/p>\n
     The  next\t attempt  is   to  discern  the\t meaning  of
\nconfinement “in\t a cell apart from all other prisoners”. The
\npurpose is to maintain discipline and discipline is to avoid
\ndisorder.   fight   and\t  other\t  untoward   incidents.\t  if
\napprehended.\n<\/p>\n
     Confinement inside a prison does not necessarily import
\ncellular isolation. Segregation of one person all alone in a
\nsingle cell  is solitary  confinement. That  is\t a  separate
\npunishment which  the Court  alone can impose. It would be a
\nsubversion of  this statutory  provision (section  73 and 74
\nI.P.C.) to impart a meaning to section (1)(2) of the Prisons
\nAct whereby  a disciplinary  variant of solitary confinement
\ncan be\tclamped down  on a  prisoner, although\tno court has
\nawarded such  a punishment,  by a  mere construction,  which
\nclothes an executive officer, who happens to be the governor
\no the  jail, with  harsh judicial  powers to be exercised by
\npunitive restrictions and unaccountable to anyone. the power
\nbeing discretionary and disciplinary.\n<\/p>\n
     Indeed, in\t a jail,  cells are  ordinarily occupied  by
\nmore than  one inmate  and community life inside dormitories
\nand cells  is common.  Therefore, “to be confined in a cell”
\ndoes not  compel us  to the  conclusion that the confinement
\nshould be in a solitary cell.\n<\/p>\n
     Apart from\t all other  prisoners” used in section 30(2)
\nis also\t a phrase  of flexible import. ‘Apart’ has the sense
\nof ‘To\tone side,  aside . apart from each other, separately
\nin action  or function’ (Shorter Oxford English Dictionary).
\nSegregation into  an isolated  cell is\tnot warranted by the
\nword. All that it connotes is that in a cell where there are
\na plurality  of inmates\t the death  sentence will have to be
\nkept separated\tfrom the  rest in  the same  cell but no too
\nclose to  the others. And this separation can be effectively
\nachieved because the condemned prisoner will be placed under
\nthe charge  of a  guard by  day and by night. The guard will
\nthus stand  in between the several inmates and the condemned
\nprisoner. Such a meanings preserves the disciplinary purpose
\nand avoids  punitive harshness.\t Viewed function  ally,\t the
\nseparation is  authorised, not obligated. that is to say, if
\ndiscipline needs  it the  authority shall be entitled to and
\nthe prisoner
\n449<\/span>
\nshall be  liable to separate keeping within the same cell as
\nexplained A  above.  `Shall”  means,  in  this\tdisciplinary
\ncontext, “shall\t be liable to”. If the condemned prisoner is
\ndocile and  needs the  attention of fellow prisoners nothing
\nforbids the jailor from giving him that facility.\n<\/p>\n
     When we  move on  to Chapter  XI we  come across Prison
\nOffences which\tare listed  in section\t45. Section 46 deals
\nwith punishment for such offences. We reproduce the relevant
\nportion:\n<\/p>\n
\t  46. The  Superintendent  may\texamine\t any  person
\n     touching any  such offence, and determine thereupon and
\n     punish such offence by
\n\t  (6)  imposition of  handcuffs of  such pattern and
\n\t  weight, in such manner and for such period, as may
\n\t  be  prescribed  by  rules  made  by  the  Governor
\n\t  General in Council;\n<\/p><\/blockquote>\n
\t  (7)  imposition of  fetters of  such\tpattern\t and
\n\t  weight, in such manner and for such period, as may
\n\t  be  prescribed  by  the  rules  made\tby  Governor
\n\t  General in Council;\n<\/p><\/blockquote>\n
\t  (8)  separate\t confinement   for  any\t period\t not
\n\t  exceeding three months;\n<\/p><\/blockquote>\n
\t  Explanation:-\t Separate   confinement\t means\tsuch
\n\t  confinement with  or without\tlabour as secludes a
\n\t  prisoner from\t communication with,  but  not\tfrom
\n\t  sight of  other prisoners, and allows him not less
\n\t  than one  hour’s exercise per diem and to have his
\n\t  meals\t in  association  with\tone  or\t more  other
\n\t  prisoners; .\n<\/p><\/blockquote>\n
\t  (10) cellular\t confinement   for  any\t period\t not
\n     exceeding fourteen days;\n<\/p><\/blockquote>\n
\t  Provided  that,  after  such\tperiod\tof  cellular
\n\t  confinement an  interval of not less duration than
\n\t  such period  must elapse  before the\tprisoner  is
\n\t  again\t  sentenced    to   cellular   or   solitary
\n\t  confinement:\n<\/p><\/blockquote>\n
\t  Explanation:-\t Cellular   confinement\t means\tsuch
\n\t  confinement with  or without\tlabour\tas  entirely
\n\t  secludes a  prisoner from  communication with, but
\n\t  not from sight of other prisoners.”<\/p><\/blockquote>\n
450<\/span><\/p>\n
     Sub-section (6)  and (7)  relate to  “irons”  and\thave
\nrelevance to  the Sobraj  case which  we will presently deal
\nwith. Sub-section  (8) speaks  of “separate confinement” for
\nany period  not exceeding  three months.  There is a further
\nexplanation which  to some  extent softens the seclusion. It
\nobligates the authority not to keep the prisoner “from sight
\nof other  prisoners” and allows him not less than one hour’s
\nexercise per  diem and to have his meals in association with
\nother prisoners.  Thus it  is clear  that even\tif  a  grave
\nprison offence\thas been  committed, the punishment does not
\ncarry segregated  cellular existence  and  permits  life  in
\nassociation in\tmess and exercise, in view and voice but not
\nin communication  with other  prisoners. Moreover,  punitive
\nseparate confinement  shall  not  exceed  three\t months\t and
\nsection\t 47   interdicts   the\t combination   of   cellular
\nconfinement and\t “separate confinement”\t so as not to exceed
\ntogether the  periods  specified  there.  It  is  useful  to
\nmention that “cellular confinement” is a stricter punishment
\nthan separate  confinement and\tit  cannot  exceed  14\tdays
\nbecause of its rigour. It entirely excludes a prisoners from
\ncommunication with  other prisoners but it shall not exclude
\na prisoner from sight o other prisoners.\n<\/p>\n
     Solitary confinement  has the  severest  sting  and  is
\nawardable only by Court. o island a human being, to keep him
\nincommunicado from  his fellows is the story of the Andamans
\nunder the British, of Napoleon in St. Helena. The anguish of
\naloneness has  already been dealt with by me and I hold that
\nsection 30(2)  provides no alibi for any form of solitary or
\nseparated cellular  tenancy for\t the death sentence, save to
\nthe extent indicated.\n<\/p>\n
     This study clearly reveals that solitary confinement as
\na sentence under the Penal Code is the severest. Less severe
\nis cellular  confinement under section 46(10) of the Prisons
\nAct and\t under section\t.6(8). obviously, disciplinary needs
\nof keeping apart a prisoner do not involve any harsh element
\nof punishment  at all.\tWe cannot,  therefore, accede to any
\nargument which will upset the scheme or subvert the scale of
\nseverity. Section  30(2), understood in the correct setting,
\nplainly excludes  any trace  of severity and merely provides
\nfor a  protective  distance  being  maintained\tbetween\t the
\nprisoner under\tdeath  sentence\t and  the  other  prisoners,
\nalthough they  are accommodated\t in the\t same cell  and\t are
\nallowed to  communicate with  each other,  eat together, see
\neach other  and for  all other\tpractical purposes  continue
\ncommunity life.\n<\/p>\n
     An analysis  of the provisions of the Penal Code and of
\nthe Prisons  Act yields\t the clear  inference  that  section
\n30(2) relates to separation without isolation, keeping apart
\nwithout\t close\t confinement.\tWhatever   the\t name.\t the
\nconsequence of the ‘solitary’ regime has been maddening:\n<\/p>\n
451<\/span><\/p>\n
\t  “So  many   convicts\twent   mad  or\t died  as  a
\n\t  consequence of  the solitary\tregime that  by\t the
\n\t  mid-19th century it was generally abandoned…”(1)
\nThe ‘separate  system’, the  “silent system”, the “hole” and
\nother variants possess the same vice. In the present case we
\nare satisfied  that what  reigns in  Tihar  for\t ‘condemned’
\nprisoners  is\tsound  proof,\tsight-proof,   society-proof
\ncellular insulation  which is  a first\tcousin\tto  solitary
\nconfinement.<\/p><\/blockquote>\n
     Section  366(2),\tCr.P.  Code   has  bearing  on\tthis
\ndiscussion, for it states:\n<\/p>\n
     “The  Court  passing  the\tsentence  shall\t commit\t the
\n     convicted person to jail custody under a warrant.”<\/p><\/blockquote>\n
     So, the  Court awards  only  a  single  sentence  viz.,
\ndeath. But  it cannot  be  instantly  executed\tbecause\t its
\nexecutability is  possible only\t on confirmation by the High
\nCourt. In  the meanwhile, he cannot be let loose for he must
\nbe available  for decapitation\twhen the  judicial processes
\nare exhausted.\tSo it  is that\tsection 365(2) takes care of
\nthis awesome  interregnum by  committing the convict to jail
\ncustody. Form 40 authorises safe keeping. We may extract the
\nrelevant part of the Form:\n<\/p>\n
\t  “This is  to authorise  and require you to receive
\n     the said  (prisoner’s name)  into your  custody in\t the
\n     said jail,\t together With\tthis warrant,  and him there
\n     safely to\tkeep until  you\t hall  receive\tthe  further
\n     warrant or\t order of  this Court,\tcarrying into effect
\n     the order of the said Court”.<\/p><\/blockquote>\n
     This ‘safe\t keeping’ in  jail custody  is\tthe  limited
\njurisdiction of\t the jailor. The convict is not sentenced to
\nimprisonment. He is lo sentenced to solitary confinement. He
\nis a  guest in\tcustody, in  the safe  keeping of  the host-
\njailor until  the  terminal  hour  of  terrestrial  farewell
\nwhisks him  away to  the halter.  This is trusteeship in the
\nhands o\t the Superintendent  not imprisonment  in  the\ttrue
\nsense. Section 366(2) Criminal procedure Code (Jail Custody)
\nand  Form  4  (safely  to  keep)  underscore  this  concept,
\nreinforced by the absence of a sentence o imprisonment under
\nsection 53,  read with\tsection 73,  Indian Penal  Code. The
\ninference is  inevitable that  if the  ‘condemned’ men\twere
\nharmed by  physical or\tmental torture\tthe  law  would\t not
\ntolerate the  doing since  injury  and\tsafety\tare  obvious
\nenemies.  And  once  this  qualitative\tdistinction  between
\nimprisonment and safe keeping within
\n     (1) Britannica  Book of  the Year\t1975-Events of 1974.
\np.567.\n<\/p>\n
452<\/span><\/p>\n
the prison  is grasped,\t the power  of\tthe  jailor  becomes
\nbenign. Batra,\tand others of his ilk, are entitled to every
\ncreature comfort  and cultural\tfacility that  compassionate
\nsafe-keeping  implies.\t Bed  and   pillow,  opportunity  to
\ncommerce with  human kind, worship in shrines, if any, games
\nbooks, newspapers, writing material, meeting family members,
\nand all\t the good  things of  life, so long as lie lasts and
\nprison facilities  exist. To  distort  safe-keeping  into  a
\nhidden opportunity to cage the ward and to traumatize him is
\nto betray  the custody of the law Safe custody does not mean
\ndeprivation, isolation,\t banishment from  the lenten banquet
\nof prison  life and infliction o travails as if guardianship
\nwere best fulfilled by making the ward suffer near-insanity.
\nMay be,\t the Prison  Superintendent has\t the alibi of prison
\nusage, and  may be,  he is innocent of the inviolable values
\nof our\tConstitution. May be there is something wrong in the
\nprofessional training  and the\tprison culture.\t May be,  he
\nmisconceives his  mission unwittingly  to help God ‘Whom God
\nwishes\tto   destroy,  He   first  makes   mad’.  For.\tlong
\nsegregation lashes  the senses\tuntil the spirit lapses into
\nthe neighbourhood  of lunacy. Safe-keeping means keeping his
\nbody and  mind in  fair condition.  To torture\this mind  is
\nunsafe keeping.\t Injury\t to  his  personality  is  not\tsafe
\nkeeping. So,  section 366,  Cr.P.C. forbids  any  act  which
\ndisrupts the man in his body and mind. To preserve his flesh
\nand crush  his spirit  is not safe keeping. whatever else it
\nbe.\n<\/p>\n
     Neither the  Penal Code nor the Criminal Procedure Code
\nlends validity\tto any action beyond the needs of safety and
\nany other  deprivation, whatever  the reason,  has  not\t the
\nauthority  of\tlaw.  Any   executive  action  which  spells
\ninfraction of  the life and liberty of a human being kept in
\nprison precincts, purely for safe custody, is a challenge to
\nthe basic  notion of  the rule of law-unreasonable, unequal,
\narbitrary and  unjust. A  death\t sentence  can\tno  more  be
\ndenuded or  life’s  amenities  than  a\tcivil  debtor,\tfine
\ndefaulter, maintenance\tdefaulter  or  contemner  indeed,  a
\ngross confusion accounts for this terrible maltreatment.\n<\/p>\n
     The  Prisons   Act\t (Sec.\t 30(2))\t spells\t  out\twith
\nspecificity  the  point\t of  departure\tfrom  ordinary\tjail
\ncustody needed\tin the\tcase of\t those\t‘under\tsentence  of
\ndeath’. That  is to  say, they\tget the\t same conditions  of
\nprison life  as\t other\tgeneral\t prisoners,  except  in\t two
\nparticulars. During hours of cellular confinement, condemned
\nprisoners shall\t be  secluded  from  others.  Dusk  to\tdawn
\nkeeping aside  is one restriction. Such sentences shall also
\nbe subject  to twenty-four  hour watch by guards. Both these
\nare  understandable  restraints\t in  the  setting  of  death
\nsentence as  reasonable concomitants of safe custody without
\ninflicting cruelty.\n<\/p>\n
     To exaggerate  security  unrealistically  is  morbidity
\nand, if\t it is\ta pervasive  malady, deserves psychiatry for
\nthe prison administration.\n<\/p>\n
453<\/span><\/p>\n
In  every  country,  this  transformation  from\t cruelty  to
\ncompassion  within  jails  has\tfound  resistance  from\t the
\nechelons  and\tthe  Great   Divide   between\tpre-and-post
\nConstitution penology  has yet to get into the metabolism of
\nthe Prison  Services. And  so, on  the\tnational  agenda  of
\nprison\treform\tis  on-going  education\t for  prison  staff,
\nhumanisation of\t the profession and recognition of the human
\nrights of the human beings in their keep.\n<\/p>\n
     In my  Judgment section  30(2) does  not  validate\t the
\nState’s treatment of Batra. To argue that it is not solitary
\nconfinement  since   visitors  are   allowed,  doctors\t and
\nofficials come\tand a guard stands by, is not to take it out
\nof the category.\n<\/p>\n
     Since arguments  have been\t addressed, let\t us  enquire
\nwhat are  the vital  components of  solitary  confinement  ?
\nAbsent statutory  definition, the  indication we  have is in
\nthe Explanation to Paragraph 510 of the Jail Manual:\n<\/p>\n
\t  ‘Solitary confinement\t means such confinement with
\n     or without\t labour as  entirely secludes  the  prisoner
\n     both from\tsight  of,  and\t communication\twith,  other
\n     prisoners.”<\/p><\/blockquote>\n
     The hard  core of\tsuch confinement is (a) seclusion of
\nthe prisoner,  (b) from\t sight of  other prisoners,  and (c)
\nfrom communication  with other\tprisoners. To  see a  fellow
\nbeing is  a solace to the soul. Communication with one’s own
\nkind is\t a balm to the balm to the aching  spirit. Denial of
\nboth with  complete segregation superimposed, is the journey
\nto insanity.  To test  whether a certain type of segregation
\nis, in Indian terms, solitary confinement, we have merely to
\nverify whether\tinterdict on  sight and\t communication\twith
\nother prisoners\t is imposed.  It is no use providing view of
\nor conversation\t with jail  visitors, jail officers or stray
\nrelations. The\tcrux of\t the matter  is\t communication\twith
\nother prisoners\t in full  view. Bad  fellows in\t misery have
\nheartloads to  unload and real conversation between them has
\na   healing   effect.\tNow   that   we\t  have\t an   Indian
\nconceptualisation of  solitary\tconfinement  in\t the  Prison
\nManual itself,\tlexical exercises, decisional erudition from
\nother countries\t and legomachic\t niceties with\treference to
\nlaw  dictionaries  are\tsupererogatory.\t Even  the  backward
\npsychiatry of the Jail Manual considers continuation of such
\nconfinement as\t“likely to  prove injurious to mind or body”
\nor even\t prone to  make the  person  “permanently  unfit  to
\nundergo such  confinement” [vide paragraph 512(7) and (9) of
\nthe Jail Manual.\n<\/p>\n
     In\t Words\t and  Phrases\t(Permanent  Edn.)   solitary
\nconfinement as\ta punishment  is regarded  as “the  complete
\nisolation of  the prisoner  from all  human society  and his
\nconfinement in a cell of considerable size so
\n454<\/span>
\narranged that  he had  no direct intercourse or sight of any
\nhuman  being  and  no  employment  or  instruction”.  It  is
\nworthwhile comparing  the allied  but less harsh confinement
\ncalled “close  confinement” which  means “such\tcustody, and
\nonly such  custody as  will safely  secure the production or
\nthe body  of the  prisoner on  the  day\t appointed  for\t his
\nexecution”.\n<\/p>\n
     A more practical identification of solitary confinement
\nis what we find in Black’s Law Dictionary:\n<\/p>\n
\t  “ln a general sense, the separate confinement of a
\n     prisoner, with  only occasional  access  of  any  other
\n     person and\t that only  at the discretion of the jailor;
\n     in a  stricter  sense,  the  complete  isolation  of  a
\n     prisoner from  all human society and his confinement in
\n     a cell  so arranged  that he  has no direct intercourse
\n     with or  sight of any human being, and no employment or
\n     instruction.”\n<\/p><\/blockquote>\n
Complete  isolation  from  all\thuman  society\tis  solitary
\nconfinement in\tits stricter sense. The separate confinement
\nof a  person with occasional access of other persons is also
\nsolitary confinement.\n<\/p>\n
     The ingenious  arguments to  keep Batra in solitudinous
\ncell  must  fail  and  he  shall  be  given  facilities\t and
\namenities of  common prisoners\teven  before  he  is  ‘under
\nsentence of death’. Is he under sentence of death? Not yet.\n<\/p>\n
     Clearly, there  is a  sentence of\tdeath passed against
\nBatra by  the Sessions\tCourt but  it is provisional and the
\nquestion is  whether under  section 30(2) the petitioner can
\nbe confined  in a cell all by Himself under a 24-hour guard.
\nThe key\t words which  call for humanistic interpretation are
\n“under sentence of death” and “confined in a cell apart from
\nall other prisoners”.\n<\/p>\n
     A convict\tis ‘under  sentence of\tdeath when, and only
\nwhen.  the   capital  penalty  inexorably  operates  by\t the
\nautomatic process  of the  Law without\tany slip between the
\nlip and\t the cup.  Rulings of  this Court  in Abdul Azeez v.
\nKarnataka(1) and  D. K. Sharma v. M. P. State(2), though not
\ndirectly on  this point,  strongly suggest this reasoning to
\nbe sound.\n<\/p>\n
Section 366 Cr. P.C. has pertinence at this point:\n<\/p>\n
\t  “366. (1)  When the  Court of\t Sessions  passes  a
\n     sentence of  death, the  proceedings shall be submitted
\n     to the  High  Court  and  the  sentence  shall  not  be
\n     executed unless it be confirmed by the High Court.
\n     (1) [1977] (3) S.C.R. 393.\n<\/p><\/blockquote>\n
     (2) [1976] (2) S.C.R. 289
\n455<\/span>
\n\t  (2) The  Court passing  the sentence\tshall commit
\n     the  A   convicted\t person\t to  jail  custody  under  a
\n     warrant.”<\/p><\/blockquote>\n
     So\t it   is  clear\t  that\tthe  sentence  of  death  is
\ninexecutable until  ‘confirmed by  the High  Court’. A self-
\nacting sentence\t of death  does not  come into\texistence in
\nview of\t the impediment\t contained in  section\t366(1)\teven
\nthough\tthe   Sessions\tCourt  might  have  pronounced\tthat
\nsentence.\n<\/p>\n
     I go  further. Let\t us assume  that the  High Court has
\nconfirmed that\tdeath sentence\tor has de novo imposed death
\nsentence. Even\tthere is  quite a likelihood of an appeal to
\nthe Supreme Court and the plenary power of the highest court
\nextends to  demolition or the death sentence. Naturally, the
\npendency of  the appeal itself inhibits the execution of the
\nsentence. Otherwise, the appellate power will be frustrated,
\nthe man\t executed and  the Supreme  Court stultified  if  it
\nupsets the death sentence later. In our view, when an appeal
\npends against  a conviction  and sentence  in regard  to  an
\noffence punishable  with death sentence, such death sentence
\neven if\t confirmed by  the High\t Court shall not work itself
\nout until  the Supreme\tCourt has  pronounced.\tsection\t 415
\nCr.P.C. produces this result inevitably.\n<\/p>\n
\t  “415. (1)  Where a person is sentenced to death by
\n     the High  Court and an appeal from the judgment lies to
\n     the Supreme  Court under  sub-clause (a)  or sub-clause\n<\/p><\/blockquote>\n
     (b) of E clause (1) of article 134 of the Constitution,
\n     the  High\tCourt  shall  order  the  execution  of\t the
\n     sentence to  be postponed\tuntil the period allowed for
\n     preferring such appeal has expired, or, if an appeal is
\n     preferred within  that period,  until  such  appeal  is
\n     disposed of.\n<\/p><\/blockquote>\n
\t  (2)  Where  a\t sentence  of  death  is  passed  or
\n     confirmed by  the High  Court, and the person sentenced
\n     makes an application tc the High Court for the grant of
\n     a certificate under article 132 or under sub-clause (c)
\n     of clause\t(l) of article ] 34 of the Constitution, the
\n     High Court shall order the execution of the sentence to
\n     be postponed  until such  application is disposed of by
\n     the High  Court, or if a certificate is granted on such
\n     application, until the period allowed for preferring an
\n     appeal to\tthe Supreme  Court on  such certificate\t has
\n     expired.<\/p><\/blockquote>\n
\t  (3)  Where  a\t sentence  of  death  is  passed  or
\n     confirmed by  the High  Court, and\t the High  Court  is
\n     satisfied that  the person sentenced intends to present
\n     a petition to the Supreme
\n456<\/span>
\n     Court for\tthe grant  of special  leave to appeal under
\n     article. 136  of the Constitution, the High Court shall
\n     order the execution of the sentence to be postponed for
\n     such period as it considers sufficient to enable him to
\n     present such petition
\n     Article 72\t and 161  provide for  commutation of  death
\nsentence even  like sections  433, 434\tand 435\t Cr.P.C. The
\nrules made  under the  Prisons Act,  taking  note  of  these
\nprovisions, provide  for a  petition for  commutation by the
\nprisoner. Rule 547 and rule 548 framed under the Prisons Act
\nrelate to the subject of petitions for mercy:\n<\/p>\n
     “(a) Rules framed by the Government  of  India :
\n\t  I.-  lmmediately  on\treceipt\t of  a\twarrant\t for
\n     execution consequent  on the  confirmation by  the High
\n     Court of  sentence of  death, Jail Superintendent shall
\n     inform the\t convict concerned  that if  he\t desires  to
\n     submit a  petition for mercy, it should be submitted in
\n     writing  within   seven  days   of\t the  date  of\tsuch
\n     intimation.\n<\/p><\/blockquote>\n
\t  II- If  the convicts\tsubmit a petition within the
\n     period of\tseven days prescribed by Rule I it should be
\n     addresses both  to the  local  Government\tand  to\t the
\n     Governor-General in  Council, and the Superintendent of
\n     Jail shall\t forthwith despatch it, in duplicate, to the
\n     Secretary to  the local  Government in  the  Department
\n     concerned. together  with a  covering letter  reporting
\n     the date  fixed for  the execution\t an(l shall  certify
\n     that the  execution has  been stayed pending receipt of
\n     the orders of the Governor in Council and the Governors
\n     General in\t Council on  the petition  if  no  reply  is
\n     received within  15 days  from the date of the despatch
\n     of the  petition the  Superintendent shall telegraph to
\n     the Secretary to the local Government drawing attention
\n     to the  fact, but\the shall  in no\t case carry  out the
\n     execution before  the receipt of the local Government’s
\n     reply.”<\/p><\/blockquote>\n
     It follows\t that during  the pendency of a petition for
\nmercy before  the State\t Governor or  the President of India
\nthe death  sentence  shall  not\t be  executed.\tThus,  until
\nrejection of the clemency motion by these
\n457<\/span>
\ntwo high  dignitaries it  is not  possible to predicate that
\nthere is  a self  executory  death  sentence.  Therefore,  a
\nprisoner becomes legally subject. to a self-working sentence
\nof death  only when  the clemency  application both prisoner
\nstands rejected.  Of course,  thereafter  section  30(2)  is
\nattracted.  A  second  or  a  third,  a\t fourth\t or  further
\napplication for mercy docs not take him out of that category
\nunless there  is a specific order by the competent authority
\nstaying the execution of the death sentence.\n<\/p>\n
     The conclusion  inevitably follows\t that Batra, or, for
\nthat matter,  others like  him, cannot be classed as persons
\n“under sentence\t of death”. Therefore the cannot be confined
\napart from  other prisoner.  Nor is he sentenced to rigorous
\nimprisonment and  so cannot be forced to do hard labour.. He
\nis in custody because the Court has, pending confirmation of
\nthe death  sentence, commanded\tthe Prison Authority to keep
\nthe sentence  in custody. The concrete result may be clearly
\nset out.\n<\/p>\n
     Condemned prisoner\t like Batra  shall be merely kept in
\ncustody and shall not be put to work like those sentenced to
\nrigorous imprisonment.\tThese prisoners\t shall not  be\tkept
\napart or  segregated except on their own volition since they
\ndo not\tcome under  section 30(2). They shall be entitled to
\nthe amenities  of ordinary inmates in the prison like games,
\nbooks,\tnewspapers,  reasonably\t good  food,  the  right  to
\nexpression, artistic  or other, and normal clothing and bed.
\nIn a  sense,  they  stand  better  than\t ordinary  prisoners
\nbecause\t they\tare  not   serving  any\t  term\tof  rigorous
\nimprisonment, as  such. However,  if their gregarious wishes
\ninduce them  to live  in  fellowship  and  work\t like  other
\nprisoners they\tshould be allowed to do so. To eat together,
\nto sleep  together, to\twork  together,\t to  live  together,
\ngenerally speaking,  cannot be\tdenied\tto  them  except  on
\nspecific  grounds   warranting\tsuch   a  course,   such  as
\nhomosexual tendencies,\tdiseases, violent  proclivities\t and
\nthe like.  But if  these grounds  are to  be the  basis\t for
\nrevocation of advantages to the prejudice of the sentence he
\nshould be  given a  hearing in brief in essential compliance
\nwith the canons of natural justice.\n<\/p>\n
     Deference to  the erudite\tefforts of Counsel persuades
\nme, before  l part  with this topic to refer to an anthology
\nof Anglo-American opinions, judicial and academic, which has
\nbeen made  available to\t us to\tsome of\t which I  have\tmade
\nreference. The\tJudges in the United States have had to deal
\nwith  the   issue  and\tbefore\tI  wind\t up  on\t the.  legal
\nimplications of\t solitary confinement I may refer to some of
\nthem.\n<\/p>\n
     Punitive segregation  is regarded\tas too harsh that it
\nis limited  to no  more than  8\t days  except  with  special
\napproval of the commissioner
\n458<\/span>
\nof corrections\tin many\t American states…  The average for
\nthis type  of punitive\tincarceration is five days. Now note
\nwhat the U.S District court states:\n<\/p>\n
\t  “This punishment  is imposed\tonly after  a formal
\n     written  notice,  followed\t by  a\thearing\t before\t the
\n     disciplinary committee.”<\/p><\/blockquote>\n
     The emphasis  on limited  periods\tand  hearing  before
\npunishment have been built into the procedure for punishment
\nof solitary  confinement. This is important when we consider
\nwhether any  form of harsh imprisonment, whether of solitary
\nconfinement or\tof  bar\t fetters,  should  not\tcomply\twith
\nnatural\t justice   and\tbe  severely  limited  in  duration.
\nPreventive solitude and fetters are an a fortiori case.\n<\/p>\n
     An Afro-American citizen Sostre, brought a Civil Rights
\naction\t Sostre v.  Rockfeller(2)  complaining\tof  solitary
\nconfinement otherwise  called(l\t punitive  segregation.\t The
\nyear long  stay in  that segregation  cell was\tbitter.\t The
\nsting of  the situation\t was ‘human  isolation loss of group
\nprivileges’. On this Judge held:\n<\/p>\n
\t  “This court  finds that punitive segregation under
\n     the conditions  to which  plaintiff  was  subjected  at
\n     Green Haven is physically harsh, destructive of morale,
\n     dehumanizing  in\tthe  sense  that  it  is  needlessly
\n     degrading, and  dangerous to  the maintenance of sanity
\n     when continued  for more  than a  short period  of time
\n     which should certainly not exceed 15 days’.<\/p><\/blockquote>\n
     The decision  on punitive\tsegregation  confinement  in
\nSostre v. Rockfeller is of value since the case, as here, is
\none of\tindefinite punitive confinement. The Court held that
\nit was\tso disproportionate  that it  amounted to  cruel and
\nunusual punishment:\n<\/p>\n
\t  “The Court  also holds  that the  totality of\t the
\n     circumstances to  which Sostre  was subjected  for more
\n     than a  year was  cruel  and  unusual  punishment\twhen
\n     tested against  the evolving  standards if decency that
\n     mark the progress of maturing society .(Trio v. Dulles,
\n     356 U.S 86 ,101(1958)(Opinion of warren C.J)
\n\t  This condemnation of segregation is the experience
\n     years ago\tof people  going stir  crazy, especially  in
\n     segregation”. (T. 320)) The conditions which undeniably
\n     existed in\t punitive segregation  of Green\t Haven\tthis
\n     Court finds. ” could only
\n     (1)  Justice Punishment,  Treatment by  Leonard Orland,
\n\t  The Free Press New York, p. 293.\n<\/p><\/blockquote>\n
     (2) 312 F. Suppl. 863 (1970).\n<\/p><\/blockquote>\n
459<\/span><\/p>\n
     serve to  destroy completely  the spirit  and undermine
\n     the sanity\t of the\t prisoner “Wright v. Machmann, supra\n<\/p><\/blockquote>\n
     387. F.  2nd at 526, when imposed for more than fifteen
\n     days .  Subjecting a  prisoner to the demonstrated risk
\n     of the  loss   of his  sanity  as\tpunishment  for\t any
\n     offence  in   prison  is\tplainly\t cruel\tand  unusual
\n     punishment as judged by present standards of decency.<\/p><\/blockquote>\n
     What is  of considerable interest is the observation on
\nprocedural due\tprocess whish in our country has its counter
\npart in\t Article 21,  as expounded  in\tManeka\tGandhi.\t The
\nAmerican Judge observed in Sostre’s case
\n\t  Very recently,  the Supreme  Court reiterated\t the
\n     firmly established\t due process  principles that  where
\n     governmental action  may seriously injure an individual
\n     and the  reasonableness of\t that action depends on fact
\n     findings ,\t the evidence  used to prove the governments
\n     case must be disclosed to the individual so that he has
\n     an\t opportunity   to  show\t  that\tit  is\tuntrue.\t The
\n     individual also  have the\tright to retain counsel. the
\n     decision maker’s  should  state  the  reasons  for\t the
\n     determination and\tindicate the  evidence upon which he
\n     relied. Finally,  in such\tcases, the high court ruled,
\n     an impartial decision-maker is essential
\n\t  The Court  holds that\t plaintiff was,\t in  affect,
\n     ‘sentenced’  to   more\tthan  a\t  year\tin  punitive
\n     segregation with  out the\tminimal\t procedural  drastic
\n     punishment upon a prisoner.”\n<\/p>\n
     There has\tbeen considerable emphasis by the Additional
\nSolicitor  general  on\tthe  prison  setting  in  truncating
\nprocessual justice.  The U.S.  District Court  in Sostre had
\nthis to say:\n<\/p>\n
\t  “The\tdifficult   question,  as  always,  is\tthat
\n     process was  due. In  answering that  question, we mays
\n     not uncritically  adopt the  holdings of decisions that
\n     take color\t from contexts\twhere  the  shading  are  as
\n     different\t from the  instant case as the cases we have
\n     discussed:<\/p><\/blockquote>\n
\t  As a\tgeneralization, it  can\t be  said  that\t due
\n     process embodies  the differing  rules  of\t fair  play,
\n     which through  the years,\thave become  associated with
\n     differing\t types\t  of   proceedings.    Whether\t the
\n     constitution requires that a particular right obtain in
\n     a specific proceeding depends upon a
\n13 – 526 SCI\/78
\n460<\/span>
\n     complexity of  factors. The nature of the alleged right
\n     involved,\tthe   nature  of  the  proceeding,  and\t the
\n     possible\tburden\t on   that   proceeding,   are\t all
\n     considerations which must be taken into account
\n     A meaningful  passage in  the appellate judgment in the
\nsame case may be excerpted:\n<\/p>\n
\t  We are  not to  be understood\t as disapproving the
\n     judgement of many courts that our constitutional scheme
\n     does  not\tcontemplate  that  society  may\t commit\t law
\n     breakers to  the capricious  and arbitrary\t actions  of
\n     prison officials. If substantial deprivations are to be
\n     visited upon  a prison,  it is  wise that\tsuch  action
\n     should  at\t  least\t be  premised  on  facts  rationally
\n     determined. This  is not  a concept without meaning. In
\n     most cases\t it would  probably be\tdifficult to find an
\n     inquiry minimally fair and rational unless the prisoner
\n     were con  fronted with  the accusation, informed of the
\n     evidence against him.’
\n     The Supreme  Court of  the United\tstates\tin  Wolf  v.\n<\/p><\/blockquote>\n
McDonnell(1) considered\t the question  of  due\tprocess\t and
\nprison\tdisciplinary   hearing,\t confrontation\t and  cross-
\nexamination and even presence of counsel. Mr. Justice White,
\nspeaking for  the majority,  struck the balance that the due
\nprocess clause demanded and insisted:\n<\/p>\n
\t  . .  We hold\tthat written  notice of\t the charges
\n     must be  given to\tthe dsciplinary-action\tdefendant in
\n     order to inform him of the charges and to enable him to
\n     marshal the  facts and  prepare a\tdefence. At  least a
\n     brief period  of time after the notice, no less than 24
\n     hours, should  be allowed\tto the inmate to prepare for
\n     the appearance before the Adjustment Committee.
\n\t  We  also  hold  that\tthere  must  be\t a  “written
\n     statement by the fact-finders as to the evidence relied
\n     on and reasons`’ for the disciplinary action.
\n\t  Although  Nebraska   does  not   seem\t to  provide
\n     administrative  review  of\t the  action  taken  by\t the
\n     Adjustment\t Committee,   the  actions   taken  at\tsuch
\n     proceedings may  involve review  by other\tbodies. They
\n     might furnish  the basis  of a decision by the Director
\n     of\t Corrections   to  transfer  an\t inmate\t to  another
\n     institution because he is considered “to be incor-
\n     (1) 41 L. Ed. 2d p. 935.\n<\/p><\/blockquote>\n
461<\/span><\/p>\n
     rigible by\t reason of  frequent intentional breaches of
\n     discipline”, and  are certainly likely to be considered
\n     by\t the  state  parole  authorities  in  making  parole
\n     decisions. Written\t records of  proceedings  will\tthus
\n     protect  the  inmate  against  collateral\tconsequences
\n     based on  a  misunderstanding  of\tthe  nature  of\t the
\n     original proceeding.  Further, as\tto the\tdisciplinary
\n     action itself, the provision for a written record helps
\n     to insure\tthat  administrators,  faced  with  possible
\n     scrutiny by state officials and the public, and perhaps
\n     even  the\t courts,  where\t fundamental  constitutional
\n     rights may have been abridged, will act fairly. Without
\n     written  records,\tthe  inmate  will  be  at  a  severe
\n     disadvantage  in\tpropounding  his  own  cause  to  or
\n     defending himself\tfrom others.  lt may  be that  there
\n     will be occasions when personal or institutional safety
\n     are so  implicated, that  the  statement  may  properly
\n     exclude certain  items of\tevidence, but  in that event
\n     the statement should indicate the fact of the omission.
\n     Otherwise, we  perceive no\t conceivable  rehabilitative
\n     objective or  prospect of\tprison disruption  that\t can
\n     flow from\tthe requirement\t of these statements. We are
\n     also of the opinion that the inmate facing disciplinary
\n     proceedings should\t be allowed  to call  witnesses\t and
\n     present  documentary   evidence  in  the  defence\twhen
\n     permitting him to do so will not be unduly hazardous to
\n     institutional safety or correctional goals”.<\/p><\/blockquote>\n
     As to  the right to counsel Mr. Justice White felt that
\nthen the  proceedings may  receive an  “adversary cast”, but
\nproceeded to observe:\n<\/p>\n
\t  “Where an  illiterate inmate is involved, however,
\n     or where  the complexity of the issue makes it unlikely
\n     that the inmate will be able to collect and present the
\n     evidence necessary for an adequate comprehension of the
\n     case, he  should be  free to  seek the  aid of a fellow
\n     inmate, or\t if that  is  forbidden,  to  have  adequate
\n     substitutes aid  in the  form to help from the staff or
\n     from a  sufficiently competent inmate designated by the
\n     staff. We\tneed not pursue the matter further here, how
\n     ever, for\tthere is no claim that respondent Mcdonnell,
\n     is within\tthe class  of inmates  entitled to advice or
\n     help from others in the course of a prison disciplinary
\n     hearing.”\n<\/p><\/blockquote>\n
The learned  Judge, however,  felt that\t in situations where
\nHabeas Corpus  applications had to be made qualified inmates
\nmay be permitted to serve as legal advisers.\n<\/p>\n
     Mr.  Justice   Marshall  went  much  farther  than\t the
\nmajority and observed:\n<\/p>\n
462<\/span><\/p>\n
\t  “.. by  far the  greater  weight  of\tcorrectional
\n     authority\tis   that  greater  procedural\tfairness  in
\n     disciplinary    proceedings,    including\t  permitting
\n     confrontation  and\t  cross-examination,  would  enhance
\n     rather  than  impair  the\tdisciplinary  process  as  a
\n     rehabilitative tool.\n<\/p><\/blockquote>\n
\t  Time\thas   proved  ..  that\tblind  deference  to
\n     correctional officials  does no  real service  to them.
\n     Judicial  concern\twith  procedural  regularity  has  a
\n     direct hearing  upon the  maintenance of  institutional
\n     order; the\t orderly care  with which decisions are made
\n     by the  prison authority  is intimately  related to the
\n     level of  respect\twith  which  prisoners\tregard\tthat
\n     authority.\n<\/p><\/blockquote>\n
\t  There is nothing more corrosive to the fabric of a
\n     public institution\t such as  a prison  than  a  feeling
\n     among those  whom\tit  contains  that  they  are  being
\n     treated unfairly.\n<\/p><\/blockquote>\n
\t  As the Chief Justice noted… “fair treatment ….
\n     will enhance  the chance  of rehabilitation by avoiding
\n     reactions to arbitrariness.”\n<\/p><\/blockquote>\n
\t       ..We  have   recognized\tthat   an  impartial
\n     decision- maker  is a  fundamental requirement  of\t due
\n     process in\t a variety  of relevant\t situations,  and  I
\n     would hold this require lent fully applicable here. But
\n     in my  view there\tis no constitutional impediment to a
\n     disciplinary  board   composed  of\t responsible  prison
\n     officials like  those on the Adjustment Committee here.
\n     While it  might well  be desirable to have persons from
\n     outside  the  prison  system  sitting  on\tdisciplinary
\n     panels, so\t as to eliminate any possibility that subtle
\n     institutional  pressures  may  effect  the\t outcome  of
\n     disciplinary cases\t and  to  avoid\t any  appearance  of
\n     unfairness, in my view due process is satisfied as long
\n     as\t no  member  of\t the  disciplinary  board  has\tbeen
\n     involved in  the investigation  or prosecution  of\t the
\n     particular case,  or has had any other form of personal
\n     involvement in the case.”<\/p><\/blockquote>\n
     Mr. Justice  Douglas, in  his dissent,  quoted from  an
\nearlier case
\n\t  “Certain  principles\t have  remained\t  relatively
\n     immutable our jurisprudence. One of these is that where
\n     govern mental  action seriously  injures an individual,
\n     and the  reasonableness of\t the action  depends on fact
\n     findings, the  evidence  used to prove the Government’s
\n     case must\tbe disclosed  to the  individual so, that he
\n     has an  opportunity to  show that\tit is  untrue. While
\n     this is important in the case of documentary
\n463<\/span>
\n     evidence, it  is even more important where the evidence
\n     consists of  the testimony\t of individuals whose memory
\n     might be  faulty or  who in fact, might be perjurers or
\n     persons   motivated    by\t  malice,    vindictiveness,
\n     intolerance,   prejudice,\t or   jealously.   We\thave
\n     formalized these  protections in  the  requirements  of
\n     confrontation and cross-examination…………… This
\n     Court has\tbeen zealous  to protect  these rights\tfrom
\n     erosion. It  has spoken  out not only in criminal cases
\n     but also in all types of cases where administrative and
\n     regulatory actions were under scrutiny. The decision as
\n     to whether\t an inmate should be allowed to confront his
\n     accusers should  not  be  left  to\t the  unchecked\t and
\n     unreviewable  discretion  of  the\tprison\tdisciplinary
\n     board. The argument offered for that result is that the
\n     danger of\tviolent response  by the  inmate against his
\n     accusers  is   great,  and\t  that\t only\tthe   prison
\n     administrators  are   in  a   position  to\t weigh,\t the
\n     necessity of  secrecy in each case. But it is precisely
\n     this unchecked  power of prison administration which is
\n     the problem that due process safeguards are required to
\n     cure. “Not\t only, the principle of judicial review, but
\n     the whole\tscheme of  American government,\t reflects an
\n     institutionalized mistrust\t of any\t such unchecked\t and
\n     unbalanced\t power\t over  essential   liberties.\tThat
\n     mistrust does not depend on an assumption of inveterate
\n     venality  or  incompetence\t on  the  part\tof  men;  in
\n     Power….”\n<\/p>\n
     Going the whole length of extending the right to cross-
\nexamination, the  learned Judge\t took  the  view  that\tfair
\nprocedure  inside   prisons  is\t  part\t of   a\t  successful
\nrehabilitative programme, and observed:\n<\/p>\n
\t  “The goal is to reintegrate inmates into a society
\n     where men\tare supposed  to be  treated fairly  by\t the
\n     government, not arbitrarily. The opposed procedure will
\n     be counter-productive.  A report prepared for the Joint
\n     Commission on  Correctional Manpower  and Training\t has
\n     pointed out  that the  “basic hurdle (to reintegration)
\n     in the  concept of\t a prisoner  as a non-person and the
\n     jailor as\tan absolute  monarch. The  legal strategy to
\n     surmount this  hurdle is  to adopt rules maximizing the
\n     prisoner’s freedom,  dignity, and\tresponsibility. More
\n     particularly, the\tlaw must  respond to the substantive
\n     and procedural claims that prisoners may have….”<\/p><\/blockquote>\n
     The substance of these decisions is that ‘a prisoner is
\nnot temporarily\t a slave of the State and is entitled to the
\nfair  process\tof  law\t  before  condemnation\tto  solitary
\nconfinement. The U.S. Judges`
\n464<\/span>
\ngenerally have\trefused to  accept arbitrary  or  capricious
\ndiscipline in jail administration.\n<\/p>\n
\t  “We would  not lightly condone the absence of such
\n     basic  safeguards\tagainst\t arbitrariness\tas  adequate
\n     notice, an\t , opportunity\tfor the prisoner to reply to
\n     charges  lodged   against\t him,\tand   a\t  reasonable
\n     investigation into the substantial discipline.(1)
\n     Another passage  from Judge  Fainberg in  the same case
\ndeserves our attention:\n<\/p><\/blockquote>\n
\t  “In this  Orwellian age, punishment that endangers
\n     sanity, no\t less than  physical injury by the strap, is
\n     prohibited by the Constitution. Indeed, we have learned
\n     to our  sorrow  in\t the  rest  few\t decades  that\ttrue
\n     inhumanity seeks  to destroy  the\t psyche rather\tthan
\n     merely the\t body. The  majority opinion emphasizes that
\n     after all\tSostre\tcould  have  obtained  release\tfrom
\n     isolation at  my time by agreeing to abide by the rules
\n     and to cooperate. Perhaps that is so, but that does not
\n     change the\t case.. The  possibility of endless solitary
\n     confinement is  still there, unless the prisoner ‘gives
\n     in’. The  same observation could be made if Sostre were
\n     tortured until  he so  agreed, but\t no one\t would argue
\n     that torture  is therefore permitted. The point is that
\n     the  means\t  used\t to   exact   submission   must\t  be
\n     constitutionally  acceptable,   and   the\t threat\t  of
\n     virtually endless\tisolation that\tendangers sanity  is
\n     not.” (emphasis, added)
\n     Quite a few other decisions of this lesser level courts
\nof the\tUnited States  have been  brought to  our notice  by
\ncounsel in  an endeavour  to validate or invalidate solitary
\nconfinement from  a constitutional  angle. Unless  driven to
\npronounce upon\tconstitutionality we  may not  go  into\t the
\nquestion at  all. Even so, for a perspicacious understanding
\nof the\tfacets of  solitary confinement,  its soul or rather
\nits soullessness,  I may  refer to a few of the cited cases.\n<\/p><\/blockquote>\n<\/blockquote>\n
The Court  will stand four square between a prisoner and the
\nmethodology  of\t  destroying  completely   tile\t spirit\t and
\nundermining the\t sanity of the prisoner in jail. This we do,
\nnot because  of\t anything  like\t the  Eighth  Amendment\t but
\nbecause unreasonable restrictions and arbitrary deprivations
\nare abnoxious  to Part\tIII, especially\t Articles 14 and 19,
\neven within the prison setting.<\/p><\/blockquote>\n
     (1) Sostre V. Rockefeller. 312 F. SUPDI. 863 (1970)
\n465<\/span>
\n     The facie submission, ‘that the determination as to the
\nmethods\t  of dealing  with such\t incorrigible persons  is  a
\nmatter of internal management of State prisons and should be
\nleft to\t the discretion\t of  prison  administrators….’  is
\nuntenable if,  within  the  cell,  fundamental\tconcepts  of
\ndecency do not prevail and barbaric conditions and degrading
\ncircumstances do  violence to  civilised standards of humane
\ndecency as  the Court  pointed out  in Hancock v. Avery. The
\ngoals of  prison keeping,  especially if  it  is  mere\tsafe
\nkeeping, can  be attained  without requiring  a prisoner  to
\nlive in the exacerbated conditions of bare floor solitude.\n<\/p>\n
     Functionally speaking, the court has a distinctive duty
\nto reform  prison practices  and  to  inject  constitutional
\nconsciousness into the system.\n<\/p>\n
\t  “The challenge  of prison reform is too compelling
\n     for courts\t to decline to exercise their inherent power
\n     to\t  protect   the\t  constitutional   rights   of\t the
\n     incarcerated. Affording  such protection  demands\tthat
\n     courts  do\t  more\tthan   merely  invalidate   specific
\n     practices;\t it   demands\tthat   they   confront\t the
\n     institution of  prison as\ta  whole.  The\ttotality  of
\n     conditions approach and the purposive model of analysis
\n     afford framework for this confrontation.”(‘)
\n\t  Moreover, prison  officials may  welcome  judicial
\n     intervention,  because  it\t enables  them\tto  initiate
\n     reforms that  are politically  and financially  costly.
\n     Studies  have   demonstrated  that\t one  by-product  to
\n     totality  of  conditions  prison  cases  is  that\tthey
\n     sensitized both  the public and prison officials to the
\n     need for prison reform. As a result, progressive prison
\n     authorities and  humanitarian citizens’ groups are able
\n     to take  advantage of  this  increased  sensitivity  to
\n     advocate reform.”\n<\/p><\/blockquote>\n
The Sobraj Case
\n     I now  switch to  the  averments  in  the\tpetition  by
\nSobraj. Chief Justice Beg and his companion Judges including
\nme, it\tmay be\tright to  state here,  did incidentally\t see
\nSobraj (the  other petitioner),\t standing in  chains in\t the
\nyard, with  iron on wrists, iron on ankles iron on waist and
\niron to\t link up, firmly rivetted at appropriate places, all
\naccording to rules !
\n     The manacled numbers of the Tihar Jail community appear
\nlo be  alarmingly large\t and fluctuating,  if we  go by\t the
\naverments in the
\n     (1) Harward  Civil\t Right-Civil  Liberties\t Law  Review
\n(Vol. ]2)
\n466<\/span>
\naffidavit of the petitioner and the counter affidavit by the
\nState. In  January, 1978 according to Sobraj, there were 207
\nunder trial prisoners with bar fetters in Tihar Jail and all
\nof them, exception Sobraj, were Indian citizens, all of them
\nbelonging to  the ‘C’  class, which  is a  poverty sign, and
\nmany of\t them minors  ! We  are remind\tof what\t Douglas, J.
\nObserved in Hicks:(1)
\n\t  “The wanderer, the pauper, the unemployed-all were
\n     deemed to be potential criminals……….
\n\t  I do\tnot see\t how economic or social statutes can
\n     be made  a crime  any more than being a drug addict can
\n     be.\n<\/p>\n
” Even\tthe intervener,\t Citizens for  Democracy, have, with
\npassion but  without partisanship,  complained that  ‘over a
\nhundred other prisoners in Tihar Jail are subjected to these
\ninhuman\t conditions’   !  The  State  has  controverted\t the
\narithmetic but\thas not refuted the thrust of the submission
\nthat  a\t substantial  number  of  undertrial  prisoners\t has
\nsuffered aching irons over their anatomy. As against 207 the
\nState admits  a total  of 93  prisoners.. ‘in  bar fetters’.
\nThere is  no dispute that all but the petitioner were of the
\n‘C’ class  category, that  is, men  whose socio-economic lot
\nwas weak.  The Superintendent of the Central Jail has a case
\nthat on\t January 20,  1978, ‘the bar fetters of 41 prisoners
\nwere removed’. Likewise, on February 6, 1978, bar fetters of
\n26  prisoners  were  removed.  The  trend  of  the  counter-
\naffidavit  is\tthat  this  Superintendent  has\t taken\tsome
\nameliorative measures  to normalise  conditions in the Jail.
\nThe discrepencies  between the\tcompeting statements  do not
\ndemolish  the\tgravemen  of  the  charge  that\t the  “iron’
\nmethodology  of\t  keeping  discipline  has  had\t a  somewhat
\ndangerous access  into the  prison  Superintendent’s  mental
\nkit. If\t irons must  rule the jail community there is jejune
\njustice in  our prison\tcampuses.  The\tabolition  of  irons
\naltogether in  some states without calamitous sequel as e.g.
\nKerala and Tamil Nadu, is worth mention.\n<\/p>\n
     Now the  Sobraj facts. Sobraj has been in custody since
\nJuly 6,\t 1976, having been arrested from Vikram Hotel, along
\nwith three  criminal companions\t of British,  Australian and
\nFrench extraction.  His interpol  dossier is  stated  to  be
\nterrible and  his exploits  include  jail  break  and  grave
\ncrime. We  merely  mention  this  fact\tbut  decline  to  be
\ndeflected by  it because  it is\t disputed, although the jail
\nofficers cannot\t be faulted  if they  are influenced by such
\ninformation. The  Sobraj story,\t since his  arrest  in\tJuly
\n1976, is  one of  continuous  and  indeterminate  detention,
\npartly under  the Maintenance  of Internal  Security Act and
\ncurrently as an undertrial facing serious charges, including
\n     (1)383 US 252 (1966)
\n467<\/span>
\nmurder. The  prisoner challenged  the legality\tof arbitrary
\n‘irons’ in  A the  High Court  but was\tgreeted with laconic
\ndismissal. The\tparsimonious words,  in which  the order was
\ncouched, ran:\n<\/p>\n
\t  This is a petition from jail. In view of the facts
\n     the petition  is not  maintainable. It  is dismissed in
\n     limine.  The  petitioner  informed\t of  the  order’….
\n     Discomfited Sobraj has moved this Court.<\/p><\/blockquote>\n
     The disturbing  fact of years of pre-trial imprisonment
\napart, the  agonising aspect, highlighted by Dr. Ghatate for
\nthe petitioner\tand by\tShri Tarkunde as intervener, is that
\nuntil the Court sometime ago directed a little relaxation in
\nthe rigour  of the ‘iron’ prescription, Sobraj (and how many
\nsubmissive  sufferers\tlike  Him  there  are  ?)  has\tbeen
\ncontinuously subjected\tto  the\t torturesome  ‘bar  fetters,
\nthrough twenty\tfour hours daily and every day of the month,
\n‘religiously’ for  nearly two  years, what  with the  kindly
\npresumption of\tinnocence jurisprudentially playing upon him
\nin tragic irony. Sobraj bitterly complains of persistence in
\nbar fetters  notwithstanding wounds  on\t heels\tand  medical
\nadvice to  the\tcontrary.  The\tState  defends\tbar  fetters
\nstatutorily  by\t  section  56\tof  the\t  Prisons  Act\t and
\nrealistically as  preventive  medicine\tfor  ‘dangerousness’
\npathology, in  exercise of  the wise  discretion of the Jail
\nSuperintendent,\t overseen   by\tthe   revisory\teye  of\t the
\nInspector  General  of\tPrisons\t and  listened\tto  by\tJail
\nVisitors. The  bar fetter procedure, denounced by counsel as
\nintolerable, is\t described by  the State as inconvenient but
\nnot inhumane, evil but inevitable, where the customer is one
\nwith dangerous\tdisposition and\t attainments. It is admitted
\nthat Sobraj  has been  in fetters  to inhibit  violence\t and
\nescape.\n<\/p>\n
     The sorrows  of Sobraj  cannot be\tappreciated nor\t his
\nconstitutional claims  evaluated without a fuller account of
\nthe bar\t fetter chapter of his jail life. Ever since July 6,
\n1976, he  has been  kept in  bar fetters,  duly welded,\t all
\nthese  months\twithout\t respite   through  the\t  period  of
\npreventive  detention\tand  after.   We  have\t it  on\t the
\npetitioner’s word  that no  holiday was\t given\tto  the\t bar
\nfetter therapy,\t although the  Resident Medical\t Officer has
\nnoted, in  the history ticket of the prisoner, entries which
\nare tell-tale.\n<\/p>\n
\t  “9-2-1977-multiple  infected\t wounds\t  on   right
\n     ankles. Bar  fetters be  removed from  right leg for 15
\n     days.\n<\/p><\/blockquote>\n
\t\t\t\t     Sd\/- Dr. Mittal. R.M.O.\n<\/p><\/blockquote>\n
\t  9-2-1977-Bar fetters removed from right leg for 15
\n     days on medical advice.\n<\/p><\/blockquote>\n
\t\t\t\t\t   Sd\/- Mr. Mukhreja
\n\t\t\t  Assistant Superintendent of Jails.\n<\/p><\/blockquote>\n
468<\/span><\/p>\n
\t\t\t\t\t     Sd\/- Mr. Andhur
\n\t\t\t\tDy. Superintendent of Jails.\n<\/p><\/blockquote>\n
\t  12-2-1977-Bar fetters also to be removed from left
\n     foot.\n<\/p><\/blockquote>\n
\t\t\t\t\t     Sd\/- Dr. Bokra.\n<\/p><\/blockquote>\n
\t  12-2-1977-Fetters be\tremoved from  left foot\t for
\n     two weeks, on medical advice.\n<\/p><\/blockquote>\n
\t\t\t\t\t     Sd\/- Mr. Marwa,
\n\t\t\t\t Dy. Superintendent of Jails
\n\t\t\t\t\t(Respondent No. 3) r
\n\t  18-2-1977-He is  desperate and dangerous prisoner;<\/p><\/blockquote>\n
     for security  reasons it  is necessary  to keep  him in
\n     fetters. His  wounds may  also  be\t dressed.  (emphasis
\n     added)
\n\t\t\t\t\t   Sd\/- Mr. Marwa, n
\n\t\t\t\t Dy. Superintendent of Jails
\n\t\t\t\t\t  (Respondent No. 3)
\n     The  counter-affidavit   of  Shri\t Marwa,\t  the\tthen
\nSuperintendent, has taken up an extreme position about which
\nI am  special.\tFor  instance,\the  has\t asserted  that\t the
\nResident Medical  officer had examined the petitioner on 3rd
\nSeptember  1977,   and\tfound\tno  wound   on\this  ankles.
\nSignificantly on  September 4, 1977, this Superintendent has
\nrecorded a  note in  his journal: “1 was informed by Shri S.
\nS. Lal,\t A.S., that  Charles Sobraj  has inflicted injury on
\nhis ankles deliberately. I am certain in my mind that he has
\ndone so\t as to\tbe produced  before Hon’ble Supreme Court of
\nIndia on  6-9-1977 in  connection with\this  Writ  Petition,
\nwherein he  has mentioned  that his  ankles are\t injured and
\nthus his bar fetters should be removed.\n<\/p>\n
     In\t an   endeavour\t to   make  out\t  that\t there\t was
\ndiscrimination and  recklessness in  the imposition  of\t bar
\nfetters, the petitioner has set out two circumstances.\n<\/p>\n
     He has averred:\n<\/p>\n
\t  “It is  significant to mention that the undertrial
\n     prisoners in  the\tfollowing  serious  cases  who\twere
\n     confined in Tihar Jail were without any fetters:-\n<\/p>\n
\t  (i)  All undertrial  prisoners in  Baroda Dynamite
\n\t       case who were also detained under MISA;\n<\/p>\n
\t  (ii) All the\tpersons accused in the Hon’ble Chief
\n\t       Justice of India (Shri A. N. Ray’s) attempt:\n<\/p>\n
469<\/span><\/p>\n
\t  (iii)All accused  persons in Samastipur Bomb Blast
\n\t       case where  the former Railway Minister, Shri
\n\t       L. N. Mishra, was killed;\n<\/p>\n
\t  (iv) All accused  persons  in\t Vidya\tJain  murder
\n\t       case; and\n<\/p>\n
\t  (v)  All  accused   persons  in  famous  Bank\t Van
\n\t       Robbery case held at New Delhi;\n<\/p>\n
     What may  have relevance  to the  criticism of  the bar
\nfetters technology running riot in Tihar Jail is another set
\nof circumstances  about this  high security  Jail which\t was
\ncommissioned after Independence (1958).\n<\/p>\n
     The first\tis, that  a large number of prisoners, a few
\nhundred at times-minors and undertrials too-are shackled day
\nand night  four days  and months  on end  by bar fetters-too
\nshocking to contemplate with cultural equanimity. And, this,
\nprima facie,  shows up the class character of jail injustice
\nfor an\tincisive sociologist. Practically all these fettered
\ncreatures are  the poor.  Sobraj is  the only class prisoner
\nsubjects fetters,  the others  being class people. A cynical
\nbut to\tobserver may comment necessarily violent in Gandhian
\nIndia but  that the  better-off are  able to  buy the  class
\njustice current\t in the\t ‘caste\t system’  behind  the  bars-
\naccording to  rule, of\tcourse. Anyone\twhose socio-economic
\nlevel is  higher is a class prisoner, undertrial or convict;
\neveryone whose\tlot is\tbelow that  line is a class jailbird
\nwho is\toften deprived\tof basic amenities and obliged to do
\nhard labour  if he  is a convict. Poverty cannot be degraded
\nas ‘dangerousness’  except by  subversion of our egalitarian
\nethos. How  come that  all the\tundertrial who are under bar
\nfetters are  also from the penurious ? This, suspiciously is
\n‘soft’ justice syndrome towards the rich, not social justice
\nresponse towards the poor.\n<\/p>\n
     The petitioner  has alleged additional facts to paint a
\npara-violent  picture\tof   the   prison   atmosphere\t and
\nfrightening profile  of the jail hierarchy. For instance, if
\nI may excerpt the portions of his affidavit.-\n<\/p>\n
\t  “In para  630 of  the Punjab Jail Manual, which is
\n     of 1898, still the punishment of Whipping, para 628 and
\n     629, is  valid and\t the Jail  Authorities used the said
\n     Whipping Rule  at their  own discretion, that is to say
\n     almost  daily  beating  the  prisoners  and  some\ttime
\n     beating them  up to  Death as  a case which happened in
\n     1971 and  went unpunished\tbut for\t some Jail officials
\n     suspended for an year.’
\n470<\/span>
\n     Some flegellations\t and killings are referred to by him
\nwhich  may   be\t skipped.  The\tlurid  lines  so  drawn\t are
\nblistering commentary  on the  barbarity of  prison  regimen
\neven if\t a fraction of the imputations possesses veracity. A
\nfraction of  the facts alleged, if true may warrant the fear
\nthat a little Hitler lingers around Tihar precincts.<\/p><\/blockquote>\n
     The counter-version on the factual and legal aspects of
\nthe  Sobraj  charges  against  the  Prison  Authorities\t has
\nalready been indicated.\n<\/p>\n
     Right at this stage, 1 may read S. 56, which is the law
\nrelied on  to shackle  the limited  freedom of\tmovement  of
\nSobraj:\n<\/p>\n
\t  56.  Whenever\t  the  Superintendent  considers  it
\n     necessary (with  reference either\tto the\tState of the
\n     prison of\tthe character of the prisoners) for the safe
\n     custody of\t any prisoners\tthat they should be confined
\n     in\t irons,\t  he  may,   subject  to   such\t rules\t and
\n     illustrations as  may be  laid down  by  the  Inspector
\n     General with  the sanction\t of the Local Government, so
\n     confine them.’
\n     Before formulating\t the heads of argument in the Sobraj
\ncase it\t is necessary  to state that the respondent, after a
\nvain effort  to secure\tcertain pre-Independence  government
\nproceedings  of\t the  Punjab,  now  in\tPakistani  archives,
\nadmitted  that\t it  could  not\t make  good  the  validating
\nexistence,  of\tthe  local  government’s  sanction  for\t the
\ninstructions  of   the\tInspector  General  of\tPrisons,  as
\nrequired by  S. 56  of the Act, although such an instruction
\nis found  in the  Jail Manual.\tNothing else,  which compels
\njudicial notice\t is available, and so the rule is not show`n
\nto be  valid. Sobraj’s\tgrievance is shocking shackling with
\nbar fetters.  Iron  on\twrists,\t iron  on  ankles,  iron  in
\nbetween, welded\t strongly that\tall oppressive 6 Ibs. weight
\nhampers movement,  hinders sleep  and hurts  all the time so
\nmuch that life is poor purchase. And yet he is in a stage of
\npresumptive innocence  and under judicial custody. The basic
\nfact   that    Sobraj\tis    fettered\t during\t  the\tJail
\nSuperintendent’s sole  discretion is  not denied; and he has
\nbeen enduring  this distress  for a  chronic couple of years
\nwith no\t hope of  relief except the unlikely change of heart
\nof the\thead of the prison. The defence of the State is that
\nhigh-risk  prisoners,\teven  the  under-trials,  cannot  be
\nallowed to  bid for escape, and where circumstances justify,
\nany result  oriented measure,  including fetters, is legally
\npermissible. It\t is argued  that a prison is not play-ground
\nand hyper-sensitive  reaction to  irons\t may  be  functional
\nfolly, if we realise that custodial security has high prison
\npriority. Dangerous  persons, if  they are to be produced to
\nanswer justice,\t must suffer indefinite immobilisation, even
\nif  painfully\tinconvenient,  not  punitively\timposed\t but
\npreventively clamped down, until the danger lasts.\n<\/p><\/blockquote>\n
471<\/span><\/p>\n
Rights and Realities
\n     Sobraj, in\t chains, demands  constitutional rights\t for
\nman. For  there are several men like him in the same prison,
\nundertrials, indigents,\t even minors.  The official  journal
\nallegedly  registers   the  laconic   reason  for  the\tJail
\nSuperitendent’s\t fiat\tto  impose  bar\t fetters  and  these
\n‘dangerous’ reasons  are recorded  in English in the history
\ntickets of the (mostly) ‘C’ class `un-English’ victims. This
\nvoodoo is  in compliance  with the  formula of\tthe rule and
\njail visitors  march past.  The Inspector-General of prisons
\nrevises, if moved, and the spirit-crushing artifice survives
\nas a  technique of  jail discipline. Ordinarily, the curtain
\nfalls, the groan or moan is hardly heard, the world falls to
\nsleep, the Constitution and the Court sublimely uphold human
\nrights but the cells weep for justice unheard.\n<\/p>\n
     There is  a sad  fascination to read Nehru on the Naini
\nPrison which is but a portrait of any Indian prison of those
\ntimes:\n<\/p>\n
\t  ‘For years and years many of these ‘lifers’ do not
\n     see a  child or woman, or even animals. They lose touch
\n     with the  outside world  completely and  have no  human
\n     contacts left.  They brood and warp themselves in angry
\n     thoughts of  fear and  revenge and\t hatred; forget\t the
\n     good of  the world, the kindness and joy, and live only
\n     wrapped up\t in the\t evil, till  gradually\teven  hatred
\n     loses its\tedge and  life becomes\ta soul less thing, a
\n     machine like  routine. Like automations they pass their
\n     days  each\t  exactly  like\t the  other,  and  have\t few
\n     sensations; except\t one fear  ! From  time to  time the
\n     prisoner’s body  is weighted  and measured.  But how is
\n     one to  weigh the\tmind and  the spirit  which wilt and
\n     stunt themselves  and  wither  away  in  this  terrible
\n     atmosphere of  oppression ?  People argue\tagainst\t the
\n     death  penalty,   and  their  arguments  appeal  to  me
\n     greatly. But  when I see the long drawn out agony, of a
\n     life spent\t in prison, I feel that it is perhaps better
\n     to have  that penalty  rather than\t to  kill  a  person
\n     slowly and\t by degrees.  one of the ‘lifers’ came up to
\n     me once  and asked me. “What of us lifers ? Will Swaraj
\n     take us out of this hell ?”<\/p><\/blockquote>\n
     The great\tproblems of law are the grave crises of life
\nand both  can be  solved not  by the  literal instruction of
\nprinted enactments,  but by the interpretative sensitization
\nof the heart to ‘the still, sad music of humanity.\n<\/p>\n
     The humane thread of jail jurisprudence that runs right
\nthrough is  that no  prison  authority\tenjoys\tamnesty\t for
\nunconstitutionality,  and  forced  farewell  to\t fundamental
\nrights is an institutional outrage in our
\n472<\/span>
\nsystem where  stone walls and iron bars shall bow before the
\nrule of\t law  Since  life  and\tliberty\t are  at  stake\t the
\ngerontocracy of\t the Jail  Manual  shall  have\tto  come  to
\nworking terms with the paramountcy of fundamental rights.\n<\/p>\n
     A valuable\t footnote to  this approach may be furnished
\nby recalling  how Mahatma  Gandhi regarded  jails as  social
\nhospitals’ and\tPrime Minister(1)  Shri Morarji Desai, while
\nhe was\tHome Minister  of Bombay  way back  in 1952 told the
\nconference of Inspectors-General of Prisons:\n<\/p>\n
\t  “it is not enough to consider a prisoner merely as
\n     a prisoner..  To my  mind a prisoner is not a matter of
\n     contempt.\t Even\tthe worst criminal, as you call him,
\n     is after  all a human being as good or bad as any other
\n     outsider: what  ever remedies you can find out to treat
\n     prisoners,\t unless\t  your\tattitude  changes,  and\t you
\n     consider that the prisoners inside the jails are really
\n     human  beings  equal  in  self-respect  to\t your  self-<\/p><\/blockquote>\n
     respect, you  will never  be affective  in whatever you
\n     do, because  you will affect them only in so far as you
\n     extract from  them the  same respect  for you  and also
\n     good feeling  for you  and that  cannot come unless you
\n     behave on\tequal terms withy them …”(2)
\n     A synthetic  grasp of  the claims of custodial security
\nand prison  humanity is essential to solve the dilemma posed
\nby the\tAdditional Solicitor  General.\t If we\tare soft  on
\nsecurity, escapes  will escalate:  so be stern, red in tooth
\nand claw’  is the  submission.\t Security first and security
\nlast, is  an argument  with a familiar and fearful ring with
\nDwyerlist memories and recent happenings.   To cry’ wolf’ as
\na cover\t for official  violence upon helpless prisoners is a
\ncowardly act.\tChaining  all  prisoners,  amputating  many,
\ncaging some,  can all  be fobbed off, if every undertrial or
\nconvict were  painted as  a  potentially  dangerous  maniac.
\nAssuming a  few are  likely to\tescape,\t  would you  shoot a
\nhundred prisoners  or whip  everyone every day or fetter all
\nsuspects  to   prevent\tone   jumping-ail?\tThese\twild
\napprehensions have  no value in our human order, if Articles
\n14, 19\tand 21\tare the prime actors to stampede courts into
\nvesting unlimited  power in  risky hands  with no convincing
\nmechanism for  prompt, impartial  check.   A sober  balance,
\nrights that alone will fill the constitutional bill.\n<\/p>\n
     (1) Indian Correctional Journal, Vol. 1, No.2 July 1957
\np.6a.\n<\/p>\n
     (2)   Indian Correctional\tJournal , Vol. 1, No.2, July
\n1957 pp.25.\n<\/p>\n
473<\/span><\/p>\n
     The grave\tdanger of over-emphasizing order, discipline
\nand security   within  the prison, while interpreting S. 56,
\nis that\t it lands  itself unawares  to a  pre-conceived, one
\nsided meaning.\n<\/p>\n
\t  “The unconscious  or\thalf-conscious\twresting  of
\n     fact and  word and\t idea to suit a pre-conceived notion
\n     or the  doctrine or  principle of\tone’s preference  is
\n     recognised by  Indian logicians  as  one  of  the\tmost
\n     fruitful sources  of fallacy; and it is perhaps the one
\n     which  it\t is  most   difficult  for   even  the\tmost
\n     conscientious thinker to avoid. For the human reason is
\n     incapable of  always playing  the detective upon itself
\n     in this  respect; it  is its  very nature to seize upon
\n     some partial  conclusion, idea,  principle, become\t its
\n     partisan and  make it  the key to all truth, and it has
\n     an infinite  faculty of  doubting upon  itself so as to
\n     avoid detecting  in its  operations this  necessary and
\n     cherished weakness.”(1)
\n     Judges must  warn themselves  against this\t possibility
\nbecause\t the   nation’s\t confidence   in  the\texercise  of
\ndiscretionary power  affecting life  and  liberty  has\tbeen
\nrudely shaken  especially when\tthe Court trustingly left it
\nto the\tExecutive. A  prison is a sound-proof planet, walled
\nfrom view  and visits regulated, and so, rights of prisoners
\nare hardly  visible, checking  is  more\t difficult  and\t the
\nofficial position of the repository of power inspires little
\ncredibility where  the victims\tcan be political protesters,
\nunpopular figures,  minority champions\tor artless  folk who
\nmight fail to propitiate arrogant power of minor minions.<\/p><\/blockquote>\n
     The learned Additional’ Solicitor General commended for
\nour  consideration   the  judicial   strategy  of  softening
\ndraconian disablement  implied in  S. 56  by  a\t process  of
\ninterpretation\tas   against  invalidation.  We\t agree,\t and
\nproceed to  consider whether  the language  of S.  56  lends
\nitself to such leniency. The impugned provision runs thus:\n<\/p>\n
\t  “Whenever   the    Superintendent   considers\t  it
\n     necessary (with  reference either\tto the\tstate of the
\n     prison or\tthe character of the prisoners) for the safe
\n     custody of\t any prisoners\tthat they should be confined
\n     in\t irons,\t  he  may,   subject  to   such\t rules\t and
\n     instructions as  may be  laid down\t by  the  Inspector-
\n     General with  the sanction\t of the Local Government, so
\n     confine them “<\/p><\/blockquote>\n
     The relevant  ‘rules’ may\talso be referred to. A whole
\nfasciculus of rules under the heading ‘confinement in irons’
\ndeals with  this subject.  The more  relevant ones are Rules
\n423, 428, 432, 433 and 435. These
\n     (1) Sri Aurobindo-Essays on the Gita, p. 37.\n<\/p>\n
474<\/span><\/p>\n
rules’ merely  provide for  stacking irons,  describe  their
\ndetails, specify  the category\tand conditions\tof prisoners
\nwho may\t be required  to wear  irons, direct  their  medical
\nexamination, the removal of fetters and the like.\n<\/p>\n
     Besides, there  are provisions which specify situations
\nwhere ordinarily  prisoners are\t exempt\t from  fetters,\t and
\nfetters shall not, ordinarily and without special reasons to
\nbe recorded by the Superintendent in his Journal, be imposed
\non any\t‘unconvicted criminal prisoner’ (See R. 430). Sobraj
\nis yet\tunconvicted. The  other categories  so exempted need
\nnot detain  us. To  avoid conclusion  it is not apt to state
\nthat these  ‘rules and\tinstructions’ have no legal force as
\nthe source  of power,  S. 56, desiderates for their validity
\nthe sanction  of the  ‘Local  Government’.  After  strenuous
\nefforts to  trace such sanction, the Addl. Solicitor General
\nfailed to  make good  this condition precedent. The sanction
\nbeing absent,  the  instructions  are  no  more\t than  self-
\npresented procedure and cannot qualify for recognition under
\nArt. 21.  In this  sense, S.  56 stands\t unclad and  must be
\nconstitutionally tested on its sweeping phraseology of naked
\nbrevity.\n<\/p>\n
     Even otherwise,  the rules\t come into  play only to the
\nextent the  Act permits,  since the stream cannot rise above
\nthe  source.   Therefore,  S.  56  demands  close  scrutiny.
\nConfinement in\tirons is  permitted for\t the safe custody of
\nprisoners. Therefore,  the sine\t qua non  is the presence of
\nsafety to  the point  of necessity  compelling fetters. Safe
\ncustody is  imperilled only where escape probability exists.
\nSuch escape  becomes a\tclear and  present danger only where
\nthe prisoner has by his precedents shown an imminent attempt
\nto escape.  Mere violence  by a prisoner of bad behaviour or
\nother misconduct  which has no reference to safe custody has
\nno relevance  to S.  56. Supposing  a prisoner\twere  short-
\ntempered, vulgar or even homosexual, his safe custody within
\nthe prison is not in jeopardy. His misbehaviour unrelated to
\nsecurity is  the only  issue then  involved and correctional
\ntherapy is  the prescription. S. 56 is not attracted so long
\nas the safe custody of that prisoner is not shaky. The focus
\nis on his escape and, maybe, on overt and covert attempts in
\nthat behalf. Other disorder or vice may deserve disciplinary
\nattention but  S.56 is\tnot a nostrum for all administrative
\naches within jails.\n<\/p>\n
     The  second   requirement\tof   S.\t 56   is  that\t the
\nSuperintendent\tmust  consider\tit  necessary  to  keep\t the
\nprisoner  in  irons  for  the  sake  of\t safe  custody.\t The
\ncharacter of  the prisoner, not generally, but with specific
\nreference  to\tsafe  custody,\t must  be   studied  by\t the
\nSuperintendent and  if he reaches the conclusion responsibly
\nthat there is necessity to confine
\n475<\/span>
\nthe man\t in irons  to prevent  escape from  custody, he\t may
\nexercise his  powers under  S. 56.  To consider\t a  step  as
\nnecessary the  authority  must\texercise  intelligent  care,
\nbestow serious consideration and conclude that the action is
\nnot  only   desirable  or   advisable  but   necessary\t and
\nunavoidable. A\tlesser standard\t shows scant  regard for the
\nstatutory imperative.\n<\/p>\n
     S.56  empowers  the  Deputy  Superintendent  to  put  a
\nprisoner in  irons only\t in situations\tof urgent  necessity
\nfollowed by  an immediate  report to the Superintendent. The
\npoint that  emerges is\tthat  only  a  finding\tof  absolute
\nnecessity can  justify the  exercise of\t the ‘iron’ power by
\nthe  Deputy   Superintendent  and  the\tSuperintendent\tmust
\nrespect the  spirit of\tS. 58  when he\tuses the power. This
\nmust be\t an objective finding, and must, therefore, be based
\non tangible  matters which  will be  sufficient to satisfy a
\nman  acting   with  a  sense  of  humane  justice,  properly
\ninstructed in the law and assessing the prognosis carefully.
\nRandom decisions,  freak impressions,  mounting\t suspicions,
\nsubjective  satisfaction  and  well-grounded  allergy  to  a
\nparticular prisoner  may be  insufficient. We  must remember
\nthat even  though s.  56 is  a pre-Constitution\t measure its
\napplication must  be governed  by the imperative of Articles
\n14, 19\tand  21.  Life\tand  liberty  age  precious  values.
\nArbitrary action  which tortuously tears into the flesh of a
\nliving man  is too serious to be reconciled with Articles 14
\nor 19  or even\tby way\tof  abundant  caution.\tWhatever  is
\narbitrary   in\t  executive   action\tis   pregnant\twith
\ndiscrimination and  violates  Art.  14.\t Likewise,  whatever
\ndecision  is  the  product  of\tinsufficient  reflection  or
\ninadequate material  or unable to lead to the inherence of a
\nclear and  present danger,  is unreasonable  under Art.\t 19,
\nespecially when\t human freedom\tof helpless  inmates  behind
\nprison walls  is the  crucial issue.  Article 21, as we have
\nexplained while\t dealing with  Batra  case,  must  obey\t the
\nprescriptions of  natural justice (see Maneka Gandhi) as to,
\nthe quantum  and quality  of  natural  justice\teven  in  an
\nemergency). Reasonableness  in this  area also involves some
\nreview of  the action  of an  executive officer\t so that the
\nprisoner who suffers may be satisfied that a higher official
\nhas with  detachment, satisfied\t himself about the necessity
\nto better  him. Such  administrative fairness  is  far\tmore
\nproductive of  order in\t prison than  the counter productive
\nalternative of\trequiring every\t security  suspect  to\twear
\niron. Prison  disorder is  the dividend\t from such  reckless
\n‘discipline’  and   violent  administrative  culture,  which
\nmyopic superintendents miss.\n<\/p>\n
     This constitutional  perspective  receives\t ideological
\nreinforcement from  the observations  of Mr. Justice Douglas
\nin Morrissey v. Brewer. (1)
\n     (1) 33 I,. Ed. 484, 505.\n<\/p>\n
     14-526SCI1\/78
\n476<\/span>
\n\t  “The rule  of law is important in the stability of
\n     society. Arbitrary actions in the revocation of paroles
\n     can only  impede and  impair the rehabilitative aspects
\n     of modern penology. “Notice and opportunity for hearing
\n     appropriate  to  the  nature  of  the  case”,  are\t the
\n     rudiments of  due process\twhich restore faith that our
\n     society is run for the many, not the few, and that fair
\n     dealing rather  than caprice will govern the affairs of
\n     men.”\n<\/p>\n
     To judge  whether Sobraj’s\t fetters were legal, we must
\ngo further  into the period for which this cruel process was
\nto persist.  Even prisoners  who are  ‘lifers’ shall  not be
\nretained in  iron for more than three months except with the
\nspecial sanction  of the  Inspector General (See S. 57). The
\nrules also take a horrifying view of the trauma of fetters.\n<\/p>\n
     The power\tto confine in iron can be constitutionalised
\nonly if\t it is\themmed in  with severe\trestrictions.  Woven
\naround the  discretionary power there must be protective web
\nthat balances  security of  the prison\tand the integrity of
\nthe person.  It is true that a discretion has been vested by
\nS. 56  in the  Superintendent to  require a prisoner to wear
\nfetters. It  is a  narrow power in a situation of necessity.
\nIt  has\t  no  be   exercised  with  extreme  restraint.\t The
\ndiscretion has\tto be  based on\t an objective  assessment of
\nfacts and  the facts themselves must have close relevance to
\nsafe custody.  It is  good to highlight the total assault on
\nthe human  flesh, free\tmovement and  sense of dignity this,
\n‘iron’ command involves. To sustain its validity in the face
\nof  Art.   19  emergencies   uncontrollable  by\t alternative
\nprocedures are\tthe only  situations in\t which this  drastic
\ndisablement   can   be\t prescribed.   Secondly\t  processual
\nreasonableness cannot  be  burked  by  invoking\t panic-laden
\npleas,\trejected in Charles Wolff by the U.S. Supreme Court.\n<\/p>\n
     Such a  power,  except  in\t cases\tof  extreme  urgency
\ndifficult to  imagine in  a grim  prison setting where armed
\nguards are  obviously available\t at instant notice and watch
\ntowers vigilantly  observe (save  in case  of sudden riot or
\nmutiny extraordinarly),\t can be\t exercised only after giving
\nnotice and  hearing and\t in an\tunbiased manner. May be that
\nthe hearing is summary, may be that the communication of the
\ngrounds is  brief, maybe  that\toral  examination  does\t not
\nalways\ttake   place;  even   so  natural  justice,  in\t its
\nessentials, must be adhered to for reasons we have explained
\nin Gill and Maneka Gandhi.\n<\/p>\n
     I regard as essential that reasons must be assigned for
\nsuch harsh  action as  is contemplated and such reasons must
\nbe recorded in the history ticket of the prisoner as well as
\nin the journal. Since the reasons are intended to enable the
\nPetitioner to challenge, if aggriev-\n<\/p>\n
477<\/span><\/p>\n
ed, the\t record must be in the language of the petitioner or
\nof the A region, and not in English as is being done now.\n<\/p>\n
     There must\t be special  reasons of\t an extraordinary or
\nurgent character when fetters are fastened on an unconvicted
\nprisoner. Those substantial reasons must be recorded and its
\ncopy furnished\tto the prisoner. Rule 430 commands that this
\nbe done.  Even otherwise,  the procedural  panacea of giving
\nspecific  reasons  (not\t routine  chants)  has\ta  wholesome
\nrestraining effect. And the constitutional survival of S. 56
\ndepends on the formula of reasonableness.\n<\/p>\n
     The spirit and substance of rule 432 make it clear that
\nthe record  of the reasons is imperative and has a function.
\nRule 433,  whatever the\t Superintendent’s affidavit may say,
\nclearly shows  that the\t wearing of  fetters must be for the
\nbriefest periods  and deserves frequent scrutiny. Indeed, in
\nour  view,  except  in\tremotely  extraordinary\t situations,
\nrational justification\tfor bar\t fetters of  an\t unconvicted
\nprisoner cannot\t be found  except on the confession that the
\nPrison Superintendent  and  his\t staff\tare  incompetent  to
\nmanage and indifferent to reasonableness. We cannot be swept
\noff our\t constitutional feet  by scary\targuments of  deadly
\nprisoners and  rioting gangs, especially when we find States
\nin India  which have abandoned the disciplinary barbarity of
\nbar fetters (Tamil Nadu, Kerala et. al).\n<\/p>\n
     The import\t of rule  435 is  that even  in cases  where
\nsecurity compels  imposition of\t fetters this should be only
\nfor the\t shortest possible  time. The  fact that,  even as a
\npunishment, irons  must be  restricted in  its use  (see  S.
\n46(7) ) argues for prophylactic irons being for the shortest
\nspell. At  night, when the prisoner is in a cell there is no
\nparticular reason  to apprehend or possibility of escape. So
\nnocturnal hand-cuffs and chains are obnoxious and vindictive
\nand anathema in law.\n<\/p>\n
     The infraction of the prisoner’s freedom by bar fetters
\nis too\tserious to  be viewed lightly and the basic features
\nof ‘reasonableness’  must be  built into  the administrative
\nprocess\t for   constitutional\tsurvival.   Objectivity\t  is
\nessential  when\t  the  shackling  is  prima  facie  shoking.
\nTherefore, an  outside agency,\tin the\tsense of  an officer
\nhigher than  the Superintendent\t or external  to the  prison
\ndepartment, must  be given the power to review the order for
\n‘irons’. Rule 423 speaks of the Inspector General of Prisons
\nhaving to  be informed\tof the\tcircumstances  necessitating
\nfetters and  belchains. Rule 426 has a similar import. It is
\nright to  generalise that  the substance  of the ‘rules’ and
\nthe insistence\tof the\tSection contain the command that the
\nInspector General of Prisons shall post haste, say within 48
\nhours at  least. receive  a report of such an infliction and
\nconsider whether it is just and neces
\n478<\/span>
\nsary. He  should also  be ready to receive complaints by way
\nof appeals about ‘irons’ from prisoner concerned. A right of
\nappeal or  revision from the action of the Superintendent to
\nthe Inspector  General of Prisons and quick action by way of
\nreview are implicit in the provision. If there is delay, the
\nnegation of good faith, in the sense of absence of due care,
\nis inevitable and the validity of the order is in
\n peril.\n<\/p>\n
     Another remedy  also may be visualised as feasible. The
\nvisitors of  jails include  senior executive officers of the
\nDivision, Sessions Judges and District Magistrates (see rule\n<\/p>\n
47). This  is ordinarily an All India pattern. The duties of
\nofficial visitors  include satisfying  themseleves that\t the
\nprovisions of  the Prisons  Act, rules,\t regulations, orders
\nand directions\tare duly  observed. Undoubtedly,  the proper
\nadherence to  S. 56  and the  related rules falls within the
\npurview of  ‘rule’. 49 . ‘Rule’ S 3 states that all visitors
\nshall have  the opportunity  of observing the state of jail,
\nits management\tand every  prisoner con\t fined therein.\t The
\nvisitors, official  and non-official, have power to call for
\nand inspect  jail records.  ‘Rule’ 53  and 53B\tare pregnant
\nprovisions. We\tread humane  amplitude into  this  group  of
\n‘rules’\t  so   as   to\t constitutionalise   the   statutory
\nprescriptions. They  spell out\ta duty\ton the\tpart of\t the
\nvisitors and  the Inspector  General  of  Prisons.  to\thear
\nappeals or  complaints from  the prisoners  regarding  irons
\nforced on  them. The reasonableness of the restriction being
\nthe constitutional  badge, the only way we can sustain S. 56
\nof the\tAct is\tto imply  in the  broad group  of provisions
\nexternal examinership, immediate review and cutting short of
\nthe iron regime to the briefest spell.\n<\/p>\n
     A few  submissions linking\t up ‘dangerousness’ with bar
\nfetters urged  li’ by  the Additional  Solicitor General may
\nnow be considered.\n<\/p>\n
     The learned  Additional Solicitor\tGeneral\t urged\tthat
\nthere was  a built-in  guideline  for  the  superintendent’s
\ndiscretion. Considerations of safety, expressed in paragraph
\n435  and  S.  56.  remove  the\tvice  of  arbitrariness\t and
\nunreasonableness. Reference  to paragraph  433 was  made  to
\nmake out that only dangerous prisoners were to be chained in
\nthis manner.  We cannot\t lose sight  of the fact that a non-
\nconvict prisoner  is to\t be regarded  differently and it may
\neven be\t a misnomer  to treat such a remandee as a prisoner.
\nWe see\ta  distinction\tbetween\t unconvicted  prisoners\t and
\nconvicted  prisoners  being  dealt  with  differently.\t(See
\nparagraph 392  of the  Manual). Assuming  the indiscriminate
\nprovision in para 399 embracing dangerous prisoners ‘whether
\nthey are  awaiting trial  or  have  been  convicted’  to  be
\napplicable,  we\t  should  deal\t with  the   two  categories
\ndifferently. Para 399(3) reads:\n<\/p>\n
479<\/span><\/p>\n
\t  “Special precautions\tshould be taken for the safe
\n     custody  of   dangerous  prisoners\t  whether  they\t are
\n     awaiting  trial   or  have\t been  convicted.  On  being
\n     admitted to jail they should be (a) placed in charge of
\n     trustworthy warders,  (b) confined\t in the\t most secure
\n     building available,  (c) as far as practicable confined
\n     in\t different   barracks  or   cells  each\t night,\t (d)
\n     thoroughly\t searched   at\t least\t twice\t daily\t and
\n     occasionally   at\t  uncertain   hours    (the   Deputy
\n     Superintendent must search them at least once daily and
\n     he must satisfy himself that they are properly searched
\n     by\t a  trustworthy\t subordinate  at  other\t time),\t (e)
\n     fettered if  necessary (the  special reasons for having
\n     recourse to  fetters should  be fully  recorded in\t the
\n     Superintendent’s journal  and noted  in the  prisoner’s
\n     history ticket).  They should  not be  employed on\t any
\n     industry affording facilities for escape and should not
\n     be entrusted  with\t implements  that  can\tbe  used  as
\n     weapons.  Warders\t on  taking   over  charge  of\tsuch
\n     prisoners must  satisfy themselves\t that their  fetters
\n     are intact\t and the  iron bars  or the  gratings of the
\n     barracks in  which they are confined are secure and all
\n     locks, bolts,  etc. are  in proper\t order. They  should
\n     during  their   turns  of\t duty\tfrequently   satisfy
\n     themselves that all such prisoners are in their places,
\n     should acquaint themselves with their appearance.”<\/p><\/blockquote>\n
     All these factors focus our attention on the concept of
\n‘dangerousness’\t as   controlling  discretionary  power\t and
\nvalidate the Section.\n<\/p>\n
     The learned  Additional Solicitor\tGeneral argued\tthat
\nthe expression\t‘dangerous’ was neither vague nor irrational
\nbut vivid  and precise,\t and regulated the discretion of the
\nofficer sufficiently to eliminate the vice of arbitrariness.
\nHe cited  authorities to  which we  will presently  come but
\nbefore examining  them as  validation of  incapacitation  of
\nrisky prisoners\t we may as well refer to some aspects of the
\nproblem presented  by (1) what kind of danger should lead to
\nincapacitation ?  (2) what authority is to make the decision
\non whether or not that danger is present ? (3) on what basis
\nis that authority to decide who among offenders is dangerous
\nand for how long ?\n<\/p>\n
     Predictions of dangerousness are hazardous. In 1966 the
\nSupreme Court  released\t 967  offenders\t held  in  New\tYork
\npsychiatric institutions  beyond the term of their sentences
\nbecause they  were  considered\tdangerous.  (They  had\tbeen
\nconfined  without   proper  procedures).    Researchers\t who
\nfollowed the  subsequent careers  of these  persons for four
\nyears  found   that  only   2  percent\t were  returned\t  to
\ninstitutions for
\n480<\/span>
\nthe criminally insane; more than half were not readmitted to
\nany  institution.  However,  the  criteria  by\twhich  these
\npersons had  been. declared dangerous in the first place are
\nquestionable, and  they had been held an average of thirteen
\nyears beyond their sentences.\n<\/p>\n
     The prognosis  depends  on\t the  peculiarities  of\t the
\nindividual and\ton interpretation  by  the  individuals\t who
\nstudy his case-i.e on the idiosyncrasies of their (intuitive
\n?) judgment criteria.\n<\/p>\n
     All institutions  that hold people against their wishes
\nneed outside  supervision, for, by definition, they lack the
\ninternal checks\t and balances  that  make  such\t supervision
\nunnecessary elsewhere.\tOne can\t check out  of\ta  hotel  if
\nabused, but not out of a prison. Prison staffs? which unlike
\nhotel staffs,  can also\t totally circumscribe the activities
\nof  inmates-have  extensive  coercive  power  that  must  be
\nchecked by  an outside\tauthority if it is not to be abused.
\nWhile sharing the, purposes of the penal system, the outside
\nauthority should be altogether independent of the management
\nof  the\t institutions  it  is  to  super  vise\tand  of\t its
\npersonnel. (The\t general supervisory  power of the judiciary
\nis too\tcumbersome and\thas not proven sufficient anywhere).
\nSuch outside  authorities exist\t abroad: In  Great British a
\n‘Board of  visitors’ deals  with violations  of prison rules
\nand deals with complaints by prisoners. In France a Judge de
\nl’ application des peines is presumed to do so, and in Itlay
\na guidice di sorveglienza.\n<\/p>\n
     Kent   S.\t  Miller   writes    on\t  the\tsubject\t  of\ndangerousness('):\n<\/pre>\n
\t  ” ….a  definitional problem\t needs to  be  dealt
\n     with. State  statutes have\t been notoriously  vague  in
\n     their  references\tto  dangerousness,  in\tlarge  parts
\n     leaving the determination of dangerousness to the whims
\n     of the  Court and\tof others  involved in\tapplying the
\n     concept.”\n<\/p>\n
Professionals concerned with prediction of violent behaviour
\nhad differed in their judgments. Writes Miller:\n<\/p>\n
\t  “Considerable attention has been given to the role
\n     of\t psychological\t tests\t in   predicting   dangerous
\n     behaviour, and  there is  a wide range of opinion as to
\n     their value.”\n<\/p><\/blockquote>\n
\t  “Thus far  no structured  or projective test scale
\n     has been  derived which,  when used alone, will predict
\n     violence in  the  individual  case\t in  a\tsatisfactory
\n     manner. Indeed,  none has\tbeen  developed\t which\twill
\n     adequately\t post  dict  let  alone\t pre  dict.  violent
\n     behaviour.\t However,   our\t review\t of  the  literature
\n     suggests that it might be possible to demonstrater that
\n     violence could  be predicted  using psychological tests
\n     if\n<\/p><\/blockquote>\n
     1. Kenu S. Miller: Managing Madness, PP. 58, 66. 67. 68
\n481<\/span>
\n     programs of  research were\t undertaken that  were\tmore
\n     sophisticated than the studies done to date.”
\n\t  “Courts and community agencies must muddle through
\n     these difficulties\t and deal  with such problems in the
\n     best way  they can.  The fact  that we  have difficulty
\n     defining the  predicting dangerous\t behaviour does\t not
\n     mean that\tmembers of  the community can disregard such
\n     patterns of  behaviour. And the fact that psychiatrists
\n     do not  agree on the nature and scope of mental illness
\n     does not  imply that  the law  can be oblivious to such
\n     matters. ..\n<\/p><\/blockquote>\n
\t       ..But  we   are\ton   dangerous\tground\twhen
\n     deprivation of liberty occurs under such conditions.\n<\/p><\/blockquote>\n
\t       The   practice\t has   been    to   markedly
\n     overpredict. In  addition, the courts and mental health
\n     professionals  involved   have  systematically  ignored
\n     statutory requirements  elating  to  dangerousness\t and
\n     mental illness…\n<\/p><\/blockquote>\n
\t       In  balancing  the  interest  of\t the  state,
\n     against  the   loss  of   liberty\tand  rights  of\t the
\n     idividual, a  prediction of  dangerous  behaviour\tmust
\n     have a  high level\t of probability,  3 condition  which
\n     currently does not exist), and the harm to be presented
\n     should be considerable.)”<\/p><\/blockquote>\n
     If our  law were  to reflect a higher respect for life,
\nrestraint of  the person  is justified only if the potential
\nharm is\t considerable. Miller’s\t conclusions are  meaningful
\nand relevant:\n<\/p>\n
\t  “If confinement  takes place,\t there should  be  a
\n     short-term mandatory review.” “..\n<\/p><\/blockquote>\n
\t       the basis  for police power commitment should
\n     be physical  violence or  potential  physical  violence
\n     which is  imminent, constituting  a ‘clear and present’
\n     danger  and   based  on  testimony\t related  to  actual
\n     conduct. Any  such\t commitment  should  be\t subject  to
\n     mandatory review within two weeks.” “……
\n\t       Restraint should\t be time-  limited,  with  a
\n     maximum of five to seven days.”<\/p><\/blockquote>\n
     The  inference   is  inevitable   that  management\t  of
\ndangerousness in  the prison  setting is  often overkill and
\nunderscientific. The  irrationality of\tbar fetters based on
\nsubjective judgment  by men without psychiatric training and
\nhumane\tfeeling\t  makes\t every\t prisoner  ‘dangerous’.\t Dr.
\nBhattacharya writes(l):\n<\/p>\n
     (1) Dr. B. K. Bhattacharya.: Prisons p. 116.\n<\/p><\/blockquote>\n
482<\/span><\/p>\n
\t  “In the  Delhi jail  particularly in 1949 one came
\n     across an\tastonishing sight  of  numerous\t under-trial
\n     prisoners in  fetters, merely  on the  ground that they
\n     had more  than one\t case pending against them. This was
\n     noticed, though in a far less degree, in Patiala and in
\n     Jaipur. Numerous  transportation prisoners were secured
\n     behind bars in cells, yet they were put in bar-fetters,
\n     not to  mention the escapes and condemned prisoners. In
\n     Delhi jail\t one gained  an impression  that bar-fetters
\n     were the rule of the day.”\n<\/p><\/blockquote>\n
The key jurisdictional preconditions are:\n<\/p>\n
     (i) absolute necessity for fetters;\n<\/p><\/blockquote>\n
     (ii) special  reasons  why\t no  other  alternative\t but
\n\t  fetters will alone secure custodial assurance:\n<\/p><\/blockquote>\n
     (iii)record  of   those  reasons  contemporaneously  in
\n\t  extenso;\n<\/p><\/blockquote>\n
     (iv) such record  should not  merely  be  full  but  be
\n\t  documented   both    in   the\t  journal   of\t the
\n\t  Superintendent  and  the  history  ticket  of\t the
\n\t  prisoner. This latter should be in the language of
\n\t  the prisoner so that he may have communication and
\n\t  recourse to redress.\n<\/p><\/blockquote>\n
     (v)  the basic  condition of dangerousness must be well
\n\t  grounded and recorded;\n<\/p><\/blockquote>\n
     (vi) all these are conditions precedent to ‘irons’ save
\n\t  in a great emergency,\n<\/p><\/blockquote>\n
     (vii)before preventive  or\t punitive  irons  (both\t are
\n\t  inflictions of bodily pain) natural justice in its
\n\t  minimal form\tshall be  complied with\t (both\taudi
\n\t  alteram and the nemo judex rules).\n<\/p><\/blockquote>\n
     (viii)the fetters\tshall be  removed  at  the  earliest
\n\t  opportunity .\t That is  to say,  even if some risk
\n\t  has  to  be  taken  it  shall\t be  removed  unless
\n\t  compulsive   considerations\t continue   it\t for
\n\t  necessities of safety;\n<\/p><\/blockquote>\n
     (ix) there shall be a daily review of the absolute need
\n\t  for the fetters, none being easily conceivable for
\n\t  nocturnal manacles;\n<\/p><\/blockquote>\n
     (x)  if it\t is found the fetters must continue beyond a
\n\t  day, it  shall be  held illegal  unless an outside
\n\t  agency like  the District  Magistrate or  Sessions
\n\t  Judge,   on\t materials   placed,   directs\t its
\n\t  continuance.<\/p><\/blockquote>\n
483<\/span><\/p>\n
     Although  numerically  large,  these  requirements\t are
\nreasonably practical  and reconcile  security with humanity.
\nArguments to the contrary are based on alarmist a priori and
\nmay render S. 56 ultra vires. Having regard to the penumbral
\nzone, fraught  with  potential\tfor  tension,  tantrums\t and
\nillicit violence  and malpractice, it is healthy to organize
\na prison  ombudsman for\t each State. Sex is an irrepressible
\nurge  which   is  forced  down\tby  long  prison  terms\t and
\nhomosexuality  is   of\thidden\t prevalence  in\t these\tdark
\ncampuses.  Liberal   paroles,  open   jail’s,  frequency  of
\nfamilial meetings,  location of\t convicts in  jails  nearest
\ntheir homes  tend to  release stress,  relieve distress\t and
\ninsure security better than flagellation and fetters.\n<\/p>\n
     The upshot\t of the\t discussion is\tthat the shackles on
\nSobraj shall  be shaken\t off right away and shall not be re-
\nworn without  strict adherence to the injunctions spelt out.
\nActive\tprison\t justice  bids\tfarewell  to  the  bloodshot
\nheritage  of   fierce  torture\tof  flesh  and\tspirit,\t and
\nliabilitative processes\t reincarnate as\t a healing  hope for
\nthe  tense,  warped  and  morbid  minds\t behind\t bars.\tThis
\ncorrectional orientation  is a constitutional implication of
\nsocial justice\twhose index  finger points to Art. 14 (anti-
\narbitrariness), Art.  l9 (anti-reasonableness)\tand  Art  21
\n(sensitized processual humanism).\n<\/p>\n
     Prison  reform  is\t burgeoning  in\t the  administrative
\nthanking and,  hopefully one may leave it to legislative and
\nexecutive effort  to concretise, with feeling for ‘insiders’
\nand  concern   for  societal   protection,  with  accent  on
\nperimeter security and correctional strategy, the project of
\nprison reform.\n<\/p>\n
     Presumptive   innocence   blushes\t when\tad   libitum
\ndiscretion is vested in the jailor to put preventive fetters
\nunfettered by  the annoying  rules of  natural justice.\t The
\nprisons become\thouses of  horror if hundreds of undertrials
\nand even minors have to suffer, on grounds of dangerousness,
\nthis  disciplinary   distress  in   one\t jail.\tThat  Prison
\nSuperintendent\t surely\t  needs\t  his\tdiscretion   to\t  be
\ndisciplined,\tbeing\t  otherwise\tdangerous.     Since
\nconstitutionality  focusses  on\t rationality  and  realistic
\nreasonableness these forensic dissections go to the heart of
\nthe issue.\n<\/p>\n
     I hold  that bar fetters are a barbarity generally and,
\nlike whipping,\t.must  vanish.\tCivilised  consciousness  is
\nhostile to  torture within  the walled\tcampus. We hold that
\nsolitary confinement,  cellular segregation  and  marginally
\nmodified editions  of  the  same  process  are\tinhuman\t and
\nirrational. More dangerous are these expedients when imposed
\nby the\tuntuned and  untrained power  of a jail superior who
\nhas, as\t part of  his professional  equipment, no  course in
\nhuman psychology,  stressology or  physiology,\twho  has  to
\ndepend on no medical
\n484<\/span>
\nor psychiatric\texamination, prior to infliction of irons or
\nsolitary, who  has no  obligation to  hear the victim before
\nharming him,  whose ‘reasons’ are in English on the histcry-
\ntickets and therefore unknowable and in the Journal to which
\nthe prisoner  has no  access.  The  revisory  power  of\t the
\nInspector General  of Prison,  is illusory when the prisoner
\ndoes not  know\tof  his\t right\tto  seek  revision  and\t the
\nInspector General  has no  duty to  visit  the\tsolitary  or
\n‘fettered’ creatures  or  to  examine  every  case  of\tsuch
\ninfliction. Jail  visitors have\t no  powers  to\t cancel\t the
\nsuperintendent’s orders\t nor obligation to hold enquiry save
\nto pity\t and to\t make remarks. Periodical parades prisoners,
\nwhen the  visitors or dignitaries call for a turn-out, prove
\na circus in a zoo from a practical standpoint or\/and journal
\nentries and  history-tickets a voodoo according to rule, the
\nkey  point   to\t be  noted  being  that\t after\tthis  public
\nexhibition within  the prison. the complaining prisoners are
\nmarked men  at the  iron mercy of the hierarchy. there being
\nno active  legal aid  project busy  within the\tprison. This
\nferocious rule\tof law, rule and nude, cannot be sustain  r)
\ned as  anything but arbitrary, unreasonable and procedurally
\nheartless. The\tperil to  its life from the lethal stroke of
\nArticles 14,  19 and  21 read  with 13\tneeds no far-fetched
\nargument. The abstruse search for curative guideline in such
\nwords  as   ‘dangerous’\t and   ‘necessary`  forgetting\t the
\ntotalitarian backdrop  of stone\t walls\tand  iron  bars,  is
\nbidding farewell  to raw reality and embracing verbal marga.
\nThe law\t is not abracadabra but at once pragmatic and astute
\nand does  not surrender its power before scary exaggerations
\nof security by prison bosses. Alternatives to ‘solitary’ and
\n‘irons’ are  available to  prison technology, give the will,
\nexcept\t   where      indifference,\tincompetence\t and
\nunimaginativeness hold\tprison authorities  prisoner. Social
\njustice cannot\tsleep if  the Constitution  hangs limp where
\nits consumers most . need its humanism.\n<\/p>\n
Access and the Law
\n     An allegedly  unconscionable action of Government which
\ndisables men  in detention  from seeking  judicial  remedies
\nagainst State  torture was  brought to\tour notice.  I would
\nhave  left   the  matter   as  an   unhappy  aberration\t  of
\ngovernmental functioning  but the  fundamental character  of
\nthe imputation leaves us no option but to drive home a basic
\nunderpinning of\t our government of laws. Democratic legality
\nstands stultified  if the  Corpus Juris\t is not\t within\t the
\nactual ken  or reasonable  reach of the citizen; for it is a
\ntravesty of  the rule  of law  if   legislation, primary  or
\nsubordinate, is not available in published form or is beyond
\nthe purchase  of the average affected Indian. To come to the
\npoint. we were told that the Punjab Jail Manual was not made
\n485<\/span>
\navailable to  the prisoners  and, indeed, was priced so high
\nthat few  could buy The copy of the Manual handed over to us
\nis seen to be officially published in 1975 and priced at Rs.
\n260.30, although it contains merely a collection of the bare
\ntext of\t certain statutes,  rules and  instructions  running
\ninto 469  printed pages.  If what  was mentioned  at the Bar
\nwere true  that the Manual as sold before at around Rs. 20\/-
\nbut as\tsuddenly marked\t up more  than ten  times the former
\nprice solely  to deter people from coming to know the prison
\nlaws, then  the rule  of law were surely scandalized. It was
\nsuggested that\tby this means the indigent prisoner could be
\npriced out  of his  precious liberties\tbecause he could not
\nchallenge incarceratory\t injury without precise awareness of
\nthe relevant  provisions of  law beyond his means. Were this
\nmotivation true\t the seriousness of the impropriety deepens.
\nBut we have not been taken into these vicious coils and keep
\nout of\tthat probe.  However, let us be clear. Access to law
\nis fundamental\tto freedom  in a  government of laws. If the
\nrule of law is basic to our constitutional order. there is a
\ndouble imperative  implied by  it-on the citizen to know and
\non the\tState to  make known. Fundamental rights cease to be
\nviable if  laws calculated  to canalise\t or constrict  their
\nsweep arc  withheld from  public access;  and  the  freedoms
\nunder Article  19(1) cannot  be restricted by hidden on ‘low
\nvisibility’ rules  beyond discovery  by\t fail-\tsearch.\t The
\nrestriction must  be reasonable\t under Article 19(2 ) to (6)
\nand how\t can any  normative prescription  be  reasonable  if
\naccess to it is not available at a fair price or by rational
\nsearch ?  1 Likewise,  under Article 21, procedural fairness
\nis the badge of constitutionality it life and liberty are to
\nbe leashed or extinguished; and how can it be fair to bind a
\nman by\tnormative processes collected in books too expensive
\nto  buy\t  ?  The   baffling   proliferation   and   frequent
\nmodification of subordinate legisation and their intricacies
\nand inaccessibility  are  too  disturbing  to  participative
\nlegality  so   vital  to   democracy,\tto   leave   us\t  in
\nconstitutional quiet.  Arcane law is ac had as lawless fiat,
\na caveat the administration will hopefully heed.\n<\/p>\n
     One of  the paramount requirements of valid law is that
\nit must\t be within  the cognizance  of the  community  if  a
\ncompetent  search   for\t it  were  made.  It  is  worthwhile
\nrecalling the  observations of\tBose J.\t made in a different
\ncontext but has a philosophic import:\n<\/p>\n
\t  “Natural justice  requires that  before a  law can
\n     become operative  it must\tbe promulgated or published.<\/p><\/blockquote>\n
     It must  be broadcast  in some recognizable way so that
\n     all men  know what it is;.. The thought that a decision
\n     reached in\t the secret recess of a chamber to which the
\n     public have  no access  and of  which they can normally
\n     know nothing(T. can nevertheless
\n486<\/span>
\n     affect their  lives, liberty  and property\t by the mere
\n     passing  of  a  Resolution\t without  anything  more  is
\n     abhorrent to civilized men. It shocks conscience.”(‘)
\nLegislative tyranny  may be unconstitutional if the State by
\ndevious methods\t like pricing legal publications monopolised
\nby government  too high\t denies the  equal protection of the
\nlaws and  imposes unreasonable\trestrictions on\t exercise of
\nfundamental rights.  The cult  of the occult is not the rule
\nof law\teven as access to law is integral to our system. The
\npregnant import\t of what  I have  said will,  I hope, be not
\nlost on the executive instrumentality of the State.
\nContemporary danger
\n     We must  have a  sense of\tthe prevalence\tof primitive
\ncruelty haunting our prison cells and what is more alarming,
\nof the increasing versatility of prison torture in countries
\ncivilised and  other. Our  country is  no island  and courts
\nmust be\t aware and  beware. While  l am far from inclined to
\nexaggerate possibilities  of  torture  in  the\tsilent\tzone
\ncalled prison,\twe are not disposed to dismiss international
\ntrends collected  in a recent article entitled “Minds behind
\nbars” (2)
\n\t  “The technology  of torture  all over the world is
\n     growing ever more sophisticated-new devices can destroy
\n     a prisoner’s  will in  a matter  of hours-but  leave no
\n     visible marks  or signs  of brutality.  And government-
\n     inflicted terror  has evolved its own dark sub-culture.
\n     All over  the world, torturers seem to feel a desire to
\n     appear respectable\t to  their  victims….There  is  an
\n     endlessly inventive  list of  new methods of inflicting
\n     pain and  suffering on fellow human beings that quickly
\n     cross continents  and ideological barriers through some
\n     kind of  international secret-police  network. The ‘wet
\n     submarine’ means  near suffocations  of   a prisoner by
\n     immersing him  in water,  or, frequently, in urine; the
\n     ‘dry submarine’  is  the  same  thing,  except  that  a
\n     plastic bag  is tied  over the victim’s head to deprive
\n     him  of   oxygen.\tAnother\t  common   technique,\t‘the
\n     telephone’, consists  of delivering sharp blows in both
\n     ears simultaneously,  which often causes excruciatingly
\n     painful rupture  of the  ear drums. ‘The helmet’ is put
\n     over the  head of\ta torture  victim to magnify his own
\n     screams. In  ‘the hook’  the victim  is hoisted off the
\n     ground by\this hands, which are tied behind his back in
\n     such a  way that  the stretching  of the  nerves  often
\n     causes\n<\/p>\n
     (l) A.l.R. 1951 SC-467.\n<\/p>\n
     (2) Listner, Dec. 1977 issue.\n<\/p>\n
487<\/span><\/p>\n
     paralysis of  the arms.  ‘People on  the hook’ says one
\n     Uruguyan torture  victim, ‘cannot take a deep breath or
\n     hardly any\t breath. They  just moan;  it’s a  dreadful,
\n     almost inhuman noise.’
\n\t  And torturers\t all over the world use the language
\n     of grisly\tdisinformation to  describe their  work.  In
\n     Uganda Amin’s  secret police  are known  as the  ‘State
\n     Research Bureau’,\tand B.\tthe main  torture houses are
\n     called ‘Public Safety Units’. In Brazil, torturers call
\n     their  sessions  ‘spiritual  sessions’  and  in  Chile,
\n     torturers refer  to the  Villa Grimaldi, their place of
\n     work, as  the Palacio de la Risa-the Place of Laughter.
\n     In Iran,  Otaq-e-Tamehiyat, ‘the  room where  you\tmake
\n     people walk’,  meant the  blood stained  chamber  where
\n     prisoner’s were  forced to\t walk after  torture to help
\n     their blood to circulate.\n<\/p>\n
\t  What is  encouraging in  all this  dark picture is
\n     that we  feel that\t public opinion in several countries
\n     is much more aware of our general line than before. And
\n     that is positive. I think, in the long run, governments
\n     can’t ignore  that. We  are also encouraged by the fact
\n     that,  today,   human  rights   are  discussed  between
\n     governments-they  are   now  on   the  inter   national
\n     political agenda.\tBut, in the end, what matters is the
\n     pain and  suffering the  individual endures  in  police
\n     station or cell.”\n<\/p>\n
     I imply  nothing from  the quote  but  it\tdeepens\t our
\nawareness in approaching our task.\n<\/p>\n
     Now that  the dilatory discussion overlapping at times,
\nhas come to an end, I may concretise the conclusions in both
\nthe cases, lest diffusion should leave the decision vague or
\nwith ragged edges. They flow from the elevating observations
\nof Chandrachud,\t J. (as\t he then  was) in  Bhuvan  Mohan,(1)
\namplified by humanity:\n<\/p>\n
\t  “We cannot  do better\t than say that the directive
\n     principle contained  in Article  42 of the Constitution
\n     that ‘The\tState shall  G: make  provision for securing
\n     just and humane conditions of work’ may benevolently be
\n     extended to  living  conditions  in  jails.  There\t are
\n     subtle  forms  of\tpunishment  to\twhich  convicts\t and
\n     undertrial prisoners  are sometimes  subjected  but  it
\n     must be  realised that  these  barbarous  relics  of  a
\n     bygone era\t offend against the letter and spirit of our
\n     Constitution.” .\n<\/p><\/blockquote>\n
(l)Bhuvan Mohan\t Patnaik v.  Sttae of A.B [1975] (3) SCC185.
\n189,
\n488<\/span>
\nThe correction\tand direction  indicated by the Constitution
\nhave been broadly spelt out by me so that progressive prison
\nreforms may move towards ‘fresh woods and pastures new’. i.\n<\/p>\n
     1.\t  I uphold the vires of Section 30 and Section 56 of
\nthe Prisons  Act, as  humanistically read by interpretation.
\nThese and other pro visions, being somewhat out of tune with
\ncurrent penological  values  and  mindless  to\thuman-rights
\nmoorings, will,\t I hope, be revised by fresh legislation. It
\nis a  pity that\t Prison Manuals\t are mostly callous colonial
\ncompilations and  even their  copies are  beyond  prisoners’
\nken. Punishments,  in civilised\t societies, must not degrade
\nhuman dignity  or  wound  flesh\t and  spirit.  The  cardinal
\nsentencing goal\t is correctional; changing the consciousness
\nof the\tcriminal to  ensure  social  defence.  Where  prison
\ntreatment abandons  the reformatory  purpose  and  practises
\ndehumanizing techniques\t it is\twasteful, counter-productive
\nand  irrational,   hovering  on\t  the\thostile\t  brink\t  of
\nunreasonableness (Art.\tl9).’ Nor  can torture\ttactics jump
\nthe  constitutional   gauntlet\tby  wearing  a\t‘preventive’
\npurpose.  Naturally,  inhumanity,  masked  as  security,  is
\noutlawed beyond\t backdoor entry,  because what\tis banned is
\nbrutality. be its necessity punitive or prophylactic.\n<\/p>\n
     2. I  hold that solitary confinement, even if mollified
\nand modified  marginally, is  not sanctioned  by Sec. 30 for
\nprisoners ‘under  sentence of  death’. But it is legal under
\nthat Section  to separate  such sentencees  from the rest of
\nthe  prison   community\t during\t hours\twhen  prisoners\t are
\ngenerally locked  in. I\t also uphold  the special watch, day
\nand night,  of such  sentencees\t by  guards.  Infraction  of
\nprivacy may  be inevitable,  but guards must concede minimum
\nhuman vacy in practice.\n<\/p>\n
     3. By  necessary implication, prisoners ‘under sentence
\nof death’  not’ shall  not be  denied any  of the  community
\namenities, including games, newspapers, books, moving around
\nand meeting  prisoners and  visitors, subject  to reasonable
\nregulation of prison management. Be it noted that Sec. 30 is
\nno  substitute\tfor  sentence  of  imprisonment\t and  merely
\nprescribes  the\t manner\t of  organising\t safe  jail  custody
\nauthorised by Sec. 366 of the Cr. P.C.\n<\/p>\n
     4. More  importantly if the prisoner desires loneliness
\nfor reflection\tand remorse,  for prayers  and making  peace
\nwith his  maker, or  op portunities  for meeting  family  or
\nfriends, such  facilities shall be liberally granted, having
\nregard to  the stressfull  spell of terrestrial farewell his
\nsoul may  be passing  through the compassion society owes to
\nhim whose  life it takes.\n<\/p>\n
     5. The  crucial holding  under Sec.  30(2)\t is  that  a
\nperson is  not\t‘under\tsentence  of  death’,  even  if\t the
\nsessions court has sentenced him
\n489<\/span>
\nto death  subject to  confirmation by  the High Court. He is
\nnot ‘under  A sentence\tof death’  even if  the\t High  Court
\nimposes, by  confirmation  or  fresh  appellate\t infliction,
\ndeath penalty,\tso long as an appeal to the Supreme Court is
\nlikely to  be or  has been moved or is pending. even if this
\nCourt has  awarded capital  sentence, Sec. 30 does not cover
\nhim so long as his petition for mercy to the Governor and\/or
\nto the\tPresident permitted  by the  Constitution, Code\t and
\nPrison\tRules,\thas  not  been\tdisposed.  Of  course,\tonce
\nrejected by  the Governor  and the President, and on further
\napplication  there   is\t no   stay  of\t execution  by\t the
\nauthorities, he\t is ‘under  sentence of\t death’, even  if he
\ngoes  on   making  further   mercy  petitions.\tDuring\tthat
\ninterregnum he\tattracts the custodial segregation specified
\nin Sec.\t 30(2), subject to the ameliorative meaning assigned
\nto the\tprovision. To be ‘under sentence of death’ means ‘to
\nbe under a finally executable death sentence’.\n<\/p>\n
     6. I  do not  rule out  further  restraint\t on  such  a
\ncondemned prisoner  if clear  and present danger of violence
\nor likely  violation of\t custody is,  for good reasons, made
\nout, with  due regard  to the  rules of\t fairplay implied in
\nnatural justice.  Minimal hearing  shall be  accorded to the
\naffected if he is subjected to further severity.\n<\/p>\n
     1. Sec. 56 must be tamed and trimmed by the rule of law
\nand shall not turn dangerous by making the Prison ‘brass’ an
\nimperium in  imperio. The  Superintendent’s power  shall  be
\npruned and his discretion bridled in the manner indicated. E\n<\/p>\n
     2. Under-trials  shall be\tdeemed to be in custody, but
\nnot undergoing punitive imprisonment. So much so, they shall
\nbe accorded more relaxed conditions than. convicts.\n<\/p>\n
     3. Fetters, especially bar fetters, shall be shunned ns
\nviolative of  human dignity, within and without prisons. The
\nindiscriminate resort  to handcuffs when accused persons are
\ntaken to  and from  court and the expedient of forcing irons
\non prison inmates are illegal and shall be stopped forthwith
\nsave in\t a small  category of  cases dealt  with next below.
\nReckless ‘ handcuffing and chaining in public degrades, puts
\nto shame finer sensibilities and is a slur on our culture.\n<\/p>\n
     4. Where  an undertrial  has a  credible  tendency\t for
\nviolence and  escape a\thumanely graduated  degree of ‘iron’
\nrestraint  is  permissible  if\tonly  if-other\tdisciplinary
\nalternatives are  unworkable. The  burden of  proof  of\t the
\nground is  on the  custodian. And  if he  fails, he  will be
\nliable in law.\n<\/p>\n
     5. The  ‘iron’ regimen  shall in  no case go beyond the
\nintervals, conditions  and maxima  laid\t down  for  punitive
\n‘irons’. They  shall be\t for short  spells, light  and never
\napplied if sores exist.\n<\/p>\n
490<\/span><\/p>\n
     6. The  discretion to  impose  ‘irons’  is\t subject  to
\nquasi-judicial over  sight, even  if purportedly imposed for
\nreasons of security.\n<\/p>\n
     7.\t A  previous  hearing,\tminimal\t may  be,  shall  be
\nafforded to  the victims.  In exceptional cases, the hearing
\nmay be\tsoon after.  The rule  in  Gill’s  case\t and  Maneka
\nGandhi’s case gives the guidelines.\n<\/p>\n
     8. The  grounds for  ‘fetters’ shall  be given  to\t the
\nvictim. And when the decision to fetter is made, the reasons
\nshall be  recorded in  the journal and in the history ticket
\nof the\tprisoner in  the State language. If he is a stranger
\nto that\t language it  shall be communicated to him as far as
\npossible, in  his language. This applies to cases as much of
\nprison punishment as of ‘safety’ fetters.\n<\/p>\n
     9 Absent provision for independent review of preventive
\nand punitive action, for discipline or security, such action
\nshall be  invalid as  arbitrary and unfair and unreasonable.
\nThe  prison  officials\twill  then  be\tliable\tcivilly\t and
\ncriminally for hurt to the person of the prisoner. The State
\nwill urgently  set up  or strengthen  the  necessary  infra-
\nstructure and  process in  this behalf-it  already exists in
\nembryo in the Act.\n<\/p>\n
     10. Legal\taid shall  be given  to\t prisoners  to\tseek
\njustice\t from  prison  authorities,  and,  if  need  be,  to
\nchallenge the  decision in court-in cases where they are too
\npoor to\t secure on  their own. If lawyer’s services. are not
\ngiven,\t the   decisional   process   becomes\tunfair\t and
\nunreasonable, especially  because the  rule of\tlaw perishes
\nfor a  disabled prisoner  if   counsel is unapproachable and
\nbeyond purchase.  By and  large, prisoners are poor, lacking
\nlegal literacy,\t under the  trembling control of the jailor,
\nat his\tmercy as  it were,  and unable\tto meet relations or
\nfriends to take legal action. Where a remedy is all but dead
\nthe right lives; only in print. Art. 39 A is relevant in the
\ncontext. Art.  19 will\tbe violated  in such  a case  as the
\nprocess will  be unreasonable.\tArt. 21\t will  be  infringed
\nsince the  procedure is\t unfair and  is arbitrary. In Maneka
\nGandhi the rule has been stated beyond mistake.\n<\/p>\n
     ll. No  ‘fetters’ shall  continue beyond  day  time  as
\nnocturnal  fetters   on\t locked-in  detenus  are  ordinarily
\nuncalled for, viewed from considerations of safety.\n<\/p>\n
     12. The prolonged continuance of ‘irons’, as a punitive
\nor preventive step, shall be subject to previous approval by
\nan external  examiner like  a Chief  Judicial Magistrate  or
\nSessions Judge\twho shall briefly hear the victim and record
\nreasons.  They\tare  ex-officio\t visitors  of  most  central
\nprisons.\n<\/p>\n
     13. The  Inspector General of Prisons shall, with quick
\ndespatch consider  revision petitions  by fettered prisoners
\nand direct the continuation or discontinuation of the irons.
\nIn the absence of such prompt
\n491<\/span>
\ndecision, the fetters shall be deemed to have been negatived
\nand shall A be removed.\n<\/p>\n
     Such meticulous clarification has become necessary only
\nbecause the prison practices have hardly inspired confidence
\nand the\t subject is  human rights.  Because prison officials
\nmust be\t responsible for  the security of the prison and the
\nsafety of  its population,  they must have a wide discretion
\nin promulgating rules to govern the prison population and in
\nimposing disciplinary sanctions for their violation. But any
\nhumanist-jurist will be sceptic like the American Judges who
\nin William King Jackson v. D. E. Bishop(1) observed:\n<\/p>\n
\t  “(1)\tWe  are\t not  convinced\t that  any  rule  or
\n     regulation\t as   to  the  use  of\tthe  strap,  however
\n     seriously\tor   sincerely\tconceived  and\tdrawn,\twill
\n     successfully  prevent   abuse.  The   pre\tsent  record
\n     discloses misinterpretation even of the newly adopted .
\n     . .\n<\/p><\/blockquote>\n
\t  (2) Rules  in this  area  are\t seen  often  to  go
\n\t  unobserved. .\n<\/p><\/blockquote>\n
\t  (3) Regulations are easily circumvented
\n\t  (4) Corporal punishment is easily subject to abuse
\n     in the hands of the sadistic and the unscrupulous.
\n\t  (5) Where power to punish is granted to persons in
\n     lower levels  of administrative  authority, there is an
\n     inherent  and   natural  difficulty  in  enforcing\t the
\n     limitations of that power.”<\/p><\/blockquote>\n
     We find  many objectionable  survivals  in\t the  Prison
\nManual like  whipping and  allergy to  ‘Gandhi Cap’.  Better
\nclassification for ‘Europeans’ is still in the book ! I hope
\nthat Prison  Reform will  receive prompt  attention  as\t the
\nhigher political  echelons in  the country know the need and
\nwe may\tnot be\tcalled upon  to pronounce on the inalienable
\nminima of  human rights\t that our constitutional order holds
\ndear. It  is noteworthy\t that, as  pointed out\tin Furman v.
\nGeorgia(2) with\t reference to  death sentence,\tby  Justices
\nDouglas and  Marshall, the more painful prison cruelties are
\noften imposed  on the  socioeconomic weak  and the  militant
\nminorities.   Our   prisons,   both   in   the\t matter\t  of
\nclassification for treatment and in the matter of preventive
\nor punitive  imposts, face the same criticism. To thoughtful
\nsociologists it\t seems evident\tthat prison  severities\t are
\nvisited\t mostly\t  on  agitators,   dissenters,\t protesters,
\nproletarians and weaker sections. Moreover, punitive ‘vested
\ninterest’   sometimes\twears\t‘preventive’   veils,\twhen
\nchallenged and\twe cannot  wish away discretionary injustice
\nby
\n     (1) Federal Reporter. 2nd Series, Vol 404, p. 571.
\n     (2) 33 L. Ed. 2d. 346.\n<\/p>\n
1 5- 526 SCI\/78
\n492<\/span>
\nburying our  heads in  the sands  of  incredible  credulity.
\nCourts must  be astute\tenough to end these ‘crimes’ against
\ncriminals by correctional interpretation.\n<\/p>\n
     ‘Freedom behind  bars’ is\tpart of\t our  constitutional
\ntryst and  the index  of our  collective consciousness. That
\nthe flower  of human  divinity never  fades, is\t part of our
\ncultural  heritage.   Bonded   labour,\t cellular   solitary
\nconfinement,  corporal\t punishments,  status-based  elitist
\nclassification and  the like  deserve  to  be  sentenced  to
\ntransportation\tfrom   prisons\tand   humanising  principles
\ngranted visa  into prison campuses. In short, transformation
\nof  consciousness   is\tthe  surest  ‘security’\t measure  to
\nantidote  social   entropy.  That   is\tthe   key  to  human
\ndevelopment-rights and\tresponsibilities-within and  without
\nprisons.\n<\/p>\n
     Positive  experiments   in\t re-humanization-meditation,
\nmusic, arts  of self-expression,  games,  useful  work\twith
\nwages,\tprison\t festivals,  sramdan   and  service-oriented
\nactivities, visits  by and  to families, even par ticipative
\nprison projects and controlled community life, are among the
\nre-humanization strategies  which need consideration. Social
\njustice, in the prison context, has a functional versatility
\nhardly explored.\n<\/p>\n
     The roots\tof our\tConstitution lie  deep in  the finer
\nspiritual sources  of social justice, beyond the melting pot
\nof bad\tpoliticking, feudal crudities and sublimated sadism,
\nsustaining itself  by profound\tfaith in Man  and his latent
\ndivinity and  the confidence  that ‘you\t can  accomplish  by
\nkindness what  you cannot  do by force'(l) and so it is that
\nthe Prisons  Act provisions  and the Jail Manual itself must
\nbe revised to reflect this deeper meaning in the behavioural
\nnorms, correctional attitudes and humane orientation for the
\nprison\tstaff\tand  prisoners\t alike.\t We   cannot  become
\nmisanthropes and  abandon values, scared by the offchance of
\nsome stray  desperate character. Then amputation of limbs of
\nunruly suspects\t may be\t surer security measure and corporaI
\npunishment may\thave a\tfield day  atfer a long holiday. The
\nessence of my opinion in both these cases is the infusion of
\nthe higher consciousness of the Constitution into the stones
\nof law which make the prison houses.\n<\/p>\n
     The winds\tof change  must blow  into our\tcarcers\t and
\nself-expression\t and   self-respect   and   self-realization
\ncreatively substituted\tfor the\t dehumanising  remedies\t and
\n‘wild life’  techniques still current in the jail armoury. A
\nfew prison villains-they exist-shall not make martyrs of the
\nhumane many;  and even\tfrom these  few, trust slowly begets
\ntrust.\t Sarvodaya   and   antyodaya   have   criminological
\ndimensions which our social justice awareness must apprehend
\nand actualize. I justify
\n(1) Pubillus Syrus
\n493<\/span>
\nthis observation  by reference\tto the\tnoble  but  inchoate
\nexperiment (or\tunnoticed epic)\t whereby  Shri\tJai  Prakash
\nNarain redemptively brought murderously dangerous dacoits of
\nChambal Valley\tinto prison  to turn  a responsible  page in
\ntheir life  in and out of jail. The rehabilitative follow-up
\nwas, perhaps, a flop.\n<\/p>\n
     In short,\tthe  technology\t of  raising  the  level  of
\nawareness, not\tgene- rating hatred by repression, shows the
\nway to\tmaking prison  atmosphere safe\tand  social  defence
\nsecure.\t Criminology   and  consciousness  are\tpartners  in
\ncommunity protection.\n<\/p>\n
The Final Directions
\n     I hold  that even\tthough Sec. 30 is intra vires, Batra
\nshall not  be kept  under constant,  guard in a cell, all by
\nhimself, unless\t he seeks such an exclusive and lonely life.
\nIf he  loses all along the way right to the summit court and
\nthe top\t executive, then  and only  then, shall\t he be\tkept
\napart from  the other  prisoners under the constant vigil of
\nan  armed  guard.  Of  course,\tif  proven  grounds  warrant
\ndisciplinary segregation,  it  is  permissible,\t given\tfair
\nhearing and review.\n<\/p>\n
     The petitioner,  Sobhraj, cannot  be granted the relief
\nof striking  down Section  56 or related prison rules but he
\nsucceeds, in  substance, with regard to his grievance of bar
\nfetters. Such fetters shall forthwith be removed and he will
\nbe allowed  the freedom\t of  undertrials  inside  the  jail,
\nincluding locomotion-not  if he\t has already been convicted.
\nIn the eventuality of display of violence or escape attempts
\nor creds  evidence bringing  home such a potential adventure
\nby him,\t he may\t be kept under restraint. Irons shall not be
\nforced on  him unless  the situation  is  one  of  emergency
\nleaving no  other option  and in any case that torture shall
\nnot be\tapplied without\t compliance with natural justice and
\nother limitations indicated in the judgment.\n<\/p>\n
     Prison laws,  now in  bad shape,  need  rehabilitation;
\nprison staff,  soaked in  the Raj  past, need reorientation;
\nprison house  and practices.  a\t hangover  of  the  die-hard
\nretributive   ethos,\treconstruction;\t  prisoners,   those
\nnoiseless,  voiceless\thuman  heaps,  cry  for\t therapeutic
\ntechnology; and\t prison justice,  after long jurisprudential
\ngestation, must\t now be\t re-born through judicial midwifery,
\nif need\t be. No longer can the Constitution be curtained off
\nfrom  the  incarcerated\t community  since  pervasive  social
\njustice\t is  a\tfighting  faith\t with  Indian  humanity.  I,
\nhopefully, alert  the  nation  and,  for  the  nonce,  leave
\nfollow-up action  to the  Administration with  the note that
\nstone walls  and iron bars do not ensure a people’s progress
\nand revolutionary  history teaches  that tense bastilles are
\nbrittle before human upsurges and many tenants of iron cells
\nare sensitive harbingers of Tomorrow-many a Socrates,
\n494<\/span>
\nShri Aurobindo,\t tilak, Thoreau,  Bhagat Singh Gandhi! So it
\nis that\t there is urgency for bridging the human gap between
\nprison praxis  and prison  justice; in\tone sense,  it is  a
\nbattle of  the tenses  and in  an another,  an imperative of
\nsocial justice.\n<\/p>\n
     If I  may end  withy an answer to the question posed at
\nthe beginning, so long as constitutional guarantees are non-
\nnegotiable, human right, entrenched in the National Charter,
\nshall  not  be\theld  hostages\tby  Authority.\t  Emergency,
\nexigency, dangerousness,  discipline, security\tand autonomy
\nare theoretically  palatable expressions,  but\tin  a  world
\nwhere prison are laboratories of torture or warehouses where
\nhuman commodities  are sadistically kept and the spectrum of
\ninmates\t range\t from  drift-wood   juveniles\tto   heroics
\ndissenters,\tcourts-\t    and\t    other     constitutional
\ninstrumentalities-  should   not  consent   to\tmake   jails
\njudgeproof to  tearful\tinjustice.    Until  current  prison
\npathology is  cured and prison justice restored, stone walls
\nand iron  bars will  not solve\tthe crime crisis confronting
\nsociety today.\n<\/p>\n
     I am  aware that a splendid condensation of the answers
\nto the\tscore questions\t has been  presented by\t my  learned
\nbrother Desai,\tJ and I endorse the conclusion. But when the
\nissue is grave and the nation, now and again, groans because
\nprisons breed  horror and  bruited reforms  remain a teasing
\nillusion and  promise of  unreality, brevity  loses its lure
\nfor me\tand going  it alone to tell the country plain truths
\nbecomes unobviable.   If  Parliament and  Government do\t not
\nheed to-day, the next day comes.  And, in an appeal to Human
\nTo morrow,  ‘if none  responds to your call, walk alone walk
\nalone!’ Judicial power is a humane trust ‘to drove the blade
\na little  forward in  your time,  and to feel that somewhere
\namong these  millions you  have left  a\t little\t justice  or
\nhappiness or  prosperity, a  sense of  manliness  or  moral,
\ndignity, a  spring of  patriotism, a  dawn  of\tintellectual
\nenlightenment or  a stirring  of duty where it did not exist
\nbefore’ that is enough.\n<\/p>\n
     The petitions  succeed in\tprinciple but in view of the
\nad interim  orders which  have been  carried out and the new
\nmeaning read  into the\trelevant provision  of the  Act\t the
\nprayer to strike down becomes otiose.  Batra and Sobraj have
\nlost the battle in  part but won the war in full
\n     I agree that the petitions be dismissed.\n<\/p>\n
     DESAI, J  -These two petitions under Article 32  of the
\nConstitution by two internees confined in Tihar Central Jail
\nChallenge the  vires of\t sections 30  and 56  of the Prisons
\nAct.  Sunil   Batra,  a\t convict  under\t sentence  of  depth
\nchallenges his solitary confinement sought.\n<\/p>\n
495<\/span><\/p>\n
to be  supported by  the provisions  of s. 30 of the Prisons
\nAct (for  short the  Act); Charles Sobhraj a French national
\nand then  an under  trial prisoner  challenges the action of
\nthe Superintendent  of Jail putting him into bar fetters for
\nan  unusually  long  period  commencing\t from  the  date  of
\nincarceration on  6th July  1976 till this Court intervented
\nby an  interim order  on 24th February 1978. Such a gruesome
\nand hair-raising  picture  was\tpointed\t at  some  stage  of
\nhearing that  Chief Justice M. H. Beg, V. R. Krishna Lyer, J
\nand P.\tS. Kailasam  J<\/a> who were then seized of the petitions
\nvisited the  Tihar Central  Jail on 23rd January 1978. Their
\nnotes of inspection form part of the record.\n<\/p>\n
     There are\tcertain broad submissions common to both the
\npetitions and  they may\t first be  dealt before\t turning  to
\nspecific contentions in each petition. It is no more open to
\ndebate\tthat  convicts\tare  not  wholly  denuded  of  their
\nfundamental rights. No iron curtain can be drawn between the
\nprisoner and the Constitution. Prisoners are entitled to all
\nconstitutional\trights\t unless\t their\t liberty  has\tbeen
\nconstitutionally curtailed  (see Procunier  v. Martinex).(l)
\nHowever, a  prisioner’s liberty\t is in\tthe very  nature  of
\nthings circumscribed  by the  very fact\t of his confinement.
\nHis interest  in the limited liberty left to him is then all
\nthe more  substantial. Conviction  for crime does not reduce
\nthe person  into a nonperson whose rights are subject to the
\nwhim  of  the  prison  administration  and,  therefore,\t the
\nimposition of  any major punishment within the prison system
\nis conditional\tupon the observance of procedural safeguards
\n(see Wolff  v.\tMcDonnell).(“)\tBy  the\t very  fact  of\t the
\nincarceration prisoners\t are not  in a position to enjoy the
\nfull panoply of fundamental rights because these very rights
\nare subject  to restrictions  imposed by  the nature  of the
\nregime to  which they  have been  lawfully committed.  In D.
\nBhuvan Mohan  Patnaik &\t ors. v.  State of  Andhra Pradesh &<\/a>
\nors(3) one of us, Chandrachud J., observed:-\n<\/p>\n
\t  “Convicts  are   not,\t by   mere  reason   of\t the
\n     conviction denuded\t of all the fundamental rights which
\n     they  otherwise   possess.\t A   compulsion\t under\t the
\n     authority of  law, following upon a conviction, to live
\n     in\t a   prison-house  entails  by\tits  own  force\t the
\n     deprivation of  fundamental freedoms  like the right to
\n     move freely  throughout the  territory of\tIndia or the
\n     right to  “practice” a  profession. A man of profession
\n     would  thus   stand  stripped  of\this  right  to\thold
\n     consultations while  serving out  his sentence. But the
\n     Constitution guaran-\n<\/p><\/blockquote>\n
     (1) 40 L. Ed. 2d. 224 at 24′.\n<\/p><\/blockquote>\n
     (2) 41 I,. Ed. 2d. 935 at 973.\n<\/p><\/blockquote>\n
     (3) [1975] 2 SCR 24.\n<\/p><\/blockquote>\n
496<\/span><\/p>\n
     tees other freedoms like the right to acquire, hold and
\n     dispose  of   property  for   the\texercise   of  which
\n     incarceration can\tbe no  impediment. Likewise,  even a
\n     convict is entitled to the precious right guaranteed by
\n     Article 21\t of the\t Constitution that  he shall  not be
\n     deprived  of   his\t life  or  personal  liberty  except
\n     according to procedure established by law”.\n<\/p><\/blockquote>\n
Undoubtedly, lawful  incarceration  brings  about  necessary
\nwithdrawal  or\tlimitation  of\tsome  of  these\t fundamental
\nrights, the retraction being justified by the considerations
\nunderlying the penal system (see Poll v. Procunier) (1)
\n     Consciously  and\tdeliberately  we   must\t focus\t our
\nattention, while examining the challenge, to one fundamental
\nfact that  we are required to examine the validity of a pre-
\nconstitution statute  in the context of the modern reformist
\ntheory of  punishment, jail  being treated as a correctional
\ninstitution. But  the necessary\t concomitants of the fact of
\nincarceration, the  security of the prison and safety of the
\nprisoner, are  to be  kept in  the forefront.  Not that\t the
\ncourt would  ever abdicate its constitutional responsibility
\nto delineate  and protect the fundamental rights but it must
\nsimultaneously put  in balance\tthe twin  objects underlying
\npunitive or  preventive incarceration.\tThe Court  need\t not
\nadopt a\t “hands off”  attitude as has been occasionally done
\nby Federal  Courts in  the United  States in  regard to\t the
\nproblem of  prison administration.  It is  all the  more  so
\nbecause a convict is in prison under the order and direction
\nof the\tCourt. The  Court has,\ttherefore, to  strike a just
\nbalance between\t the dehumanising  prison atmosphere and the
\npreservation  of   internal  order   and   discipline,\t the
\nmaintenance of\tinstitutional security\tagainst escape,\t and
\nthe rehabilitation  of the  prisoners.\tSection\t 30  of\t the
\nPrisons Act reads  as under:-\n<\/p>\n
\t  “30. (1)  Every prisoner  under sentence  of death
\n     shall, immediately\t on his\t arrival in the prison after
\n     sentence, be  searched by,\t or by\torder of, the Jailer
\n     and all  articles shall  be taken\tfrom him  which\t the
\n     Jailer deems  it dangerous\t or inexpedient\t to leave in
\n     his possession.\n<\/p><\/blockquote>\n
\t  (2) Every  such prisoner  shall be  confined in  a
\n     cell apart\t from all  other  prisoners,  and  shall  be
\n     placed by\tday and\t by night  under  the  charge  of  a
\n     guard”.<\/p><\/blockquote>\n
     The gravamen of the argument is that sub-section (2) of
\ns. 30  of the  Act does not authorise the prison authorities
\nin the garb of securing a prisioner under sentence of death,
\nto confine him in a cell\n<\/p>\n
     1) 41 L. Ed. 2d. 495 ,at 501.\n<\/p>\n
497<\/span><\/p>\n
apart from  other prisoners by imposing solitary confinement
\nupon A\thim. It\t is alleged  that  since  the  date  of\t his
\nconviction  by\tthe  Sessions  Judge  awarding\thim  capital
\npunishment, Batra is kept in solitary confinement.\n<\/p>\n
     Mr. Chitale,  who gave  us competent  assistance as  an
\namicus curiae  for Batra, after drawing our attention to the
\ndevelopment of\tpsycho- pathological  syndrome in  prisoners
\nunder solitary\tconfinement for\t an unlimited  period, urged
\nthat  s.   30  of  the\tAct  does  not\tempower\t the  prison
\nauthorities to\tplace the  prisoner in solitary confinement.
\nIt was\tsaid that  if  5.  46(8)  and  (10)  empower  prison
\nauthorities to\timpose separate or cellular confinement as a
\npunishment for\tjail offences,\tsolitary  confinement  being
\nmore tormenting\t in effect,  can-  not\tbe  imposed  on\t the
\nprisoner, more\tso because it is by itself a punishment that
\ncan be\tawarded under ss, 73 and 74 of the Indian Penal Code
\nand that  too by a Court. The jail authority cannot arrogate
\nto itself  the power  to impose\t such a punishment under the
\ngarb of\t giving effect\tto sub-s. (2) of s. 30. In any event
\nit was\tcontended that\tif sub-s. (2) of s. 30 of the Act is
\nto  be\t construed  to\t mean  that   it  authorises  prison
\nauthorities to\timpose solitary\t confinement it is violative
\nof Articles 14, 19, 20 and 21 of the Constitution.\n<\/p>\n
     It may  be conceded  that solitary\t confinement  has  a
\ndegrading and  dehumanising effect  on prisioners.  Constant
\nand unrelieved\tisolation of a prisoner is so unnatural that
\nit may\tbreed insanity. Social isolation represents the most
\ndestructive abnormal  environment. Results  of long solitary
\nconfinement are disastrous to the physical and mental health
\nof those  subjected to it. It is abolished in U.K. but it is
\nstill retained in U.S.A. F
\n     If sub-s.\t(2) of s. 30 enables the prison authority to
\nimpose solitary\t confinement of a prisoner under sentence of
\ndeath not as a consequence of violation of prison discipline
\nbut on\tthe sole  and solitary ground that the prisoner is a
\nprisoner under sentence of death, the provision contained in
\nsub-s. (2)  would offend  article 20  in the  first place as
\nalso  articles\t 14  and   l9.\t  If  by  imposing  solitary
\nconfinement  there   is\t total\tdeprivation  of\t comaraderie
\namongst\t coprisoners,  co-mingling  and\t talking  and  being
\ntalked\tto,   it  would\t  offend  article  21.\tThe  learned
\nAdditional Solicitor General while not adopting any dogmatic
\nposition, urged\t that  it  is  not  the\t contention  of\t the
\nrespondents that snb-s. (2) empowers the authority to impose
\nsolitary  confinement,\t but  it  merely  permits  statutory
\nsegregation for\t safety of  the prisoner  in prisoners’\t own
\ninterest and
\n498<\/span>
\ninstead of  striking down  the provision we should adopt the
\ncourse of so reading down the section as to denude it of its
\nugly inhuman features.\n<\/p>\n
     It must  atonce be\t made clear that sub-s. (2) of s. 30
\ndoes not  empower the  prison authority\t to impose  solitary
\nconfinement, in\t the sense  in which that word is understood
\nin para\t 510 of\t Jail Manual, upon a prisoner under sentence
\nof death.  Sections 73 and 74 of the Indian Penal Code leave
\nno room\t for doubt  that solitary confinement is by itself a
\nsubstantive punishment\twhich can  be imposed  by a Court of
\nlaw. It\t cannot be  left to  the whim  and caprice of prison
\nauthorities. The  limit of  solitary confinement that can be
\nimposed under  Court’s order is strictly prescribed and that
\nprovides internal  evidence of\tits abnormal  effect on\t the
\nsubject.  Solitary  confinement\t as  substantive  punishment
\ncannot in  any case  exceed 14 days at a time with intervals
\nof not\tless duration  than such  periods  and\tfurther,  it
\ncannot be imposed until the medical officer certifies oh the
\nhistory ticket that the prisoner is fit to undergo it. Every
\nprisoner while\tundergoing solitary  confinement has  to  be
\nvisited\t daily\t by  the  medical  officer,  and  when\tsuch
\nconfinement is for a period of three months it cannot exceed
\nseven days  in any  one\t month\tof  the\t whole\timprisonment
\nawarded, with  intervals between  the  periods\tof  solitary
\nconfinement of not less duration than such periods (see
\n s. 74, IPC). The Court cannot award more than three months’
\nsolitary confinement  even if the total term of imprisonment
\nexceeds\t one  year  (see  s.  73,  IPC).  This\tis  internal
\nevidence,  if\tany  is\t  necessary,  showing  the  gruesome
\ncharacter of solitary confinement. It is so revolting to the
\nmodern sociologist  and law reformist mat the Law Commission
\nin its 42nd Report, page 78, recommended that the punishment
\nof solitary  confinement is out of tune with modern thinking
\nand should  not\t find  a  place\t in  the  Penal\t Code  as  a
\npunishment to  be ordered by any criminal court, even though
\nit may\tbe necessary  as a measure of jail discipline Sub-s.
\n(2) of\ts. 30 does not purport to provide a punishment for a
\nbreach of Jail discipline. Prison offences are set out in s.\n<\/p>\n
45. Section  46\t confers  power\t on  the  Superintendent  to
\nquestion any person alleged to have committed a jail offence
\nand punish  him for  such offence.  The relevant sub clauses
\nfor the\t present purpose  are sub-clauses (8) and (10) which
\nread as under:\n<\/p>\n
\t  “46. The  Superintendent may\texamine\t any  person
\n     touching any such offence, and determine thereupon, and
\n     punish such offence by-\n<\/p><\/blockquote>\n
499<\/span><\/p>\n
     ( 8 ) separate confinement for any period not exceeding
\n     three months;\n<\/p><\/blockquote>\n
\t  Explanation-Separate\t confinement\tmeans\tsuch
\n     confinement  with\tor  without  labour  as\t secludes  a
\n     prisoner from  communication with,\t but not  from sight
\n     of, other\tprisoners, and\tallows him not less than one
\n     hour’s exercise  per diem\tand to\thave  his  meals  in
\n     association with one or more other prisoners;
\n     x x x x x
\n\t  (10)\tcellular  confinement  for  any\t period\t not
\n     exceeding fourteen days:\n<\/p><\/blockquote>\n
\t  Provided that such restriction of diet shall in no
\n     case be applied interval of not less duration than such
\n     period  must   elapse  before  the\t prisoner  is  again
\n     sentenced to cellular or solitary confinement;
\n\t  Explanation-Cellular\t confinement\tmeans\tsuch
\n     confinement with or without labour as entirely secludes
\n     a prisoner\t from communication with, but not from sight
\n     of, other prisoners”.<\/p><\/blockquote>\n
     The explanation  to sub-clause  (8) makes it clear that
\nhe is  not wholly segregated from other prisoners in that he
\nis not\tremoved from  the sight of other prisoners and he is
\nentitled to  have his  meals in association with one or more
\nother  prisoners.  Even\t such  separate\t confinement  cannot
\nexceed\tthree\tmonths.\t Cellular   confinement\t secludes  a
\nprisoner from  communication with  other prisoners  but\t not
\nfrom the  sight of other prisoners. However, para 847 of the
\nPunjab Jail  Manual and\t the provisions\t which follow, which
\nprescribe  detailed  instructions  as  to  how\ta  condemned
\nprisoner is  to be  kept, if  literally enforced, would keep
\nsuch prisoner  totally out  of bounds, i.e. beyond sight and
\nsound. Neither separate confinement nor cellular confinement
\nwould be  as tortuous  or  horrendus  as  confinement  of  a
\ncondemned prisoner  Sub-s. (2)\tof s. 30 merely provides for
\nconfinement of\ta prisoner under sentence of death in a cell
\napart from other prisoners and he is to be placed by day and
\nnight under  the charge\t of a  guard. Such  confinement\t can
\nneither be cellular confinement nor separate confinement and
\nin any\tevent it  cannot be  solitary  confinement.  In\t our
\nopinion, sub-s.\t (2) of\t s. 30\tdoes not  empower  the\tjail
\nauthorities in\tthe  garb  of  confining  a  prisoner  under
\nsentence of death, in a cell apart from all other prisoners,
\nto impose  solitary confinement on him. Even jail discipline
\ninhibits solitary
\n500<\/span>
\nconfinement as\ta measure  of jail punishment. It completely
\nnegatives any  suggestion that\tbecause a  prisoner is under
\nsentence  of   death  therefore,   and\tby  reason  of\tthat
\nconsideration alone,  the jail\tauthorities can\t impose upon
\nhim  additional\t  and  separate\t  punishment   of   solitary
\nconfinement. They  have no  power to  add to  the punishment
\nimposed by  the Court which additional punishment could have
\nbeen imposed by the Court itself but has in fact been not so
\nimposed. Upon  a true construction, sub-s. (2) of s. 30 does
\nnot  empower   a  prison   authority  to   impose   solitary
\nconfinement upon a prisoner under sentence of death.\n<\/p>\n
     If s. 30(2) does not empower the jail authority to keep
\na condemned prisoner in solitary confinement, the expression
\n“such prisoner\tshall be  confined in  a cell apart from all
\nother prisoners’ will have to be given some rational meaning
\nto effectuate  the purpose behind the provision so as not to
\nattract the  vice of solitary confinement. We will presently
\npoint out  the nature  of detention in prison since the time
\ncapital sentence  is awarded  to an  accused and until it is
\nexecuted,  simultaneously   delineating\t the   steps   while
\nenforcing the impugned provision.\n<\/p>\n
     The next  question is: who is a prisoner under sentence
\nof death  and how  is he  to be\t dealt with when confined in
\nprison before execution of sentence? If solitary confinement
\nor cellular  or separate confinement cannot be imposed for a
\nperiod beyond  three months in any case, would it be fair to
\nimpose confinement  in terms of s. 30(2) on a prisoner under
\nsentence of  death right  from the  time the  Sessions Judge
\nawards capital\tpunishment  till  the  sentence\t is  finally
\nexecuted ? The sentence of death imposed by a Sessions Judge
\ncannot be  executed unless it is confirmed by the High Court
\n(see s.\t 366(1), Cr.  P.C.). However, we are not left in any
\ndoubt that  the prison\tauthorities treat  such a convict as
\nbeing governed\tby s.  30(2)  despite  the  mandate  of\t the
\nwarrant under  which he\t is detained that the sentence shall
\nnot be\texecuted till  further orders  are received from the
\nCourt. It  is undoubtedly obligatory upon the Sessions Judge
\nwhile imposing\tthe sentence  of death on a person to commit
\nhim  to\t jail  custody\tunder  a  warrant.  Now,  after\t the
\nconvicted  person  is  so  committed  to  jail\tcustody\t the
\nSessions Judge\tsubmits\t the  case  to\tthe  High  Court  as
\nrequired by  s. 366,  Cr. P.C.\tThe High  Court\t may  either
\nconfirm the sentence or pass any other sentence warranted by
\nlaw or\tmay even  acquit such  a person.  Thereafter, upon a
\ncertificate granted by the High Court under Article
\n501<\/span>
\n134(c) of the Constitution or by special leave under Article
\n136, an\t appeal can  be\t preferred  to\tthe  Supreme  Court.
\nSection 415, Cr. P.C. provides for postponement of execution
\nof sentence  of death  in case\tof appeal  to Supreme  Court
\neither upon  a certificate  by the High Court or as a matter
\nof  right  under  Supreme  Court  (Enlargement\tof  criminal
\nAppellate Jurisdiction) Act, 1971, or by special leave under
\nArticle 136.  Further, under  Articles 72  and\t161  of\t the
\nConstitution, the  President and the Governor in the case of
\nsentence of  death has\tpower to  grant pardon,\t reprieve or
\nremittance or commutation of the sentence. No one is unaware
\nof the\tlong time lag in protracted litigation in our system
\nbetween the  sentence of  death as  imposed by\tthe Sessions
\nCourt and  the final  rejection of an publication for mercy.
\nCases are  not unknown\twhere merely  on account  of a\tlong
\nlapse of time the Courts have commuted the sentence of death
\nto one\tof life\t imprisonment on  the sole  ground that\t the
\nprisoner was  for a  long time hovering under the tormenting
\neffect of  the shadow  of death.  Could it then be said that
\nunder sub-s.  (2) of  s. 30  such prisoner from the time the
\ndeath sentence\tis awarded  by the  Sessions Judge has to be
\nconfined in  a cell apart from other prisoners? The prisoner
\nin such\t separate, confinement\twould be  under a trauma for
\nunusually long\ttime, and  that could never be the intention
\nof  the\t legislature  while  enacting  the  provision.\tSuch
\nspecial precautionary  measures heaping\t untold misery\ton a
\ncondemned prisoner  cannot spread  over a long period giving
\nhim no\trespite to  escape from\t the boredom by physical and
\nmental contact\twith other prisoners. What then. must be the
\nunderlying meaning  of\tthe  expression\t “a  prisoner  under
\nsentence of death” in s. 30 so as to reduce and considerably
\nminimise the  period during  which the prisoner suffers this
\nextreme or additional torture ?\n<\/p>\n
       The  expression “prisoner under sentence of death” in
\nthe context of sub-s (2) of s. 30 can only mean the prisoner
\nwhose sentence\tof death  has become  final, conclusive\t and
\nindefeasible which  cannot be  annulled\t or  voided  by\t any
\njudicial or  constitutional procedure.\tIn other  words,  it
\nmust be a sentence which the authority charged with the duty
\nto execute  and carry  out must proceed to carry out without
\nintervention from  any\toutside\t authority.  In\t a  slightly
\ndifferent context  in State of Maharashtra v. Sindhi<\/a> @ Raman
\n(I), it\t was said  that the trial of an accused person under
\nsentence of  death does not conclude with the termination of
\nthe proceedings\t in the\t Court of  Sessions because  of\t the
\nreason that  the sentence  of death  passed by\tthe Sessions
\nCourt is subject to confirma-\n<\/p>\n
     (1) [1975] 3 SCR 574.\n<\/p>\n
502<\/span><\/p>\n
tion by\t the High  Court. A  trial cannot  be deemed to have
\nconcluded  till\t an  executable\t sentence  is  passed  by  a
\ncompetent court.  In the  context of  s. 303  of the  Indian
\nPenal Code  it was  said in  Shaik Abdul  Azeez v.  State of
\nKarnataka,<\/a>(l) that  an accused\tcannot be  under sentence of
\nimprisonment for  life at  the time  of\t commission  of\t the
\nsecond murder  unless  he  is  actually\t undergoing  such  a
\nsentence or  there is  legally\textant\ta  judicially  final
\nsentence which\the is bound to serve without the requirement
\nof a  separate order to breathe life into the sentence which
\nwas otherwise dead on account of remission under s. 401, Cr.
\nP.C. Therefore.\t the prisoner  can be  said to\tbe under the
\nsentence of  death only\t when the  death sentence  is beyond
\njudicial  scrutiny   and  would\t be  operative\twithout\t any
\nintervention from  any other authority. Till then the person
\nwho is\tawarded capital\t punishment  cannot  be\t said  be  a
\nprisoner under\tsentence of  death in  the context of s. 30,
\nsub-s. (2). This interpretative process would, we hope, to a
\ngreat extent  relieve the  torment and\ttorture implicit  in
\nsub-s. (2) of s. 30, reducing the period of such confinement
\nto a short duration.\n<\/p>\n
       What  then is the nature of confinement if a prisoner
\nwho is awarded capital sentence by the Sessions Judge and no
\nother  punishment  from\t the  time  of\tsentence  till\tthis
\nsentence becomes  automatically executable  ? Section 366(2)
\nof the\tCr. P.C.  enable the  Court to\tcommit the convicted
\nperson who  is awarded\tcapital punishment  to jail  custody
\nunder a\t warrant. It  is implicit  in the  warrant that\t the
\nprisoner   is\t neither   awarded   simple   nor   rigorous
\nimprisonment. The  purpose behind  enacting sub-s. (2) of s.
\n366 is\tto make\t available the prisoner when the sentence is
\nrequired to  be executed.  He is to be kept in jail custody.
\nBut this  custody is  something different  from custody of a
\nconvict suffering  simple or  rigorous imprisonment.  He  is
\nbeing kept  in jail  custody for  making him  available\t for
\nexecution of the sentence as and when that situation arises.
\nAfter the  sentence becomes  executable he  may be kept in a
\ncell apart  from other prisoners with a day and night watch.
\nBut even  here, unless special circumstances exist, her must
\nbe within the sight and sound of other prisoners and be able
\nto take food in their company.\n<\/p>\n
     If the prisoner under sentence of death is held in jail
\ncustody, punitive  detention cannot  be imposed\t upon him by
\njail authorities except for prison offences. When a prisoner
\nis committed  under a  n warrant  for jail  custody under s.
\n366(2) Cr.P.C. and if he is detained in solitary confinement
\nwhich is a Punishment prescribed by s.\n<\/p>\n
     (1) [1977] 3 SCR 393.\n<\/p>\n
503<\/span><\/p>\n
73, IPC,  it will amount to imposing punishment for the same
\noffence A more than once which would be violative of Article
\n20(2). But  as the  prisoner is\t not to\t be kept in solitary
\nconfinement and\t the custody in which he is to be kept under
\ns. 30(2)  as interpreted  by us\t would preclude detention in
\nsolitary confinement,  there is no chance of imposing second
\npunishment upon him and therefore, s. 30(2) is not violative
\nof Article 20.\n<\/p>\n
       Article 21 guarantees protection of life and personal
\nliberty. Though\t couched in negative language it confers the
\nfundamental right  to life  and\t personal  liberty.  To\t the
\nextent, assuming  sub-s.  (2)  of  s.  30  permits  solitary
\nconfinement, the  limited personal liberty of prisoner under
\nsentence of  death is  rudely  curtailed  and  the  life  in
\nsolitary confinement  is even worse than in imprisonment for
\nlife. The  scope of  the words\t“life and  liberty” both  of
\nwhich  occur  in  Vth  and  XIVth  Amendments  of  the\tU.S.
\nConstitution, which  to some  extent are  the  precurser  of
\nArticle 21,  have been vividly explained by Field J. in Munn
\nv. Illinois(1) To quote:\n<\/p>\n
\t  “By the term “life” as here used something more is
\n\t  meant than  mere animal  existence. The inhibition
\n\t  against’ its\tdeprivation  extends  to  all  these
\n\t  limits and faculties by which life is enjoyed. The
\n\t  provision equally  prohibits the mutilation of the
\n\t  body or amputation of an arm or leg or the putting
\n\t  out of  an eye  or the  destruction of  any  other
\n\t  organ\t of   the  body\t  through  which   the\tsoul
\n\t  communicates with  the outer\tworld….by the term
\n\t  liberty, as wed in the provision something more is
\n\t  meant than mere freedom from physical restraint or
\n\t  the bonds of a prison”.<\/p><\/blockquote>\n
       This  statement of law was approved by a Constitution
\nBench of  this Court  in Kharak Singh v. State of U.P.,<\/a>(2)as
\nalso in\t D. B.\tPatnaik (supra). Personal liberty as used in
\nArticle is has been held to be a compendious term to include
\nwithin itself  all the\tvarieties of rights which go to make
\npersonal liberties of the man other than those dealt with in
\nclause (d)  of Article\t19(1). The  burden  to\tjustify\t the
\ncurtailment thereof must squarely rest on the State.\n<\/p>\n
       There is no more controversy which ranged over a long
\nperiod about the view expressed in A. K. Gopalan v. State of
\nMadras,<\/a>(3  that\t  certain  articles   of  the\tConstitution
\nexclusively  deal   with  specific  matters  and  where\t the
\nrequirements of\t an article dealing with a particular matter
\nin question are satisfied and there is no infringement of
\n     (1) [1877] 94 US 113 at 142.\n<\/p>\n
     (2) [1964] I SCR 332 at 347.\n<\/p>\n
     (3) [1950] SCR 88.\n<\/p>\n
504<\/span><\/p>\n
the fundamental right guaranteed by the article, no recourse
\ncan  be\t had  to  fundamental  right  conferred\t by  another
\narticle.  This\t doctrine  of\texclusivity  was   seriously
\nquestioned in  R. C. Cooper v. Union of India,<\/a>(l) and it was
\noverruled by  a majority  of Judges  of this  Court Ray,  J.
\ndissenting. In\tfact, in Maneka Gandhi v. Union of India,<\/a>(2)
\nBhagwati, J. Observed as under:\n<\/p>\n
\t   “The law must, therefore, now be taken to be well
\n\t  settled That\tarticle 21  does not exclude article
\n\t  19 and  that even  if there is a law prescribing a
\n\t  procedure  for  depriving  a\tperson\tof  personal
\n\t  liberty and there is consequently no in fringement
\n\t  of the  fundamental right conferred by article 21,
\n\t  such law,  in sq  far as it abridges or takes away
\n\t  any fundamental  right under article 19 would have
\n\t  to meet  the challenge of that article… if a law
\n\t  depriving  a\t person\t of   personal\tliberty\t and
\n\t  prescribing a\t procedure for that pur- pose within
\n\t  the meaning of Article 21 has to stand the test of
\n\t  one or  more of  the fundamental  rights conferred
\n\t  under article\t 19 which  may be  applicable  in  a
\n\t  given situation,  ex hypothesis  it must  also  be
\n\t  liable to  be tested\twith refer  -ence to article
\n\t  14”.<\/p><\/blockquote>\n
       The  challenge under  article 21\t must  fail  on\t our
\ninterpretation of  sub s.(2)  of s.  30. Personal liberty of
\nthe  person  who  is  incarcerated  is\tto  a  great  extent
\ncurtailed by  punitive detention.  It is  even curtailed  in
\npreventive detention.  The liberty  to\tmove,  mix,  mingle,
\ntalk, share  company  with  co-prisoners,  if  substantially
\ncurtailed, would  be violative\tof  article  21\t unless\t the
\ncurtailment has\t the backing  of  law.\tSub-s.(2)  of  s..30
\nestablishes the\t procedure by  which it can be curtailed but
\nit must\t be read  subject to  our interpretation.  The\tword
\n“law” in  the expression  “procedure established  by law” in
\narticle 21  has been  interpreted to mean in Maneka Gandhi’s
\ncase (supra)  that the law must be right, just and fair, not
\narbitrary, fanciful  or oppressive. Otherwise it would be no
\nprocedure at all and the requirement of article 21 would not
\nbe satisfied.  If it  is arbitrary  it would be violative of
\narticle 14. Once s. 30(2) is read
\n down  in the  manner in  which we  have done, its obnoxious
\nelement is erased and it cannot be said that it is arbitrary
\nor that there is deprivation of personal liberty without the
\nauthority of law.\n<\/p>\n
      Incidentally it was also urged that the classification
\nenvisaged by  s. 30  of prisoner  under sentence of death is
\nirrational  and\t it  is\t not  based  upon  any\tintelligible
\ndifferentia which  would distinguish  persons of  one  class
\nfrom others left out and the basis of differentiation
\n     (1) 11971] I SCR 512,
\n     (2) [1978] I SCC 248.\n<\/p>\n
505<\/span><\/p>\n
has no\tnexus with  the avowed policy and object of the Act.
\nThere is  no warrant  for  an  implicit\t belief\t that  every
\nprisoner under\tsentence of  death is necessarily violent or
\ndangerous which\t requires his  segregation. Experience shows
\nthat they become morose and docile and are inclined to spend
\ntheir last  few\t days  on  earth  in  communion\t with  their
\nCreator. It  was, therefore,  said that\t to proceed  on\t the
\nassumption that\t every prisoner\t under sentence\t of death is
\nnecessarily of\tviolent propensities  and dangerous  to\t the
\ncommunity   of\t co-prisoners\tis   unwarranted   and\t the
\nclassification on the basis of sentence does not provide any
\nintelligible  differentia.   The  rationale  underlying\t the
\nprovision is  that the\tvery  nature  of  the  position\t and
\npredicament of prisoner under sentence of death as construed
\nby us,\tlead to\t a certain  situation and  present  problems
\npeculiar  to   such  persons  and  warrants  their  separate
\nclassification\tand   treatment\t as   a\t measure   of\tjail
\nadministration and  prison  discipline.\t It  can  hardly  be
\nquestioned that\t Prisoners under  sentence of  death form  a
\nseparate class\tand their  separate classification has to be
\nrecognised. In England a prisoner under sentence of death is
\nseparately classified  as would\t appear from para 1151, Vol.
\n30, Halsbury’s\tLaws of England, 3rd Edition. He is searched
\non reception  and every\t article removed  which the governor
\nthinks it  dangerous or inexpedient to leave with him. He is
\nconfined in  a separate\t cell, kept  apart  from  all  other
\nprisoners and is not required to work. Visits are allowed by
\nrelatives, friends  and legal  advisers\t whom  the  prisoner
\nwishes to  see etc.  It is true that there is no warrant for
\nthe inference  that a  prisoner under  sentence of  death is
\nnecessarily of violent\tpropensities  or  dangerous  to\t co-
\nprisoners.  Approaching\t  the  matter  from  that  angle  we
\ninterpreted sub-s. (2) of s. 30 to mean that he is not to be
\ncompletely segregated  except in  extreme cases of necessity
\nwhich must be specifically made out and that too after he in
\nthe true  sense of  the expression  becomes a prisoner under
\nsentence of  death. Classification according to sentence for
\nthe security  purposes is  certainly valid and therefore, s.
\n30(2) does  not violate\t article 14.  Similarly, in the view
\nwhich we  have taken  of the  requirements of  s. 30(2), the
\nrestriction does  not  appear  to  be  unreasonable.  It  is
\nimposed keeping\t in view  the safety of the prisoner and the
\nprison security\t and it\t is not violative of article 19. The
\nchallenge in either case must fail.\n<\/p>\n
      Charles Sobhraj, a foreigner, was arrested on 6th July
\n1976 and  on 15th  July 1976  he was served with an order of
\ndetention under\t s. 3  of the  Maintenance of  Security Act,
\n1971. his  allegation is  that ever  since he  was lodged in
\nTihar Central Jail he was put in bar fetters and the fetters
\nwere retained continuously for 24 hours a
\n506<\/span>
\nday and\t the uncontroverted fact is that since his detention
\nhe was\tput in\tbar fetters till this Court made an order on
\n24th February  1978 recording  an assurance on behalf of the
\nrespondents  given   by\t the  learned  Additional  Solicitor
\nGeneral that  the bar fetters shall be removed forthwith for
\na period  of 14 days except when the prisoner was taken from
\nthe  prison  to\t the  Court  and  back\tand  also  when\t the
\npetitioner was\ttaken for the purpose or an interview but if
\nthe interview  is in  the cell\tno such bar fetters shall be
\nput. By\t subsequent orders  this order\tdated 24th  February
\n1978 was  continued. Thus,  from July  1976 to February 1978
\nthe petitioner\twas kept in bar fetters. In the affidavit in
\nreply on  behalf of  respondent no. 3, the Superintendent of
\nTihar Central Jail dated 5th September 1977, gory details of
\nthe criminal  activities  of  the  petitioner  are  set\t out
\nsimultaneously saying  that the\t petitioner is\tof extremely
\ndesperate and  dangerous nature\t whose presence is needed by
\nInterpol and, therefore, it has been considered necessary to
\nkeep him  under fetters\t while in  Jail. While examining the
\nconstitutional validity of s. 56\n<\/p>\n
 l)  we have not allowed our vision to be coloured, based or
\nabridged by  these averments  as in our opinion for the main
\ncontention  raised   by\t the  petitioner  they\tmay  not  be
\nrelevant.\n<\/p>\n
       The petitioner contends that s. 56 of the Prisons Act
\nso far\tas it  confers unguided,  uncanalised and  arbitrary
\npowers on  the Superintendent to confine a prisoner in irons
\nis ultra  vires articles  14 and  21,  the  challenge  under
\narticle 19 being not open to him. Section 56 reads as under:\n<\/p>\n
\t     “56.  Whenever the\t Superintendent considers it
\n\t  necessary (with  reference either  to the state of
\n\t  the prison or the  character of the prisoners) for
\n\t  the safe custody of any prisoners that they should
\n\t  be confined  in irons,  he may,  subject  to\tsuch
\n\t  rules and  instructions as may be laid down by the
\n\t  Inspector General  with the  sanction of the State
\n\t  Gov -ernment so confine them”.<\/p><\/blockquote>\n
       Sub-para\t (3) of\t para 399  of the Punjab Jail Manual
\nprovides
\n   that special\t precautions should  be taken  for the\tsafe
\ncustody of  dangerous prisoners\t which inter  alia  includes
\nputting him  under fetters, if necessary. The safeguard that
\nit provides is that if the Superintendent decides to put him
\nin fetters  he\tmust  record  special  reasons\tfor  putting
\nfetters in  the Journal\t and it\t must also  be noted  in the
\nhistory ticket\tof the prisoner. Warders are under a duty to
\nsatisfy themselves  that the  fetters are  intact. Para\t 43S
\nprovides that  fetters imposed for security shall be removed
\nby the\tSuperintendent as soon as he is of opinion that this
\ncan be done with safety. Para
\n507<\/span>
\n69 in  Chapter VI  provides that  the  Superintendent  shall
\ndischarge A  his duties\t subject to  the control of, and all
\norders passed  by him  shall be\t subject to  revision by the
\nInspector General.\n<\/p>\n
     Undoubtedly, the limited locomotion that a prisoner may
\nenjoy while  being incarcerated\t is seriously  curtailed  by
\nbeing put in bar fetters. In order to enable us to know what
\na bar  fetter is  and how,  when  a  prisoner  is  subjected
\nthereto, his  locomotion is severely curtailed, a bar fetter
\nwas shown  to us  and its use was demonstrated in the Court.
\nIt may be mentioned that the iron rings which are put on the
\nankles arc  welded. Therefore,\twhen the  fetter  is  to  be
\nremoved, the  rings have  to be broken open. Then there is a
\nhorizontal bar\twhich keeps the two legs apart and there are
\ntwo verticle  bars which  are hooked to the waist-belt which
\nmakes. even  a slow  motion walking  highly inconvenient. If
\nalong with this, handcuffs are put on the prisoner, his life
\nto put\tit mildly, would be intolerable. the bar fetters are
\nkept day  and night  even  when\t the  prisoner\tis  kept  in
\ncellular confinement. It needs not much of an elaboration to
\ncome  to   the\tconclusion   that  bar\tfetters\t to  a\tvery
\nconsiderable  extent   curtail,\t if   not   wholly   deprive
\nlocomotion which  is one  of the facets of personal liberty.
\nAnd this  is being  done as  a safety measure with a view to
\npreventing the prisoner from walking as freely- as others or
\nfrom running  away. It\twas tartly  said that\tthe prisoner
\nhave no\t fundamental freedom  to escape\t from lawful custody
\nand, therefore,\t they cannot  complain against precautionary
\nmeasures which impede escape from the prison.\n<\/p>\n
       Article\t21 forbids  deprivation of  personal liberty
\nexcept in  accordance with  the procedure established by law
\nand curtailment of personal; liberty to such an extent as to
\nbe a  negation\tof  it\twould  constitute  deprivation.\t Bar
\nfetters make  a\t serious  inroad  on  the  limited  personal
\nliberty which a prisoner is left with and, therefore, before
\nsuch erosion  can be justified it must have the authority of
\nlaw. At\t one stage  it was felt that the provision contained
\nin para\t 399(3) world  provide the  sanction of\t law for the
\npurpose of  article 21. Section 56 confers power for issuing
\ninstructions by\t the Inspector\tGeneral of  Prison with\t the
\nsanction of  the State\tGovernment and\tsection\t 59  confers
\npower on  the State  Government to  make rules\twhich  would
\ninclude the rule regulating confinement in fetters. A deeper
\nprobe  into  the  sanction  behind  enactment  of  para\t 399
\nultimately led\tthe learned  Additional Solicitor General to
\nmake the  statement on\tbehalf of  the respondents that para
\n399 of\tthe Punjab  Jail Manual\t is  not  a  statutory\trule
\nreferable either  to s.\t 59 or\t60 of the Prisons Act, 1894.
\nLearned counsel\t stated that despite all efforts respondents
\nwere unable to obtain the original or even a copy of the 16-
\n526SCT \/78
\n508<\/span>
\nsanction of  the local\tGovernment referred  to in s. 56. We
\nmust, therefore,  conclude that\t the provision\tcontained in
\npara 399 is not statutory and has not the authority of law.
\n\tThe  question,\ttherefore,  is,\t whether  the  power
\nconferred on  the Superintendent  by s.\t 56 is\tunguided and
\nuncanalised in\tthe sense  that the  Superintendent can pick
\nand choose a prisoner arbitrarily for being subjected to bar
\nfetters for  such length  of time  as he thinks fit, and for
\nany purpose he considers desirable, punitive or otherwise.
\n\tA  bare\t perusal  of  s.  56  would  show  that\t the
\nSuperintendent may put a prisoner in bar fetters (i) when he
\nconsiders it  necessary; (i;)  with reference  either to the
\nstate of  the prison or character cf the prisoner; and (iii)
\nfor the\t safe custody  of the  prisoner. No we would exclude
\nfrom consideration  the state  of prison requirement because
\nthere is  no material  placed on  record to  show  that\t the
\npetitioner was\tput in\tbar fetters  in view of the physical
\nstate of  the Tihar Central Jail. But the Superintendent has
\nfirst to  be satisfied\tabout n\t the necessity\tof putting a
\nprisoner in bar fetters and “neccssity” is certainly opposed
\nto mere\t expediency. The  necessity for putting the prisoner
\nin bar\tfetters would  have to be examined in the context of
\nthe character  of the  prisoner and  the safe custody of the
\nprisoner. The  safe custody  of the  prisoner may comprehend
\nboth the  after custody\t of the prisoner who ii being put in
\nbar fetters  and of  his companions  in the  prison. We must
\nhere. bear  in mind  that the  Superintendent is required to
\nfully record  in his  Journal and  in the prisoner’s history
\nticket the  reasons for putting the prisoner in bar fetters.
\nWhen it\t is said  that the  power  conferred  by  s.  56  is
\nuncanalised and\t unguided it is to be borne in mind that the
\nchallenge\t  has\t      to\t be\t    examined
\nn the  context of  the subject\tmatter of  the\tlegislation,
\nviz., prisons,\tand the\t subject matter itself in some cases
\nprovides the  guidelines. In  this context we may profitably
\nrefer to Procuniers case (supra). It says . ”
\n\t “The case at hand arises in the context of prisons.
\n\t  O,.. of the primary functions of government is the
\n\t  preservation\t     of\t  societal   order   through
\n\t  enforcement  of   the\t  criminal   law   and\t the
\n\t  maintenance of  penal institutions is an essential
\n\t  part of  that task,  The identifiable governmental
\n\t  interests  at\t  state\t in   this  task   are\t the
\n\t  preservation of internal order and discipline, the
\n\t  maintenance  of   institutional  security  against
\n\t  escape   or\t unauthorised\tentry,\t  and\t the
\n\t  rehabilitation of the prisoners”.\n<\/p>\n
I  Two\t basic\tconsiderations\tin  the\t context  of  prison
\ndiscipline are\tthe security of the prison and safety of the
\nprisoner.  These  being\t the  relevant\tconsiderations,\t the
\nnecessity or putting any particular
\n509<\/span>
\nprisoner in  bar fetters  must be relatable to them. We are,
\ntherefore, of  A the  opinion that the power under s. 56 can
\nbe exercised  only for\treasons and considerations which are
\ngermane to  the objective of the statute, viz., safe custody
\nof the prisoner, which takes in considerations regarding the
\ncharacter  and\tpropensities  of  the  prisoner.  These\t and
\nsimilar considerations\tbear  direct  nexus  with  the\tsafe
\ncustody\t of   prisoners\t as  they  are\taimed  primarily  at
\npreventing their  escape. The determination of the necessity
\nto put\ta prisoner  in bar  fetters has\t to  be\t made  after
\napplication  of\t  mind\t to   the   peculiar   and   special
\ncharacteristics of  each individual prisoner. The nature and
\nlength of  sentence or\tthe magnitude of the crime committed
\nby  the\t prisoner  are\tnot  relevant  for  the\t purpose  of
\ndetermining that question.\n<\/p>\n
       Again, the power under s. 56 is not unbridled because
\nin the\tcontext of  para 399 special precautions as required
\nby sub-para  3 have  to be  taken for  the safe\t custody  of
\ndangerous prisoners,  irrespective of  the fact whether they
\nare awaiting  trial or\thave been convicted. lt is difficult
\nto define  with precision  what attributes of a prisoner can
\njustify his  classification as\t‘dangerous. But,  these\t are
\npractical problems  which have to be sorted out on practical
\nand pragmatic  considerations by those charged with the duty
\nof administering jails.\n<\/p>\n
       Let  us look at the conspectus of safeguards that are
\nadumbrated In  s. 56 itself and in para 399 which though not
\nstatutory are  binding, on the Superintendent. Determination
\nof necessity  to put  a prisoner  in  bar  fetters  must  be
\nrelatable to  the character  of the  prisoner., and the safe
\ncustody of  the prisoner. That can only be done after taking
\ninto consideration  the peculiar. and special characteristic
\nof each individual prisoner. No ordinary routine reasons can
\nbe sufficient.\tthe reasons have to be fully recorded in the
\nSuperintendents Journal\t and the  prisoner’s history ticket.
\nDuty to\t give reasons  which have,  at last to be plausible,
\nwill  narrow   the  discretionary  power  conferred  on\t the
\nSuperintendent.\t It  may  be  made  clear  that\t as  far  as
\nposrsible these\t reasons must  be recorded in the prisoner`s
\nhistory\t  ticket    in\t the   language\t  intelligible\t and
\nunderstandable by  the prisoner\t so  as\t to  make  the\tnext
\nsafeguard effective  viz. revision petition under para 69 to
\nthe Inspector  General of  Prisons. A  further obligation on
\nthe Superintendent  is that  the  fetters  imposed  for\t the
\nsecurity shall\tbe rcmoved  by the Superintendent as soon as
\nhe is  of the  opinion that  this can be done with safety as
\nrequired by  para 435.\tIn order  to give full effect to the
\nrequirement  of\t para  435,  the  Superintendent  will\thave
\nhimself to  review the\tcase of\t the prisoner at regular and
\nfrequent intervals  for ascertaining whether the fetters can
\nbe removed,  consistently with the requirement of safety. It
\nthus becomes clear that there
\n510<\/span>
\nare sufficient guidelines in s. 56 which contain a number of
\nsafe.  guards\tagainst\t misuse\t  of  bar   fetters  by\t the
\nSuperintendent.\t Such  circumscribed  peripheral  discretion
\nwith duty  to give reasons which are revisable by the higher
\nauthority cannot  be described\tas arbitrary  so  as  to  be
\nviolative of article 14.\n<\/p>\n
       It  was submitted  that\tin  view  of  the  provision
\ncontained in  paras 426 and 427 a prisoner may be put in bar
\nfetters, irrespective  of the  requirement of  prison safety
\nand uninfluenced  by the prisoner’s character, on irrelevant
\nand extraneous\tconsiderations such as length of sentence or
\nthe number  of convictions. The only relevant considerations
\nfor putting  a prisoner in bar fetters or for containing him
\nin irons  are the character, antecedents and propensities of
\nthe prisoner. The nature or length of sentence or the number
\nof convictions\tor the\tgruesome character  of the crime the
\nprisoner is  alleged to have committed are not by themselves
\nrelevant  and\tcan  not  enter\t the  determination  of\t the
\nSuperintendent except  to the  extent to  which they hear on
\nthe question of the safety and safe custody of the prisoner.\n<\/p>\n
       The  legislative policy\tbehind\tenacting  s.  56  as
\ninterpreted  by\t  use  is  clear  and  discernible  and\t the
\nguidelines prescribed  by` the\tsection have  the effect  of
\nlimiting the  application of  the provision  to a particular
\ncategory of  persons. In  such a  situation  the  discretion
\ncircumscribed  by  the\trequirement  vested  in\t the  prison
\nauthority charged  with the  duty  to  manage  the  internal
\naffairs of the prison for the selective application of s. 56
\nwould certainly not infringe article 14.\n<\/p>\n
       It  was said  that continuously keeping a prisoner in
\nfetters day  and night\treduces the  prisoner from  a human-
\nbeing to  an animal, and that this treatment is so cruel and
\nunusual that  the use  of bar  fetters is  anethema  to\t the
\nspirit of  the Constitution.  Now, we  do not  have  in\t our
\nConstitution any  provision like the VIIIth Amendment of the
\nU.S. Constitution  forbidding the  State from imposing cruel
\nand unusual  punishment as was pointed out by a Constitution
\nBench of  this Court  in Jagmohan  Singh v. State of U.P.<\/a>(1)
\nBut we cannot be oblivious to the fact that the treatment of
\na human being which offends human dignity, imposes avoidable
\ntorture and  reduces the  man to  the level of a beast would
\ncertainly be  arbitrary and  can be questioned under article\n<\/p>\n
14. Now,  putting bar  fetters for  an unusually long period
\nwithout due  regard for\t the safety  of the prisoner and the
\nsecurity of  the prison\t would certainly  be  not  justified
\nunder s.  56. All  these so  when it  was found in this case
\nthat medical  opinion suggested\t removal of  bar fetters and
\nyet it\tis alleged  that they  were retained thereafter. One
\ncannot subscribe to the view canvassed with
\n     (1) [1973] 2 SCR 541.\n<\/p>\n
511<\/span><\/p>\n
some vigour that escape from jail cannot be prevented except
\nby A  putting the prisoner continuously in bar fetters. That
\nwill be\t a sad\tcommentary on  the prison administration and
\nthe administrators. Therefore, s. 56 does not permit the use
\nof bar\tfetters for an unusually long period, day and night,
\nand that  too when  the prisoner is confined in secure cells
\nfrom where  escape is  somewhat inconceivable.\tNow that bar
\nfetters of  the petitioner  have been  removed\tin  February
\n1978, the question of re-imposing them would not arise until
\nand  unless   the  requirement\therein\tdelineated  and\t the
\nsafeguards herein provided are observed.\n<\/p>\n
       In the result, on the interpretation put by us, s. 56
\nis not\tviolative of  Article 14  or 21. The challenge must,
\ntherefore, fail.\n<\/p>\n
       Both the petitions are accordingly disposed of in the
\nlight of the observations made in the judgment.\n<\/p>\n
     We share the concern and anxiety of our learned Brother
\nKrishna Iyer,  J. for  reorientation of\t the outlook towards
\nprisoners and the need to take early and effective steps for
\nprison reforms.\t Jail Manuals  are largely a hangover of the
\npast, still retailing anachronistic provisions like whipping
\nand the ban on the use of the Gandhi cap. Barbaric treatment
\nof a  prisoner from  the point\tof view of his rehablitation
\nand acceptance\tand retention  in the  mainstream of  social
\nlife, becomes counterproductive in the long run.\n<\/p>\n
       Justice\tKrishna\t Iyer  has  delivered  an  elaborate
\njudgement which\t deals\twith  the  important  issues  raised
\nbefore us  at great  length and with great care and concern.
\nWe have given a separate opinion, not because we differ with
\nhim on\tfundamentals, but because we thought it necessary to
\nexpress our  views  on\tcertain\t aspects  of  the  questions
\ncanvassed before us.\n<\/p>\n
N.V.K\t\t\t\t\tPetitions dismissed.\n512<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sunil Batra Etc vs Delhi Administration And Ors. Etc on 30 August, 1978 Equivalent citations: 1978 AIR 1675, 1979 SCR (1) 392 Author: V Krishnaiyer Bench: Chandrachud, Y.V. (Cj), Krishnaiyer, V.R., Fazalali, Syed Murtaza, Shingal, P.N., Desai, D.A. PETITIONER: SUNIL BATRA ETC. Vs. RESPONDENT: DELHI ADMINISTRATION AND ORS. ETC. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-152155","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSunil Batra Etc vs Delhi Administration And Ors. 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