ition No 5287 of 1980
Under Article 32 of the Constitution
P H Parekh Amicus Curiae for the Petitioner
B D Sharma for the Respondent
The Judgment of the Court was delivered by KRISHNA IYER J
The moral of this case is poignant So long as an iron curtain divides the law set by the Constitution and lit by the Supreme Court from the minions of the State so long shall this Court s writ remain a mystic myth and harmless half truth making law in the books and law in action distant neighbours
This shall not be
The sombre scenario unfurled by this habeas corpus proceeding begins with a telegram dated 3 10 1980 on behalf of the prisoners the petitioners to one of us complaining manu brevi of insufferable illegal solitary confinement punctuated by periods of iron fetters a lot shared by two others with him in Jaipur Central Jail
This trauma laden message reads Convict Kishore Singh Ravinder Dev Pareek Surjeet Singh Central Jail Jaipur confined in cells with fetters illegally unconstitutionally more than eight months habeas corpus writ prayed order enquiry and save 
Daulat Singh This grievance of the prisoners in twisted gyves  triggered off judicial action with telegraphic speed as it were and the Bench directed that the prisoners be forthwith liberated from solitary confinement and freed from fetters in terms of the law laid down by this Court in Sunil Batra s case
That order dated October 6 1980 reads  We appoint Shri P H Parekh as amicus curiae 997 If the petitioner is in solitary confinement he will be released from solitary confinement forthwith in the light of the decision of this Court in Sunil Batra s case
The Superintendent of the Central Jail concerned will report to this Court on 21st October 1980 the number of cases with particulars of persons in solitary confinement in that prison
He will appear in person on that date
Notice to Shri B D Sharma Standing Counsel for the State of Rajasthan
Counsel s services under our litigative process are a necessary facility for remedial justice and so we took this step of appointing Shri P H Parekh as amount curiae
The whole bar if it has a larger dedication is amicus curiae because no cause should be dearer to a people oriented justice centred profession despite its esoteric genes elitist strands and lucrative slant than to be a decisive actor in the democracy of judicial remedies so that no man be he poor man or prisoner dissenter delinquent eccentric or extremist shall suffer what the law forbids
In this Court the members of the bar whenever called up by the bench have kept the door ajar and unfailingly helped the Court as free janitors of justice and free forensic functionaries at the service of any one aggrieved by injustice and seeking legal justice
After all the great proposition that inspires the calling of justicing by the Bench and the Bar alike is best expressed by Dr Martin Luther King Jr in his letter from Alabama Prison  Injustice anywhere is a threat to justice everywhere
We are caught in an inescapable network of mutuality tied in a single garment of destiny
Whatever affects one directly affects all indirectly
We must even here record our appreciation of Shri Parekh s passion for the prisoners  cause coupled with pains taking presentation of the grievances they had
So too Shri B D Sharma s commitment to jail justice beyond jailor s injustice ie his client s brief
In retrospect we feel it was right that we took quick action to liberate the three prisoners from their callously lonely barbarously fettered solitary custody
Justice must be instant and it has been wisely said Caution caution sir  It is nothing but The word of cowardice  Where human bondage and personal torture are involved to wait is to defeat
In personal liberty jurisprudence this court has not tarried or teetered and shall not
The reason is clear
The writ must right the wrong forthwith or must stand self condemned as make believe
Where justice is in jeopardy 998 or freedom is in fetters the court is not non aligned and acts with sensitive speed
Time is of the essence where otherwise torture is the consequence
The order of this court dated 6 10 1980 brought counsel on both sides into the scene set free the prisoners from the hateful solitary  and summoned before us the presence of the Superintendent dent of the Prison on 21 10 1980 to answer for his breach of the fundamental law laid down in Sunil Batra On that day ie 21 10 1980 after a brief hearing we directed The respondent will file a detailed affidavit giving particulars and also produce the proceedings relating to the enquiry held resulting in solitary confinement
The prisoner will be produced on 24 10 1980 in this Court and Shri Parekh will be allowed to interview him Pursuant to this order the Superintendent of the Jail submitted his explanation for what in the light of the Batra supra ratio is unlaw
We will presently consider the conduct of the delinquent jailor but the more disturbing episode brought to our painful notice was the violence allegedly used by the escort police on the person of one prisoner Surjeet Singh while in transit and testified to by the visible wounds counsel found
Shri Parekh shocked us into shame by seeking lo show us the physical injuries inflicted
If the writ of this court brings a person from the Jaipur Prison to judicial presence can it be that a little set of constables in custody during transit violate with brazen brutality and criminal immunity the person of their charges and the hands of the law hang limp in the face of such lawlessness  Justice without power is inefficient power without justice is tyranny
Justice and power must therefore be brought together so that whatever is just may be powerful and what ever is powerful may be just Blaise Pascal So we ordered We are very disturbed to be told by Shri Parekh amicus curiae that one of the prisoners Surjeet Singh while being taken to this Court was manhandled severely
Counsel says that there are bruises and other signs of injuries on his person
The Superintendent of the Jail who is present in Court will take special care to see that this prisoner is taken to Jaipur safely
The Superintendent will take the prisoner Surjeet Singh to Ram Manohar Lohia Hospital today for examination of the prisoner 999 and also for proper treatment which may be suggested by the Doctor in the Hospital
In the light of the medical report the Superintendent will lay first information before the Police Station concerned against the constables who are the escorting police
It will be open to the prisoner himself to lay a complaint and facilities will be afforded by the prison authorities
We make it clear that the investigation should not have the slightest taint of departmental inclination to help a policeman if there is evidence of delinquency
A report will be put into this Court about what has been done by 31 10 1980
 Thereafter the medical report of which we have been apprised by Shri Parekh the report against the constables concerned reported Jo us by Shri Sharma are taking their course
We do not make any observations thereon as that is the subject of a separate enquiry
Even so no police life style which relies more on fists than on writs on torture more than on culture can control crime because means boomerang on ends and re fuel the vice which it seeks to extinguish
Secondly the State must re educate the constabulary out of their sadistic arts and inculcate a respect for the human person a process which must begin more by example than by precept if the lower rungs are really to emulate
Thirdly if any of these escort policemen are found to have misconducted themselves no sense of police solidarity or in service comity should induce the authorities to hide the crime
Condign action quickly taken is surer guarantee of community credence than bruiting about that all is well with the police the critics are always in the wrong 
Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights
We believe the basic pathology which makes police cruelty possible will receive Government s serious attention
Who will police the police What psychic stress and social deprivation of the constabulary s lifestyle need corrective healings  When will wits not fists  become a police kit  When will the roots of third degree  be plucked out and the fresh shoots of humanist respect put out We make these observations in the humane hope that article 21 with its profound concern for life and limb will become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article
This Court has frowned upon handcuffs save in the rarest of rare  cases where security will be seriously jeopardized unless iron restraint is necessarily clamped on the prisoner
We are heartened to know that there are States where escorting is done with civility 1000 and humanity
For instance para 443 of the Kerala Police Manual
1970 Vol
II reads  443
1 The use of hand cuffs or ropes causes humiliation to the person subjected to the restraint and is contrary to the modern policy regarding the treatment of offenders
Therefore handcuffing andor binding shall be restricted to cases where a person in custody is of a desperate character or where there are reasons to believe that he will use violence or attempt to escape or where there are other similar reasons necessitating such a step
We mention this here since policemen who beat those in their custody may with easy conscience handcuff and footcuff their charges a course contrary to article 21
The harrowing facts in substantial measure emerge even from the statement of the case by the State
The petitioners have admittedly been kept in separate solitary rooms for long periods from 8 months to 11 months spells long enough to be regarded as barbarous if Sunil Batra s supra is to prevail
Admittedly cross bar fetters were put in Kishore Singh for several days and on Surjeet Singh for 30 days counsel for the petitioner has rightly submitted that flimsy grounds like loitering in the prison behaving insolently and in an uncivilised manner tearing off his history ticket were the foundation for the torturesome treatment of solitary confinement and cross bar fetters
We have read the affidavit of the Superintendent and feel utterly unsatisfied that the mandate in Sunil Batra supra has been obeyed
This ease and the uncivilised orders of cellular solitude and traumatic fetters compels us to repeat what we stated earlier in Sunil Batra 11
The essence of the matter is that in our era of human rights consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability
We ideologically accept the words of Will Durant It is time for all good men to come to the aid of their party whose name is civilization
Likewise we endorse as part of our constitutional thought what the British Government s White Paper 3 titled People in Prison stated with telling effect 1001 A society that believes in the worth of individual beings can have the quality of its belief judged at least in part by the quality of its prison and probation services and of the resources made available to them
We do not accept the Superintendent s version that he had given a hearing to the prisoners before punishing them It is a self defensive pretence and perhaps the only veracious alibis available to him are that the vintage Prison Rules Rule lf Part 16 and Rule 79 of the Rajasthan Prison Rules 1951 support the administrative absolutism of the prison boss and more to the point as counsel Shri Sharma candidly stated
The Superintendent was innocent  of the benign prescriptions in Sunil Batra 11 decision1
Indeed Shri Sharma convincingly persuaded us to take a lenient view of the delinquency of the Superintendent by emphasising that he had taken the Prison Superintendent through the effective exercise of reading and explaining the Batra rulings and assuring us that no more of solitary confinement disguised as keeping in separate cell and imposition of fetters will take place save in the rarest of rare cases and with strict adherence to the procedural safeguards contained in the decisions of this Court relating to the punishment of prisoners
We accept the bona fides of the prison official but emphasise that violation of article 21 as interpreted by this Court in its recent decisions if repeated will be visited with more serious consequences
Even so we will refer to the scripture relied on as absolvent of the sin complained of and reiterate Tersely the mandatory prescriptions and prescriptions implicit in article 21 and elucidated by case law
Rules 79 and 1f of Part VI of the Rajasthan Prisons Rules may be extracted here 79 Special Precautions for security The Superintendent shall use his discretion in ordering such special precautions as may be necessary to be taken for the security of any important prisoner whether he has received any warning from the Magistrate or not as the Superintendent is the sole Judge of what measures are necessary for the safe custody of the prisoners he shall be held responsible for seeing that precautions taken are reasonably sufficient for the purpose
1 f Cells may be used for the confinement of convicted criminal prisoners who are in the opinion of the Superintendent likely to exercise a bad influence over other prisoners if kept in their association
1002 These Rules were framed under section 46 of the Prisons Act which also may be read at this stage 46
The Superintendent may examine any person touching any such offence and determine thereupon and punish such offence by  6 imposition of handcuffs of such pattern and weight in such manner and for such period as may be prescribed by rules made by the Governor General in Council 7 imposition of fetters of such pattern and weight in such manner and for such period as may be prescribed by the rules made by Governor General in Council 8 separate confinement for any period not exceeding three months Explanation
Separate confinement means such confinement with or without labour as secludes a prisoner from communication with but not from sight of other prisoners and allows him not less than one hour s exercise per diem and to have his meals in association with one or more other prisoners    9 Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with but not from sight of other prisoners We cannot agree that either the Section or the Rules can be read in the absolutist expansionism the prison authorities would like us to read
That would virtually mean that prisoners are non persons to be dealt with at the mercy of the prison echelons
This country has no totalitarian territory even within the walled world we call prison
Articles 14 19 and 21 operate within the prisons in the manner explained
in Sunil Batra I supra by a Constitution Bench of this Court
It is significant that the two opinions given separately in that judgment agree in spirit and substance in reasoning and conclusions
Batra in that case was stated to be in a separate confinement and not solitary cell
An identical plea has been put forward here too
For the reasons given in Sunil Batra s case we must overrule the extenuatory submission that a separate cell is different from solitary confinement
The petitioners will therefore be entitled Jo move within the confines of the prison like others undergoing rigorous imprisonment
If special restrictions 1003 of a punitive or harsh character have to be imposed for convincing security reasons it is necessary to comply with natural justice as indicated in Sunil Batra case
Moreover there must be an appeal not from Caeser to Caeser but from a prison authority to a judicial organ when such treatment is meted out
Sobraj in the same case Sunil Batra supra was kept in fetters and reasons more persuasive than in the present case were put forward in defence
This Court however directed such fetters shall forthwith be removed
Of course we do not place any absolute ban but insist that only in extreme cases of compelling necessity for security of other prisoners or against escape can such fettering be resorted to
Human dignity is a dear value of our Constitution not to be bartered away for mere apprehensions entertained by jail officials
The latter decision of this Court in Sunil Batra 11 clothes with flesh and blood the principles laid down in Sunil Batra I supra
In Rakesh Kaushik the position has advanced further and concrete directions have been issued which we extract here because the law laid down by this Court applies not to one State or the other but to all national institutions in the country 2 He will further enquire with specific reference to the charges of personal assault and compulsion for collaboration in canteen swindle and other vices made by the prisoner against the Superintendent and the Dy
Superintendent
3 He will go into the question of the directives issued in the concluding portion of Sunil Batra s case WP 100979 with a view to ascertain whether these directions have been substantially complied with and to the extent there is shortfall or default whether there is any reasonable explanation therefor
4 Being a Visitor of the jail it is part of his visitatorial functions for the Sessions Judge to acquaint himself with the condition of tension vice and violence and prisoners  grievances   
We hold that the jail authorities in Rajasthan will comply with the principles so laid down
We read down section 46 and Rules 1f and 79 of the Rajasthan Prison Rules and sustain them in this limited fashion 1004 We direct the Respondents to act accordingly
Further we remind that the Sessions Judges in the State of Rajasthan to remember the rulings of this Court in Sunil Batra I  11 and Rakesh Kaushik supra and act in such manner that judicial authority over sentences and the conditions of their incarceration are not eroded by judicial in action
We find that the old rules and circulars and instructions issued under the Prisons Act are read incongruously with the Constitution
especially article 21 and interpretation put upon it by this Court
therefore direct the State Government of Rajasthan and indeed all the other State Governments in the country to convert the rulings of this Court bearing on Prison Administration into rules and instructions forthwith so that violation of the prisoners  freedoms can be avoided and habeas corpus litigation may not proliferate
After all human rights are as much cherished by the State as by the citizen
Since the petitioners have been released from separate confinement and from cross bar fetters and since counsel for the State has assured us that nothing will be done in violation of the propositions set out in the catena of cases of this court Sunil Batra I  11 and Rakesh Kaushik supra  we deem it unnecessary to give any further directives pursuant to this habeas corpus application
NVK Petition allowed


Summary:
One of the petitioners in a telegram to one of the Judges of this Court complained of insufferable illegal solitary confinement
He also complained that he was kept in iron fetters alongwith the other two petitioners
By an order of this Court the petitioners were directed to be set free from solitary confinement and brought before the Court
When the prisoners were brought before the Court they alleged that while in transit violence had been used by the escort police on the person of one of the petitioners resulting in deep wounds on his person
The Superintendent of Prisons who was present in the Court was directed to take special care of the prisoner after giving him proper medical treatment
Allowing the petition  HELD 1
Article 21 would become dysfunctional unless the agencies of the law in the police and prison establishments have sympathy for the humanist creed of that Article
The State must re educate the police and  F inculcate a respect for the human person
If any of the escort were found to have misconducted themselves they should be given condign punishment
999G D E 2
By keeping the prisoners in separate solitary rooms for long periods ranging from 8 to 11 months putting cross bar fetters for several days on the flimsy grounds of loitering in the prison behaving insolently and in and uncivilised manner the prison authorities have acted in utter disregard of the mandate of this Court in Sunil Batra
1000D E 3
The Jail Superintendent s version that he had given a hearing to the prisoners before punishing them cannot be believed
Neither section 46 of the Prisons Act nor Rule 79 of the Rajasthan Prison Rules can be read in the absolutist expansionism the Prison Authorities would like them to be read
That would virtually mean that prisoners are not persons to be dealt with at the mercy of the prison echelons
Articles 14 19 and 21 operate within the prisons in the manner explained in Sunil Batra
A separate Cell is not different from solitary confinement
1001 1002G H i If special restrictions of a punitive or harsh character have been imposed for convincing security reasons it is necessary to comply with natural justice as indicated in Sunil Batra
There must be an appeal from a prison authority to a judicial organ when such treatment is meted out
1003A 996 ii Section 46 of the Prisons Act and Rules 1f and 79 of the Rajasthan Prison Rules are valid subject to the directions given by this Court in Rakesh Kaushik
1003G iii The Sessions Judges in the State of Rajasthan should remember the rulings of this Court in Sunil Batra 1 and 11 and Rakesh Kaushik and act in such manner that judicial authority over sentences and the conditions of their incarceration are not eroded by judicial in action
1004A Sunil Batra vs Delhi Administration  Sunil Batra v Delhi Administration   Rakesh Kaushik vs B L Vig Superintendents Central jail New Delhi  applied