ition No 1009 of 1979
Under Article 32 of the Constitution
Dr Y section Chitale and Mukul Mudgal for the Petitioner
Soli 1
Sorabjee Solicitor General of India and R N Sachthey for the Respondent
562 The Judgment of V R Krishna Iyer and O Chinnappa Reddy JJ was delivered by Krishna Iyer J R section Pathak J gave a separate opinion
KRISHNA IYER J This writ petition originated epistolary fashion in a letter by a prisoner Batra to a Judge of this  Court one of us complaining of a brutal assault by a Head Warder on another prisoner Prem Chand
Forms were forsaken since freedom was at stake and the letter was posted on the Bench to be metamorphosed into a habeas proceeding and was judicially navigated with electric creativity thanks to the humanist scholarship of Dr Y section Chitale as amicus Curiae and the erudite passion for affirmative court action of Shri Soli Sorabjee the learned Solicitor General
Where the prison process is dehumanized forensic help undeflected by the negative crudities of the adversary system makes us dare where we might have daunted
The finest hour of justice comes when court and counsel constructively collaborate to fashion a relief in the individual case and fathom deeper to cure the institutional pathology which breeds wrongs and defies rights
Here the individual is a prisoner whose anus was allegedly pierced with a warder s baton and the institution is the Tihar Prison right in the capital of the country and under the nose of the Home Ministry
The Perspective This case is revelatory of several sins in this central penitentiary Something is rotten in the State of Denmark   The constitutionaI imperative which informs our perspective in this habeas corpus proceeding must first be set out
The rule of law meets with its Waterloo when the State s minions become law breakers and so the court as the sentinel of the nation and the voice of the Constitution runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders
This case is at once a symptom a symbol and a signpost vis a vis human rights in prison situations
When prison trauma prevails prison justice must invigilate and hence we broaden our habeas  jurisdiction
Jurisprudence cannot slumber when the very campuses of punitive justice witness torture
The petitioner does not seek the release of the prisoner because a life sentence keeps him in confinement
But the dynamic role of judicial remedies after Batra s case imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law live up to its reputation as bastion of liberty even within the secrecy of the hidden cell
Blackstone called it the 563 great and efficacious writ in all manner of illegal confinement  and Lord Deman proclaimed in 1839 that it had been for ages effectual to an extent never known in any other country 
So long as Batra remains good law judicial policing of Bastille practices will broaden to embrace the wider range of prison vices
Dr Chitale drew our attention to American legal literature disclosing the trend while Shri Soli Sorabjee for the Union of India cited Corwin
Corwin s remarks on American constitutional law referred to with approval in Batra has our assent Federal courts have intensified their oversight of State penal facilities reflecting a heightened concern with the extent to which the ills that plague so called correctional institution overcrowding understaffing unsanitary facilities brutality constant fear of violence lack of adequate medical and mental health care poor food service intrusive correspondence restrictions inhumane isolation segregation inadequate or non existent rehabilitative andor educational programs deficient recreational opportunities violate the Eighth Amendment ban on cruel and unusual punishments
 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 Duranta
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 titled People in Prison  stated with telling effect A society that believes in the worth of individual beings can have the quality of its belief judges at least in part by the quality of its prison and probate services and of the resources made available to them
The learned Solicitor General brought this key note thought to our notice in the matchless diction of Sir Winston Churchill and briefly referred to in Batra in a speech seventy years ago The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country
A calm dispassionate 564 recognition of the rights of the accused and even of the convicted criminal against the State a constant heart searching by all charged with the duty of punishment a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment tireless efforts towards the discovery of curative and regenerative processes unfailing faith that there is a treasure if you can only find it in the heart of every man
These are the symbols which in the treatment of crime and criminal mark and measure the stored up strength of a nation and are sign and proof of the living virtue in it
Truly this is a perspective setter and this is also the import of the Preamble and Art 21 as we will presently see
We are satisfied that protection of the prisoner within his rights is part of the office of article Prisons are built with stones of law  and so it behoves the court to insist that in the eye of law prisoners are persons not animals and punish the deviant guardians  of the prison system where they go berserk and defile the dignity of the human inmate
Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials dressed ill a little brief authority  when Part III is invoked by a convict
For when a prisoner is traumatized the Constitution suffers a shock
And when the Court takes cognizance of such violence and violation it does like the
Hound of Heaven But with unhurrying chase And unperturbed pace Deliberate speed and Majestic instancy  follow the official offender and frown down the outlaw adventure
The Facts What are the facts which have triggered off this judicial action  The resume of facts foul on its face reveals the legal issues raised brings into focus the basics of prisoner s rights and helps the court forge remedial directives so as to harmonize the expending habeas jurisprudence with dawning horizons of human rights and enlightened measures of prison discipline
Batra a convict under death sentence lodged in the Tihar Central Jail came to know of a crime of torture practised upon another prisoner Prem Chand allegedly by a jail warder Maggar Singh as a means to extract money from the victim through his visiting relations
Batra braved the consequences of Jail indignation 565 and brought the incident to the ken of the Court resulting in these proceedings which though not strictly traditional are clearly in the nature of habeas corpus writs and therefore within the wider sweep of article 32
The court issued notice to the State and the concerned officials appointed Dr Y section Chitale and Shri Mukul Mudgal as amicus authorised them to visit the prison meet the prisoner and see relevant documents and interview necessary witnesses so as to enable them to inform themselves about the surrounding circumstances and the cruel scenario of events
Counsel on both sides have sensitized the issue of prison justice admirably and catalysed the cause of jail reforms effectively
The democratic hope of the procession is its people s orientation not its lucrative potential nor its intellectual intricacies
And service in the field of the handicapped human sectors like prisoners is a social justice contribution
The enthusiastic work done in the case by the young lawyer Shri Mudgal assisting Dr Chitale deserves our commendation even as the unreserved support rendered to the Court by Shri Sachthey is in the good tradition of the Bar
Back to the facts
One Central episode round which the skein of further facts is wound is beyond doubt viz that Prem Chand the prisoner sustained serious anal injury on or about August 26 1979 because a rod was driven into that sore aperture to inflict inhuman torture
The contemporaneous entry in the Jail Hospital register reads One prisoner Prem Chand so Pyara Lal has developed tear of anus due to forced insertion of stick by someone
He require surgical repair and his bleeding has not stopped
He is to go to Irwin Hospital casualty immediately
Remarks of Superintendent
Noted 27 August 79 sd DS 1235 pm
Sd DR KAPOOR 200 pm
The prisoner s later narration to the doctor in the Irwin Hospital corroborates the case
The unsuccessful and unworthy attempts presumably by overawing the prisoner and even the doctor and other dubious devices
which we do not now scan to do away with this G primary incriminating factor by offering incredible alternatives like rupture of the anus by a fall or self infliction or due to piles and sillier stories only show how the subtle torture of the officials could extract falsehoods from the victim and even medical officers exclupatory of the official criminal whoever he be
There are some traces of attempts to hush up tho crime where the higher officers have not been that innocent
We are taken aback that the tardy police investigation 566 with its lethargic pace and collusive ways has hardly done credit to the Police Department s integrity a fact that the Government will take note of without institutional sheltering of police delinquents
Imagine a police investigator hunting for contradictions obviously to absolve the head warder by interrogating Dr Kapoor who had made an entry in the hospital register and told Dr Chitale that the prisoner had an anal rupture which could not be self inflicted or caused by a fall and was so serious as to require immediate removal to Irwin Hospital and making him say long afterwards on 2 10 1979 by delaying the laying of the chargesheet thus A prisoner named Prem Chand so Prehlad was produced before me for treatment on the afternoon of Sunday 26th August 1979
He was brought by some warder
He was complaining of bleeding from boils on the buttocks
This was also told by the warder who brought him
He was given the required treatment as he was kept under observation on his request
Next day during the ward rounds when I examined him he was having tears of anus and bleeding
On inquiring he told that this has happened due to forced insertion of as stick into his anus
Then he was referred to Irwin Hospital for further treatment
V K Kapoor 2 10 79 Can human nature be such rubber  More than the probity of the investigation and the veracity of the doctor are at stake hope in human integrity without which human dignity will be the first casualty
These observations are not impressionistic but we leave it at that since our primary purpose is to protect the person of the prisoner not to prosecute the offender
We do nat wish to prejudice that process
Regrettably the hearsay  affidavit of the Under Secretary Home Delhi Administration Shri Nathu Ram blinks at the jail vices and merely dresses up the official version without so much as an inquisitorial audit of the lurid happenings in a premier correctional institution of the nation
We deplore the indifferent affiants omnibus approval of every official conduct whereas we should instead have expected Government which sincerely swears by human rights and whose political echelons in succession over the decades are not strangers to the actualities in these detention campuses to have put 567 aside the tendency to white wash every action with an official flavour
A Where human rights are at stake prestige has no place
After the prisoner was subjected to brutal hurt he was removed to the jail hospital and later to the Irwin Hospital but on his re transfer he was neglected but we do not pursue the identity of the culprit or the crime or the treatment since a police investigation is under way
Nevertheless we cannot but remark that whatever damage might have been done upto now  second investigation by a CBI Officer is justified if truth has been suppressed
Dr Chitale pointed out certain poignant facts such as the prisoner himself having been pressured into statements contrary to the case of anal infliction
We do not make comments on them although we are unhappy at the way the business of investigation has been done
Indeed the potential for oblique mutual help between the police and the prison staff makes Jail offences by jail officials undetectable and so to obviate this possibility the CBI may well be entrusted as a regular practice with such cases The prisoner being a person we cannot write him off
The alleged offender Warder Maggar Singh may be left aside for a while
There are other aspects of the torture which demand deeper probe and panacea
The prisoner s explanation for the anal rupture is stated to be an unfulfilled demand for money allegedly a general practice
this shows if true that bribery at the point of barbarity is a flourishing trade within the house of punishment itself
How stern should the sentence be for such official criminals and how diligent should the State be to stamp out this wicked temptation  If you want to end prison delinquencies you must abolish the motivations and opportunities
The counter case if we may so call it of the Warder as disclosed in the Superintendents report is equally disturbing if true On 25 8 79 evening life prisoner Prem Chand So Sh
Prahlad was produced before the Deputy Superintendent for talking Mandrix tablets
As he was in state of intoxication because of taking Mandrix tablets which he admitted before the Deputy Superintendent he was kept in a cell pending orders of the Superintendent
Central Jail
He was taken to the jail hospital the next day ie On 26 8 79 on a report from the above said prisoner as he had pain in his anus and was bleeding
The prisoner remained admitted into the jail hospital upto 27 8 79 2 pm when the Dr V K Kapoor Medical officer recommended for the shifting of this prisoner to the Irwin Hospital with the report mentioned in the petition
568 The prisoner Prem Chand was shifted accordingly by Shri Bachan Singh Assistant Superintendent on duty on 27 8 79
The undersigned was informed that a case us 385 IPC had been registered against warder Maggar Singh in charge of the ward No 11 ie 40 cells with the police station Janak puri and investigation had started in this case
The result of the investigation is still awaited
The prisoner was however received back in the jail on 29 8 79 on being discharged from the Irwin Hospital
The prisoner Prem Chand was kept in a punishment cell  which according to counsel for the Administration was not as bad as a solitary cell although Dr Chitale says that this was similar to the type of insulated confinement condemned as unconstitutional be this Court in Sunil Batra s case supra
Coming to the competing version put for ward by the prison officials through the counter affidavit of the Under Secretary the story even if true is strongly suggestive of a mafia culture prevasive in the Tihar prison
A background of the ethos of the campus may be gleaned from portions of the report of the Superintendent Central Jail Tihar made by him with reference to the alleged torture which is the subject matter of this case
A number of prisoners in the Tihar Jail are habitual offenders professional criminals who have been inmates of the jail from time to time
A number of the said prisoners are rarely visited by their relatives due to the fact that they do not want to associate with such persons
It has been seen that such prisoners are mainly visited by other professionals or habitual offenders in the field with whom they have had former associations
It has been noticed these types of prisoners have been able to develop a certain report with some of the lower staff in the jail namely Head Warders Warders etc
and obtain certain facilities illegally including smuggling of numbers of items ie drugs etc
for their use
It may also be submitted that to check smuggling of narcotic drugs against prisoners who indulge in such activities 30 cases of narcotic offences were get registered against the prisoners with the Janakpuri Police Station during this year
That 95 prisoners were transferred from the jail to Haryana due to administrative reasons which include indiscipline and violation of jail regulations by them and otherwise derogatory behaviour during the last year
This year also about 22 case have been recommended by Superintendent Jail for transfer 
In para 568b and the note thereunder of the 569 Jail Manual the habituals are required to be kept separate from the casual prisoners but due to non availability of any other jail in Delhi they are being kept in Tihar Jail which requires a lot or vigilance on the part of the jail officers
b It may also be mentioned that due to paucity of accommodation the said jail is occupied by double the number of prisoners than it is otherwise authorised
To aggravate the malady we have the fact that a substantial number of the prisoners are under trials who have to face their case in court and are presumably innocent until convicted
By being sent to Tihar Jail they are by contamination made criminals a custodial perversity which violates the test of reasonableness in article 19 and of fairness in article 21
How cruel would it be if one went to a hospital for a checkup and by being kept along with contagious cases came home with a new disease  We sound the tocsin that prison reform is not a constitutional compulsion and its neglect may lead to drastic court action
It would appear that around 300 persons are taken in and out daily between the prison and the courts
And when there arc political agitations
and consequent police arrests and remand to custody the under trial strength swells in numbers
Since many officers busy themselves with production of prisoners in court the case of the Superintendent is that the other prisoners try to do mischief make thefts of other prisoners who go on work smuggle things and even resort to assaults
 To sum up the Tihar prison is an arena of tension trauma tantrums and crimes of violence vulgarity and corruption
And to cap it all there occurs the contamination of pre trial accused with habituals and injurious prisoners of international gang
 The crowning piece is that the jail officials themselves are allegedly in league with the criminals in the cells
That is there is a large network of criminals officials and non officials in the house of correction  Drug racket alcoholism smuggling violence theft unconstitutional punishment by way of solitary cellular life and transfers to other jails are not uncommon
The Administration if it does not immediately have the horrendous situation examined by an impartial authoritative body and sanitize the campus complacent affidavits of Under Secretaries and glittering entries from dignitaries on their casual visits cannot help
While the Establishment sought to produce before the Court extracts from the Visitors  Book to show that many impartial and distinguished persons had complimented the jail authorities on the way managed the prison Dr Chitale placed before us some internal evidence 570 from the materials on record supplemented strongly by personal observations recorded while he was an internee in this very prison by Shri Kuldip Nayar a responsible journalist with no apparent motive for mendacity nor inclination for subjectivity in his book In Jail
There was nothing in the author s view which money could not buy within the recesses of the prison campus
Giving a factual narrative Shri Nayar wrote         one could get as much money as one wanted from outside again at a price
There was a money order and mail service that perhaps was more dependable than what the postal department could offer
For instance when a prisoner in my ward wanted two hundred rupees he sent a note through a warder to his people in old Delhi and in less than twenty four hours he had the money
He paid sixty six rupees as collecting charges thirty three per cent was the prescribed money order charge 
Dharma Teja the shipping magnate who served his sentence in Tihar for instance has thousands of rupees delivered to him we were told
And if one could pay the jail functionaries one could have all the comforts one sought
Teja had all the comforts he had an air cooler in his cell a radio cum record player set and even the facility of of using the phone
Haridas Mundhra a businessman who was convicted of fraud was another rich man who spent some time in Tihar
Not only did he have all
the facilities but he could also go out of the jail whenever he liked at times he would be out for several days and travel even upto Calcutta
All this of course cost a lot of money
An even richer prisoner was Ram Kishan Dalmia he spent most of his jail term in hospital
He was known for his generosity to jail authorities and one doctor received a car as a gift
But more than businessmen it was the smugglers jailed in Tihar who were lavish spenders
Their food came from Moti Mahal and their whisky from Connaught Place
They had not only wine but also women Babuji not tarts but real society girls one warder said
The women would be brought in when the Sahiblog went home for lunch and their empty offices became recreation rooms
 Corruption in jail was so well organised and so systematic that everything went like clockwork once the price had been paid
Jail employees at almost all levels were involved and everyone s share was fixed
There was never a dispute there has to be the proverbial honour among thieves  571 One wonders whether such an indictment made by an established A writer had inclined the Government at least to appoint an Inquiry Commission to acquaint itself with the criminal life style of correctional institutions
The higher officials also have their finger in the pie if Nayar were veracious Perhaps the way almost everyone had his cut was most evident in our milk supply
It came in bulk to the main gate phatak there enough milk for the top officials was taken out of the cans which were then topped up with water
And as the cans moved to the wards all those who handled hem appropriated their share again topping up with water
Even more shocking than the corruption was the ingenious slave system we found in the jail
The slaves were buys between ten and eighteen employed as helpers and there were scores of them
They cooked washed utensils cleaned rooms fetched water and did much back breaking labour to help the men who were paid to do these chores
They would be woken up before 6 am to prepare the morning tea and would be allowed to sleep around 10 pm after scrubbing the pots and pans they were herded into a ward which had no fan and no proper sanitary facilities but was always well lit with many bulbs on all night to enable a sleepy warder to check at a glance that they were all there
These boys were undertrial prisoners many had been there for eight months and at least one had been there for two years
They were taken from one court to another to be tried under one charge or another and kept in jail all the while
The aim was to keep them in as long as possible for without them the people employed to do the menial duties would have no time to relax
one morning I was woken up by the sobbing of a boy and found some other helpers trying to console him while a warder stood by quite unmoved
I went up to him his curly hair reminded me of Raju my younger son
The boy had been picked up the previous evening from Defence Colony in New Delhi kept in a police lock up for the night and brought to jail in the morning  The crime of punishment is a new crime which the rule of law must reach at but what is touching beyond tears even if there be but a title of truth in the statement In Jail is about children being lapped 572 up and locked up for use as bonded labour in punitive houses of justice
The modus operandi is sensitively set down by Kuldip Nayar The warder explained that whenever the number of prisoners in jail went up the police were asked to bring in boys to help with the chores
For the past several days the warder said jail authorities had been pestering the police to get more helpers as the number of detenus had gone up
The evening before when the boy was buying paan betel leaf from a Defence Colony shop the police had hauled him up as a vagabond they were responding to the jail authorities  appeal to book more helpers
This is nothing new it has always been like this the warder explained
Several undertrial boys later related to me their tales of woe how they were arrested on trumped up charges and how they were being held in detention on one pretext or another
We may at this stage go in greater detail into the functional expansion of habeas corpus writs in the current milieu especially because counsel on both sides have compellingly contended for an authoritative pronouncement by this court in favour of a broader jurisdiction
We have earlier noticed that this valuable writ is capable of multiple uses as developed in the American Jurisdiction
Such is the view expressed by many legal writers
In Harvard Civil Rights and Civil Liberties Law Review the view has been expressed that beyond the conventional blinkers courts have been to examine the manner in which an inmate is held or treated during the currency of his sentence
Similar is the thinking expressed by other writers R J Sherpa in The Law of Habeas Corpus 1976 Edn
Juvenal Satires in 1963
In American Jurisprudence there is a pregnant observation The writ is not and never has been a static narrow formalistic remedy
Its scope has grown to achieve its purpose the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty
573 Corpus Juris 2d Vol
39 page 274 para 7 strikes a similar note away from the traditional strain
The courts in America have through the decisional process brought the rule of law into the prison system pushing back protanto the hands off doctrine
In the leading case of Coffin vs Richard the Court of Appeal observed delineating the ambit and uses of the writ of habeas corpus The Government has the absolute right to hold prisoners for offences against it but it also has the correlative duty to protect them against assault or injury from any quarter 
while so held
A prisoner is entitled to the writ of habeas corpus when though lawfully in custody he is deprived of some right to which he is lawfully entitled even in his confinement the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits
When a man possesses a substantial right the court will be diligent in finding a way to protect it
The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights
The judge is not limited to a simple remand or discharge of the prisoner s civil rights be respected
It is significant that the United State Supreme Court has even considered as suitable for habeas relief censorship of prisoners  mail and the ban on the use of law students to conduct interviews with prison inmates in matters of legal relief
In Procunier vs Martinez these two questions fell for decision and the court exercised jurisdiction even in such an internal matter
In Johnson vs Avery a disciplinary action was challenged by a prisoner through a writ of habeas corpus
This indicates the extension of the nature of the writ in the American jurisdiction
Incidentally and interestingly there is reference to some States in the United States experimenting with programmes of allowing senior law students to service the penitentiaries
At a later stage when we concretise definite directives we may have occasion to refer to the use of senior law students for rendering legal aid to prisoners and so it is worthwhile extracting a passage from Johnson vs Avery supra with reference to the Kansas Law School Programme in Prisons at Leavenworth The experience at Leavenworth has shown that there have been very few attacks upon the prison administra  574 tion that prospective frivolous litigation has been screened out and that where the law school felt the prisoner had a good cause of action relief was granted in a great percentage of cases
A large part of the activity was disposing of long outstanding detainers lodged against the inmates
In addition the programme handles civil matters such as domestic relations problems and compensation claims
Even where there has been no tangible success the fact that the inmate had someone on the outside listen to him and analyse his problems had a most beneficial effect
We think that these programmes have been beneficial not only to the inmates but to the students the staff and the courts
Incidentally the presence of law students at the elbow of the prisoner has a preventive effect on ward and warden
The content of our constitutional liberties being no less the dynamics of habeas writs they developed help the judicial process here
Indeed
the full potential of articles 21 19 14 after Maneka Gandhi supra has been unfolded by this Court in Hoskot and Batra
Today human rights jurisprudence in India has a constitutional status and sweep thanks to article 21 so that this Magna Carta may well toll the knell of human bondage beyond civilised limits
The supplementary statement of the Superintendent of the Central Jail partly quoted earlier hair raising when we find that far from rehabilitation intensification of criminality is happening there and the officials are part of this sub culture
We certainly do not wish to generalise but do mean to highlight the facts of life behind the high walls as demanding constitutional and administrative attention
Homage to human rights if it springs from the heart calls for action
Prisons prison staff and prisoners all three are in need of reformation
And this milieu apparently is not unique to Tihar but common to many penal institutions
It is refreshing and heartening that the learned Solicitor General widened our vista and argued that this court having been seized of the problem of prisoners  fundamental freedoms and their traumatic abridgement should give guide lines in this uncharted area design procedures and device mechanisms which will go into effective action when the restricted yet real rights of prisoners are overtly or covertly invaded
The jurisdiction of this court to remedy the violations of prisoners  residuary rights was discussed at the bar as also the package of plausible measures which may appropriately be issued to ensure the functional success of justice when rights are infringed by officials or fellow prisoners
Both sides appreciated the gravity of the jail situation the sensitivity of security considerations the virginity of this 575 field of law and the necessity for normative rules and operative monitoring within the framework of judicial remedies
This constructive stance of counsel unusual in litigative negativity facilitated our resolution of the problems of jail justice despite the touch of jurisprudential novelty and call to judicial creativity
We must formulate the points argued before we proceed to state our reasoning and record our conclusions
Has the court jurisdiction to consider prisoners  grievance not demanding release but within the incarceratory circumstances complaining of ill treatment and curtailment short of illegal detention Yes
We have answered it
What are the broad contours of the fundamental rights especially articles 14 19 and 21 which belong to a detainee sentenced by Court Here too the ground has been covered
What judicial remedies can be granted to prevent and punish their breach and to provide access to prison justice 4
What practicable prescriptions and proscriptions bearing on prison practices can be drawn up by the court consistently with the existing provisions of the and Rules bent to shape to con form to  5
What prison reform perspectives and strategies should be adopted to strengthen in the long run the constitutional mandates and human rights imperatives The canvas was spread wide by counsel and court and we deal with the arguments within the larger spread out of the case
Rulings of this court have highlighted the fact that the framers of our Constitution have freed the powers under article 32 from the rigid restraints of the traditional English writs
Flexible directives even affirmative action moulded to grant relief may realistically be issued and fall within its fertile width
The jurisdictional dimension is lucently laid down by Subba Rao J in Dwarkanath case This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found
The Constitution designedly used a wide language in describing the nature of the power the purpose for which and the person or authority against whom it can be exercised
It can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the 576 expression nature for the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them
That apart High Courts can also issue directions orders or writs other than the prerogative writs
It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country
Any attempt to equate the scope of the power of the High Court under article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure
Such a construction defeats the purpose of the article itself
Where injustice verging on inhumanity emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve this court will be a functional futility as a constitutional instrumentality if its guns do not go into action until the wrong is righted
The court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope
We hold that the court can issue writs to meet the new challenges
Lord Scarman s similar admonition in his English Law The New Dimensions is an encouraging omen
The objection if any is absolute because in a prison situation a Constitution Bench of this Court Batra and Sobraj did imprison the powers of prison officials to put an under trial under iron fetters or confine in solitary cells convicts with death sentences under appeal
Once jurisdiction is granted and we affirm in unmistakable terms that the court has under article 32 and so too under article 226 a clear power and therefore a public duty to give relief to sentences in prison settings the next question is the jurisprudential backing for the play of that jurisdiction
Here again Batra has blazed the trial and it binds
Are prisoners persons Yes of course
To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order which now recognises rights of prisoners in the International Covenant of Prisoners  Rights to which our country has signed assent
In Batra s case this Court has rejected the hands off doctrine and it has been ruled that fundamental n lights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration
Our constitutional 577 culture has now crystalized in favour of prison justice and judicial jurisdiction
The jurisdictional reach and range of this court s writ to hold prison caprice and cruelty in constitutional leash is in contentable but teasing intrusion into administrative discretion is legal anathema absent breaches of constitutional rights or prescribed procedures
The US Supreme Court in like situations has spoken firmly and humanistically and these observations have the tacit approval of our Court in Batra s case
Justice Douglas put it thus
Prisoners are still persons  entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process
Justice Marshal strongly seconded the view I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate and I fully support the court s holding that the interest of inmates in freedom from imposition of serious discipline is a liberty  entitled to due process protection
We therefore affirm that where the rights of a prisoner either under the Constitution or under other law are violated the writ power of the court can and should run to his rescue
There is a warrant for this vigil
The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good
The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration
In a few cases this validation of judicial invigilation of prisoners  condition has been voiced by this court and finally reinforced by the Constitution Bench in Batra supra
The Court need not adopt a hands off attitude in regard to the problem of prison administration
It is all the more so because a convict is in prison under the order and direction of the court
 Under the caption Retention of Authority over Prisoner by Sentencing Judge Krantz notes 578 As noted by Judge Lay in a Judicial Mandate Trial Magazine Nov Dec 1971 at p 15 It should be the responsibility of the court in imposing the sentence to set forth as it would in any equitable decree the end to be achieved and the specifics necessary to achieve that purpose
If then we are to have accountability in the execution of the sentence courts must make clear what is intended in the imposition of the sentence
Every sentence should be couched in terms similar to a mandatory injunction
In this manner the penology system is to be held to account if the government does not faithfully execute the order
In other words the sentencing court should be required to retain jurisdiction to ensure that the prison system res ponds to the purposes of the sentence
If it does not the sentencing court could arguably have the authority to demand compliance with the sentence or even order the prisoner released for non compliance
Whether inside prison or outside a person shall not be deprived of his guaranteed freedom save by methods right just and fair 
Bhagwati J in Maneka Gandhi observed
The principle of reasonableness which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with article 14
It must be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied
Hoskot applied the rule in Maneka Gandhi supra to a prison setting and held that one component of fair procedure is natural justice
Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through writ  aid
The Indian human has a constant companion the court armed with the Constitution
The weapon is habeas  the power is Part III and the projectile is Batra 579 No iron curtain can be drawn between the prisoner and the Constitution
It is therefore the court s concern implicit in the power to deprive the sentences of his personal liberty to ensure that no more and no less than is warranted by the sentence happens
If the prisoner breaks down because of mental torture psychic pressure or physical R infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess
On the contrary if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the
sentence the Prison Establishment will be called to order For such adulteration or dilution of Court sentences by executive palliation if unwarranted by law
One of us in Batra observed Suffice it to say that so long as judges are invigilators and enforcers of constitutionality and performance auditors of legality and convicts serve terms in that grim microcosm called prison by the mandate of the courts a continuing institutional responsibility vests in the system to monitor in the incarceratory process and prevent security excesses  Jailors are bound by the rule of law and cannot inflict supplementary sentence under disguises or defeat the primary purposes of imprisonment
The upshot of this discussion is but this
The Court has power and responsibility to intervene and protect the prisoner against mayhem crude or subtle and may use habeas corpus for enforcing imprison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries
We hold these propositions to be self evident in our constitutional order and is supported by authority if need be
Therefore we issue the writ to the Lt Governor and the Superintendent of the Central Jail that the prisoner Prem Chand shall not be subjected to physical manhandling by any jail official that the shameful and painful torture to which he has been subjected a blot on Government s claim to protect human rights shall be ended and the wound on his person given proper medical care and treatment
The Central Government will we are sure direct its Jail staff not show too pachydermic a disposition for a democratic government
For example specific guidelines before punishing a prisoner had been given in Batra s case and yet the prisoner Prem Chand has been lodged in the punishment cell which is almost the same as a solitary cell with cavalier disregard for procedural safeguards
Merely to plead that many prisoners are habituals  is no ground for habitual 580 violation of law by officials
We direct that Prem Chand be released from the punishment cell and shall not be subjected to such severity until fair procedure is complied with
The chronic callousness of the Prison System to the humane demands of the Constitution despite the fact that many ministers over many decades in many States have known the unbroken tradition of prison sub culture and despite prison diaries of national figures from Jawaharlal Nehru to Jay Prakash Narain has made court and counsel benignly turn the judicial focus on the future so that further mischief may not be suffered in incarceration
There is little doubt that barbarities like bar betters and hand cuffs were recklessly being practised either on account of ignorant unconscionableness or willful viciousness in several detention camps
Many of the victims are poor mute illiterate desperate and destitute and too distant from the law to be aware of their rights or ask for access to justice especially when the running tension of the prison and the grisly potential for zoological reprisals stare them in the face
So it is for the court to harken when humanity calls without waiting for particular petitions
Like class action class remedies have pro bono value
The court the learned Solicitor General underscored this constructive approach must not wait for a stray petition from some weeping inmate and give the little person a little relief in the little case but give the nation its governments prison establishments and correctional departments needed guidance and also fill with hope the hearts of those who cherish human rights that the courts are after all sentinels on the qui vive
Law is what law does and court if anything are constitutional in action
Dr Chitale naturally joined this moving demand
We do think that there are many drawn from the class of penury who suffer more privations than their sentences justify
Ralph Ellison s picture of the American Black has relevance for the prisoner here I am an invisible man
I am a man of substance of flesh and bone fibre an liquids and I might even be said to possess a mind
I am invisible understand simply because people refuse to see me 
When they approach me they see only my surroundings themselves or figments of their imagination indeed everything and anything except me
The invisibility to which I refer occurs because of a peculiar disposition of the eyes of those with whom I come in contact
A matter of construction of their inner eyes 581 those eyes with which they look through their physical eyes  4 upon reality
You wonder whether you are not simply a phantom in other people s minds
You ache with the need to convince yourself that you do exist in the real world that you re a part of all the sound and anguish and you strike out with your fists you curse and you swear to make them recognise you
And alas it is seldom successful
In a culture of Antyodaya the court must rescue the weakest by preemptive guidance without driving parties to post facto litigation
In law as in medicine prevention is better than cure a rule jurisprudents have not sufficiently developed and so we accede to the request of counsel and proceed to discuss the normative side of prison justice
C Before we begin this chapter we might as well set down what the learned Solicitor General stressed viz that the detailed guidelines set out in the separate opinion in Batra s case page 488 to 493 are the same as are implicit in the judgment of Desai J speaking for the other Judges and this position should be re emphasised by this court here so as to avoid misconception
Desai J has stated Justice Krishna Iyer has delivered an elaborate judgment which deals with important issues raised before us at great length and with great care and concern
We have given a separate opinion not because we differ with him on fundamentals but because we thought it necessary to express our views on certain aspects of the questions canvassed before us Likewise in the separate judgment a similar statement is made I am aware that a splendid condensation of the answers to the core questions has been presented by my learned brother Desai J and I endorse the conclusion
A close perusal shows that both the judgments in Batra s case lay down the same rule and the elaborate guidelines in the first opinion are a necessary proliferation of the law expounded in the second judgment in the case
We hold agreeing with both counsel that the detailed prescriptions in the separate opinion in sunil Batra p 488 to 493 is correct law and binds the penal institutions in the country
We agree with these guidelines and express ourselves to that effect since the core question raised in the present case and the cardinal principles we have accepted lead to the same conclusions
At the outset we notice the widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners
Access to law postulates awareness of law and activist awareness of legal rights 582 in the condition for seeking court justice
So the first need in the Juristic twilight is for the State to produce and update a handbook on Prison Justice lucid legible for the lay accurate comprehensive and above all practical in meeting the felt necessities and daily problems of prison life
The Indian Bar has as part of its judicare tryst as a special responsibility to assist the State in this behalf
A useful handbook prepared by the American Civil Liberties Union was handed upto us by Dr Chitale titled The Rights of Prisoners
Law in the books and in the courts is of no help unless it reaches the prisoner in under standable language and available form
We therefore draw the 
attention of the State to the need to get ready Prisoner s Handbook in the regional language and make them freely available to the in mates
To know the law is the first step to be free from fear of unlaw
Prisoners are peculiarly and doubly handicapped
For one thing most prisoners belong to the weaker segment in poverty literacy social station and the like
Secondly the prison house is a walled off world which is incommunicado for the human world with the result that the bonded inmates are invisible their voices inaudible their injustices unheeded
So it is imperative as implicit in article 21 that life or liberty shall not be kept in suspended animation or congealed into animal existence without the freshing flow of air procedure The meaning of life  given by Field J approved in Kharak Singh  and Maneka Gandhi bears exception Something more than mere animal existence
The inhibition against its deprivation extended to all those limbs and faculties by which life is enjoyed
The provision equally prohibits the mutilation of the body by the amputation of an arm
Or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world Therefore inside prisons are persons and their personhood if crippled by law keepers turning law breakers shall be forbidden by the Writ of this Court from such wrong doing
Fair procedure in dealing with prisoners therefor calls for another dimensions of access to law provision within easy reach of the law which limits liberty to persons who are prevented from moving out of prison gates
A handbook meets the logistics of the law in field
Of course the prison staff also suffer from the pathology of misinformation or non education about rights and limitations and this ignoratia juris 583 situation leads to insensitivity to human rights and a test in the hand book of prison law must be a minimum for recruitment
The peril to prison rights is from the uninstructed personnel apart from the anticultural ethos which permeates
It behoves Government to insist on the professional requirement for warders and wardens of a hearty familiarity with the basics of Prison Law
Rights jurisprudence is important but becomes an abstraction in the absence of remedial jurisprudence
Law is not an omnipotence in the sky but a loaded gun which when triggered by trained men with ballistic skill strikes the offending bull s eye
We have made it clear   that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court
All other freedoms belong to him to read and write to exercise and recreation to meditation and chant to creative comforts like protection from extreme cold and heat to freedom from indignities like compulsory nudity forced sodomy and other unbearable vulgarity to movement within the prison campus subject to requirements of discipline and security to the minimal joys of self expression to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment
Chandrachud J long ago spelt out the position and we affirm it Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess
A compulsion under the authority of law following upon a conviction to live in a prison house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India 11 or the right to practise  a profession
A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence
But the Constitution guarantees other freedoms like the right to acquire hold and dispose of property for the exercise of which incarceration 
can be no impediment
Likewise even a convict is entitled G to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law
 We think it proper to suggest that in our country of past colonial subjection and consequent trepidation in life publicity officially is 584 necessary for rights to be appreciated even by the beneficiaries
Therefore large notice boards displaying the rights and responsibilities on prisoners may be hung up in prominent places within the prison in the language of the people
We are dealing with the mechanics of bringing the law within the wakeful ken of the affected persons
61 of the  simplied imaginatively leads to the same result
That section reads Copies of rules under sections 59 and 60 so far as they affect the government of prisons shall be exhibited both in English and in the Vernacular in some place to which all persons employed within a prison have access
 We think it right to hold that copies of the Prison Manual shall be kept within ready reach of prisoners
Darkness never does anyone any good and light never any harm
Perhaps the most important right of a prisoner is to the integrity of his physical person and mental personality
This Court in Batra s case has referred to the international wave of torture of prisoners found in an article entitled Minds Behind Bars 
That heightens our anxiety to solve the issue of prisoners  protection
The problem of law when it is called upon to defend persons hidden by the law is to evolve a positive culture and higher consciousness and preventive mechanisms sensitized strategies and humanist agencies which will bring healing balm to bleeding hearts
Indeed counsel on both sides carefully endeavoured to help the Court to evolve remedial processes and personnel within the framework of the and the parameters of the Constitution
Inflictions may take many protean forms apart from physical assaults
Pushing the prisoner into a solitary cell denial of a necessary amenity and more dreadful sometimes transfer to a distant prison where visits or society of friends or relations may be snapped allotment of degrading labour assigning him to a desperate or tough gang and the like may be punitive ineffect
Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless article 21 is satisfied
There must be a corrective legal procedure fair and reasonable and effective
Such infraction will be arbitrary under Article 14 if it is dependent on unguided discretion unreasonable under article 19 if it is irremediable and unappealable and unfair under article 21 if it violates natural justice
The string of guidelines in Batra set out in the first judgment which we adopt provides for a hearing at some stages a review by a superior and early judicial consideration so that the proceedings may not 585 hop from Caesar to Caesar
We direct strict compliance with those A norms and institutional provisions for that purpose
Likewise no personal harm whether by way of punishment or otherwise shall be suffered by a prisoner without affording a preventive or in special cases post facto remedy before a impartial competent available agency
R The Court is always ready to correct injustice but it is no practical proposition to drive every victim to move the court for a writ knowing the actual hurdles and the prison realities
True technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found still the awe and distance of courts the legalese and mystique keep the institution unapproachable
More realistic is to devise a method of taking the healing law to the injured victim
That system is best where the remedy will rush to the injury on the slightest summons
So within the existing dated legislation new meanings must be read
Of course new legislation is the best solution but when lawmakers take for too long for social patience to suffer as in this very case of prison reform courts have to make do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture
Counsel rivetted their attention on this pragmatic engineering and jointly helped the court to constitutionalise the prescriptions
By this legal energetics they desired the court to read into vintage provisions legal remedies
Primari1y the prison authority has the duty to given effect to the court sentence
See for eg SS 15 and 16 of the Prisoners Act 1900
To give effect to the sentence means that it is illegal to exceed it and so it follows that a prison official who goes beyond more imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of article 19
Punishments of rigorous imprisonment oblige the inmates to do hard labour not harsh labour and so a vindictive officer victimising a prisoner by forcing on him particularly harsh and degrading jobs violates the law s mandate
For example a prisoner if forced to carry night soil may seek a habeas writ Hard labour  in section 53 has to receive a humane meaning
A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day
The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs
Sense and sympathy are not enemies of penal asylum
586 Section 27 2 and 3 of the states 27
The requisitings of this Act with respect to the separations of prisoners are as follows 1 xx xx 2 in a prison where male prisoners under the are of twenty one arc confined means shall be provided for separating them altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not
3 unconvicted criminal prisoners shall be kept apart from convicted criminal prisoners and The materials we have referred to earlier indicate slurring over this rule and its violation must be visited with judicial correction and punishment of the jail staff
Sex excesses and exploitative labour are the vices adolescents are subjected to by adults
The young inmates must be separated and freed from exploitation by adults
If Kuldip Nayar is right this rule is in cold storage
lt is inhuman and unreasonable to throw young boys to the sex starved adult prisoners or to run menial jobs for the affluent or tough prisoners
article 19 then intervenes and shields
Section 29 and connected rules relating to solitary confinement have been covered by Batra s case
But Prem Chand in this very case has been sent to a solitary  or punishment  cell without heeding the rule in Batra s regarding impost of punitive solitary confinement
We cannot agree that the cell is not solitary  and wonder what sadistic delight is derived by the warders and wardens by SUCH cruelty
Any harsh isolation from society by long lonely cellular detention is penal and so must be inflicted only consistently with fair procedure
The learned Solicitor General mentioned that some prisoners for their own safety may desire segregation
In such cases written consent and immediate report to higher authority are the least if abuse is to be tabooed
Visit to prisoners by family and friends are a solace in insulation and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity
Subject of course to search and discipline and other security criteria the right to society of fellow men parents and other family members cannot be denied in the light of article 19 and its sweep
Moreover the whole habilitative purpose of sentencing is to soften not to harden and this will be promo 587 ted by more such meetings
A sullen forlorn prisoner is a dangerous criminal in the making and the prison is the factory Sheldon Krantz rightly remarks In 1973 the National Advisory Commission argued that prisoners should have a right to visitation
Task Force Report Corrections 1973 at 66
It also argued that  correctional officials should not merely tolerate visiting but should encourage it particularly by families
Although the Commission recognised that regulations were necessary to contend with space problems and with security concerns it proposed that priority be given to making visiting areas pleasant and unobtrusive
It also urged that corrections officials should not eavesdrop on conversations or otherwise interfere with the participants  privacy
Thus although there may be current limitations on the possible use of the Constitution on visitation by family and friends public policy should dictate substantial improvements in this area in any event
We see no reason why the right to be visited under reasonable restrictions should not claim current constitutional status
We hold t subject to considerations of security and discipline that liberal visits by family members close friends and legitimate callers are part of the r prisoners  kit of rights and shall be respected
Parole again is a subject which is as yet unsatisfactory and arbitrary but we are not called upon to explore that constitutional area and defer it
Likewise to fetter prisoners in iron is an inhumanity unjustified save where safe custody is otherwise impossible
The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice
And yet this unconstitutionally is heartlessly popular in many penitentiaries so much so a penitent law must proscribe its use in any but the gravest situation
These rights and safeguards need a machinery
The far internal invigilation and independent oversight cannot be overemphasised
Prisoners  rights and prison wrongs are a challenge to remedial creativity
Krantz in his book supra notes To respond to the need for effective grievance procedures will probably require both the ceation of internal pro 588 grams formal complaint procedures and programs involving outsiders ombudsmen citizens investigative committees mediators etc
So apart from judicial review for prisoners  rights and conditions of confinement we have to fabricate instant administrative grievance procedures
Indeed a new chapter of offences carrying severe punishments when prison officials become delinquents is an urgent item on the agenda of prison reform and lodging of complaints of such offences together with investigation and trial by independent agencies must also find a place in such a scheme
We are dealing with a morbid world where sun and light are banished and crime has neurotic dimensions
Special situations need special solutions
We reach the most critical phase of counsel s submissions viz the legal fabrication and engineering of a remedial machinery within the fearless reach of the weakest of victims and worked with independence accessibility and power to review and punish
Prison power absent judicial watch tower may tend towards torture
The and Rules need revision if a constitutionally and culturally congruous code is to be fashioned
The model jail manual we are unhappy to say and concur in this view with the learned Solicitor General is far from a model and is perhaps a product of prison officials insufficiently instructed in the imperatives of the Constitution and unawakened to the new hues of human rights
We accept for the nonce the suggestion of the Solicitor General that within the existing statutory framework the requirements of constitutionalism nay be read
He heavily relies on the need for a judicial agency whose presence direct or by delegate within the prison walls will deal with grievances
For this purpose he relies on the Board of Visitors their powers and duties as a functional substitute for a Prison ombudsman
A controllerate is the desideratum for in situ reception and redressal or grievances
After all the daily happenings when they hurt harshly have to be arrested forthwith especially when it is the prison guards and the head warders who brush with the prison inmates
Their behaviour often causes friction and fear but when their doings are impeached the institutional defence mechanism tends to protect them from top to bottom
So much so injustice escapes punishment
In this context it is apt to quote David Rudovsky 589 The present system puts absolute discretion and day to day power over every aspect of a prisoner s life in their hands
It is this part of prison life which causes the deepest resentment among prisoners for to a large extent the manner in which an inmate is treated by the guards determines the severity of conditions he will have to endure
It is a doub1e irony that the lower the level of authority in prison from warden on down to guard the greater tho discretion that is vested in the prison official and the less willing the courts are to review their decisions Thus whether it be a request for medical treatment the right to go to the yard of prison library or the potentially more serious matter of prison discipline and punishment the guard of the block holds ultimate power over the prisoner
Complete discretion in the context of prison life where no remedies exist to correct it can be catastrophic Judge Sobeloff has put it bluntly In fact prison guards may be more vulnerable to the corrupting influence of unchecked authority than most people
It is well known that prisons are operated on minimum budgets and that poor salaries and working conditions make it difficult to attract high calibre personnel
Moreover the training of the officers in dealing with obstreperous prisoners is but a euphemism in most states
George A Ellis quotes a prisoner s letter You cannot rehabilitate a man through brutality and disrespect
If you treat a man like an animal then you must expect him to act like one
For every action there is a reaction
And in order for an inmate to act like a human being you must trust him as such
You can t spit in his face and expect him to smile and say thank you
The institution and composition of the Board of Visitors comes in handy and has statutory sanction
The visitatiorial power is wide the panel of visitors includes judicial officers and such situation can be pressed into service legally to fulfil the constitutional needs
Para 47 read with para 53 A sets out the structure of the Board Para 47b to d includes District  Sessions Judges District Magistrates and Sub Divisional Magistrates among the members
The functions of visitors are enumerated in para 53 and 53 B and they include a 590 inspect the barracks cells wards workshed and other buildings of the jail generally and the cooked food b ascertain whether considerations of health cleanliness and security are
attended to whether proper management and discipline are maintained in every respect and whether any prisoner is illegally detained or is detained for an undue length of time while awaiting trial c examine jail registers and records d hear attend to all representations and petitions made by or on behalf of prisoners and e direct if deemed advisable that any such representation or petitions be forwarded to Government
In the sensitive area of prison justice the judicial members have special responsibilities and they must act as wholly independent overseers and not as ceremonial panelists
The judges are guardians of prisoners  rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates  personality
Moreover when a wrong is done inside jail the judicial visitor is virtually a peripatetic tribunal and sentinel at once intramural and extra mural observer receiver and adjudicator of grievance
What then
are prisoner Prem Chands  rights in the specific set t ng of this case where the complaint is that a jail warder for pernicious purposes inflicted physical torture  The Punjab Prison Manual clearly lays down the duties of District Magistrates with reference to Central Jails
Para 41 l and 3 read thus 41
l It shall be the duty of the Magistrate of the district from time to time to visit and inspect jails situate within the limits of his district and to satisfy himself that the provisions of the  and of all rules regulations directions and orders made or issued thereunder applicable to such jail are duly observed and enforced
xx xx xx 3 A record of the result of each visit and inspection made shall be entered in a register to be maintained by the Superintendent for the purpose
Para 42 is also relevant 42
In the absence of the Magistrate of the district from headquarters or in the event of that officer being at any time unable from any cause to visit the jail in the manner in these rules prescribed in that behalf he shall depute a Magistrate 591 subordinate to him who is available for the duty to visit and A inspect the jail on his behalf
Any officer so deputed may subject to the control of the Magistrate of the district
exercise all or any of the powers by the  or these rules conferred upon the Magistrate of the district
Paragraph 44 clothes the District Magistrate with powers and makes his orders liable to be obeyed
1 The orders passed under sub section 2 of section l of the  should except in emergent cases in which immediate action is in the opinion of such Magistrate necessary be so expressed that the Superintendent may have time to refer if he thinks necessary to the Inspector General before taking action thereon
2 All orders issued by the Magistrate of the district shall if expressed in terms requiring immediate compliance be forthwith obeyed and a report made as prescribed in the said sub section to the Inspector General
D We understand these provision to cover the ground of reception of grievance from prisoners and issuance of orders thereon after prompt enquiry
The District Magistrate must remember that in this capacity he is a judicial officer and not an executive head and must function as such independently of the prison executive
To make prisoners  rights in correctional institutions viable we direct the District Magistrate concerned to inspect the jails in his district once every week receive complaints from individual prisoners and enquire into them immediately
If he is too preoccupied with urgent work para graph 42 enables him to depute a magistrate subordinate to him to visit and inspect the jail
What is important is that he should meet the prisoners separately if they have grievances
The presence of warders or officials will be inhibitive and must be avoided
He must ensure that his enquiry is confidential although subject to natural justice and does not lead to reprisals by jail officials
The rule speaks of the record of the result of each visit and inspection
This empowers him to enquire and pass orders
All orders issued by him shall be immediately complied with since obedience is obligated by para 442
In the event of non compliance he should immediately inform Government about such disobedience and advise the prisoner to forward his complaint to the High Court under article 226 together with a copy of his own report to help the High Court exercise its habeas corpus power
Indeed it will be practical as suggested by the learned Solicitor General if the District Magistrate keeps a grievance box in each 592 ward to which free access shall be afforded to every inmate
It should be kept locked and sealed by him and on his periodical visit he alone or his surrogate should open the box find out the grievances investigate their merits and take remedial action it justified
Chapter V of the Manual deals with visitors who arc an important component of jail management
Para 47 specially mentions District  Sessions Judges District Magistrates Sub Divisional Magistrates and Superintendent of Police as members of the Board of Visitors
In fact Sessions Judges arc required to visit the jails periodically the District Magistrates and Sub Divisional Magistrates and magistrates subordinate to them and others appointed by them in this behalf are to visit jails in their jurisdiction once a week under the existing Rule
We direct in implementation of the constitutional obligation we have already discussed at length to safeguard prisoners  fundamental rights that the Sessions Judges and District Magistrates or other subordinates nominated by them shall visit jails once a week in their visitorial functions
Para 49 has strategic significance and may be reproduced 49
1 Any official visitor may examine all or any of the books papers and records of any department of and may interview any prisoner confined in the jail
2 It shall be the duty of every official visitor to satisfy himself that the provisions of the  and of the rules regulations orders and directions made or issued J thereunder are duly observed and to hear and bring to notice any complaint or representation made to him by any prisoner
We understand this provision to mean that the Sessions Judge District Magistrate or their nominees shall hear complaints examine all documents take evidence interview prisoners and check to see if there is deviance disobedience delinquency or the like which infringes upon the rights of prisoners
They have a duty to hear and bring to notice any complaint or representation made to him by any prisoner
Nothing clearer is needed to empower these judicial officers to investigate and adjudicate upon grievances
We direct the Sessions Judges concerned under his lock and seal to keep a requisite number of grievance boxes in the prison and give necessary directions to The Superintendent to see that free access is afforded to put in complaints of encroachments injuries or torture by any prisoner where he needs remedial action
Such boxes shall hot be tampered with by any one 593 and shall be opened only under the authority of the Sessions Judge
We need hardly emphasise the utmost vigilance and authority that the Sessions Judge must sensitively exercise in this situation since prisoner s personal liberty depends in this undetectable campus upon his awareness activism adjudication and enforcement
Constitutional rights shall not be emasculated by the insouciance of judicial officers
The prison authorities shall not in any manner obstruct or noncooperate with reception or enquiry into the complaints otherwise prompt punitive action must follow the High Court or the Supreme Court must be apprised of the grievance so that habeas corpus may issue after due hearing
Para 53 is important in this context and we reproduce it below 53
All visitors shall be afforded every facility for observing the state of the jail and the management thereof and shall be allowed access under proper regulations to all parts of the jail and to every prisoner confined therein
Every visitor should have the power to call for and inspects any book or other record in the jail unless the Superintendent for reasons to be recorded in writing declines on the ground that its production is undesirable
Similarly every visitor should have the right to see any prisoner and to put any questions to him out of the hearing of any jail officer
E There should be one visitor s book for both classes of visitors their remarks should in both cases be forwarded to the Inspector General who should pass such orders as he thinks necessary and a copy of the Inspector General s order should be sent to the visitor concerned
Paras 53 B and 53 D are not only supplementary but procedurally vital being protective provisions from the stand point of prisoners
We except them here for double emphasis although adverted to earlier 53 B
All visitors official and non official at every visit shall a inspect the barracks cells wards workshed and other buildings of the jail generally and cooked food b ascertain whether considerations of health cleanliness and security are attended to whether proper management and discipline are maintained in every respect and whether any prisoner is illegally detrained 594 Or is detained for an undue length of time while awaiting trial c examine jail registers and records d hear attend to all representations and petitions made by or on behalf of prisoners and e direct if deemed advisable that any such representations or petitions be forwarded to Government
53 D No prisoner shall be punished for any statement made by him to a visitor unless an enquiry made by a Magistrate results in a finding that it is false
We hope indeed we direct the judicial and other official visitors to live upto the expectations of these two rules and strictly implement their mandate
Para 54 is also part of this package of visitatorial provisions with invigilatory relevance
We expect compliance with these provisions and if the situation demands it report to the High Court for action in the case of any violation of any fundamental right of a prisoner
The long journey through jail law territory proves that a big void exists in legal remedies for prisoner injustices and so constitutional mandates can become living companions of banished humans only if non traditional procedures duly oriented personnel and realistic reliefs meet the functional challenge
Broadly speaking habeas corpus powers and administrative measures are the pillars of prisoners  rights
The former is invaluable and inviolable but for an illiterate timorous indigent inmate community judicial remedies remain frozen
Even so this constitutional power must discard formalities dispense with full particulars and demand of the detainer all facts to decide if humane and fair treatment prevails constitutionally sufficient and comporting with the minimum international standards for treatment of prisoners
Publicity within the prison community of court rulings in this area will go a long way to restore the morale of inmates and hopefully of the warders
So we direct the Delhi Administration to reach in Hindi the essentials of this ruling to the ken of the jail people
The stress that we lay is on the need of the Court to be dynamic and diversified in meeting out remedies to prisoners
Not merely the contempt power but also the power to create ad hoc and use the services of officers of justice must be brought into play
In this very case Dr Chitale as amicus curiae was so authorised with satisfactory results
American juristic thought has considered similar action by courts using 595 Masters Primarily factfinders for the court Receivers Primarily hold manage or liquidate property Special Masters responsible for multiple functions such as fashioning a plan and assisting in its implementation Monitors responsible for observing the implementation process and reporting to the court and Ombudsmen responsible for hearing inmate complaints and grievances conducting investigations and making recommendations to the court
Courts which have utilised some of these special officers including Hamilton v Schiro 388 F Supp
1016 EDLa 1970 and Jackson vs Hendrick 1974 Special Masters Wayne County Bd
Of Comm rs Civ
Action 173271 Cir
Of Wayne City
 Nich 1972 Monitor and Morales vs Turman 364 F Suppl
166 ED Tex 1973 ombudsmen
The use of special judicial officers like the use of the contempt power holds considerable promise for assisting courts in enforcing judicial orders
Hopefully their use will be expanded and refined over time
These measures are needed since the condition is escalating
The situation in Tihar Jail is a reflection of crime explosion judicial slow motion and mechanical police action coupled with unscientific negativity and expensive futility of the Prison Administration
The Superintendent wails in court that the conditions are almost unmanageable i Huge overcrowding in the jail
Normal population of the jail remains between 2300 2500 against 1273 sanctioned accommodation
ii No accommodation for proper classification for undertrials females habituals casuals juveniles political prisoners etc
iii Untrained staff of the Assistant Superintendents
Assistant Superintendents are posted from other various departments of Delhi Admn
viz Sales Tax Employment Revenue Civil Supplies etc etc
iv Untrained mostly the warders guard and their being non transferable
596 v A long distance from the courts of the jail and production of a large number of undertrial prisoners roughly between 250 300 daily and their receiving back into the jail in the evening
vi The population of the jail having a large number of drugs addicts habitual pickpockets having regular gangs outside to lookafter their interests legal and illegal both from outside
Other jails may compete with Tihar to bear the palm in bad treatment and so the problem is pan Indian
That is why we have been persuaded by the learned Solicitor General to adventure into this undiscovered territory
The Indian Bar and may be the Bar Council of India and the academic community must aid the court and country in this operation Prison Justice
In a democracy a wrong to some one is a wrong to every one and an unpunished criminal makes society vicariously guilty
This larger perspective validates our decisional range
Before we crystalise the directions we issue one paramount thought must be expressed
The goal of imprisonment is not only punitive but restorative to make an offender a non offender
In Batra s case this desideratum was stated and it is our constitutional law now implicit in article 19 itself
Rehabilitation is a prized purpose of prison hospitalization 
A criminal must be cured and cruelty is not curative even as poking a bleeding wound is not healing
Social justice and social defence the sanction behind prison deprivation ask for enlightened habilitative procedures
A learned writer has said The only way that we will ever have prisons that operate with a substantial degree of justice and fairness is when all concerned with that prison staff and prisoners alike share in a meaningful way the decision making process share the making of rule and their enforcement
This should not mean three snitches appointed by the warden to be an inmate advisory committee
However if we are to instill in people a respect for the democratic process which is now the free world attempts to live we are not achieving that by forcing people to live in the most etalitarian institution that we have in our society
Thus ways must be developed to involve prisoners in the process of making decision that affect every aspect of their life in the prison
The Standard Minimum Rules put out by United Nations agencies also accent on socialisation of prisoners and social defense 597 57
Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self determination by depriving him of his liberty
Therefore the prison system shall not except as incidental to justifiable segregation or the maintenance of discipline aggravate the suffering inherent in such a situation
The purpose of justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime
This end can only be achieved if the period of imprisonment is used to ensure so far as possible that upon his return to society the offender is not only willing but able to lead a law abiding and self supporting life
To this end the institution should utilize all the remedial educational moral spiritual and other forces and forms of assistance which are appropriate and available and should seek to apply them according to the individual treatment needs of the prisoners
Prison processed rehabilitation has been singularly unsuccessful in the West and the recidivism rate in our country also bears similar testimony To get tough to create more tension to inflict more cruel E punishment is to promote more stress more criminality more desperate beastliness and is self defeating though soothing to sadists
Hallock a professor at the University of Wisconsin says The stresses that lead to mental illness are often the same stresses that lead to crime
Mental illness always has a maladaptive quality and criminality usually has a maladaptive quality
The final panacea for prison injustice is therefore more dynamic far more positive strategies by going back to man the inner man The ward warden relationship needs holistic repair if prisons are in Gandhian terms to become hospitals if penology as modern criminologists claim is to turn therapeutic
The hope of society from investment in the penitentiary actualises only when the inner man within each man doing the penance of prison life transforms his outer values and harmonises the environmental realities with the infinite potential of his imprisoned being
Meditative experiments follow up researches and welcome results in many countries lend optimism to 598 techniques of broadening awareness deepening consciousness and quietening the psychic being
It is of seminal importance to note that the Tamil Nadu Prison Reforms Commission 1978 79 headed by a retired Chief Justice of the High Court of Patna working with a team of experts
has referred with approval to successful experiments in Transcendental Meditation in the Madurai Central Prison Success has been claimed for this programme
It is re ported that there is reduction of anxiety and fear symptoms greater flexibility in dealing with frustration increased desire to care for others and ability to interact in group situations viz rational rather than purely aggressive means
Some in mates reported spontaneous reduction in clandestine use of alcohol and ganja and even cigarette smoking was less
Prison authorities informed us that they noticed personality changes in some of these prisoners and that they now had the calm and pleasant exchanges with these inmates
Their behaviour towards others in the prison and relationship with prison authorities also changed considerably
There is a proposal to extend this treatment to short term prisoners also
This treatment may also be tried in other prisons where facilities exist
A copy of the report of the Director of the Madurai Institute of Social Work is in Appendix XI
The time for prison reform has come when Indian methodology on these lines is given a chance
We do no more than indicate the sign post to Freedom From Crime and Freedom Behind Bars as a burgeoning branch of therapeutic jurisprudence
All this gains meaning where we recognise that mainstreaming prisoners into community life as willing members of a law abiding society is the target
Rule 61 of the Standard Minimum Rules stresses this factor 61
The treatment of prisoners should emphasize not their exclusion from the community but their continuing part in it
Community agencies should therefore be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners
There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social 599 agencies
Steps should be taken to safeguard to the minimum extent compatible with the law and the sentence the rights relating to civil interests social security rights and other social benefits of prisoners
It follows that social resources helpful to humane treatment and mainstreaming should be ploughed in senior law students screened by the Dean of reputed Law Schools may usefully be deputed to interview prisoners subject to security and discipline
The grievances so gathered can be fed back into the procedural mechanism viz the District Magistrate or Sessions Judge
The Delhi Law School we indicate should be allowed to send selected students under the leadership of a teacher not only for their own clinical education but as prisoner grievance gathering agency
Other service organisation with good credentials should be encouraged after due checking for security to play a role in the same direction
The does provide for rule making and issuance of instructions which can take care of this suggestion
Omega The omega of our judgment must take the shape of clear directives to the State and prison staff by epitomising the lengthy discussion
To clinch the issue and to spell out the precise directions is the next step
We hold that Prem Chand the prisoner has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party
Lack of vigilance is limited guilt
We do not fix the primary guilt because a criminal case is pending or in the offing
The State shall take action against the investigating police for the apparently collusive dilatoriness and deviousness we have earlier indicated
Policing the police is becoming a new ombudsmanic task of the rule of law
We direct the Superintendent to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted
No irons shall be forced on the person of Prem Chand in vindictive spirit
In those rare cases of dangerousness  the rule of hearing and reasons set out by this Court in Batra s case and elaborated earlier shall be complied with
600 3
Lawyers nominated by the District Magistrate Sessions Judge High Court and the Supreme Court will be given all facilities for inter views visits and confidential communication with prisoners subject to discipline and security considerations
This has roots in the visitatorial and supervisory judicial role
The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances
Within the next three months Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deem d fit and suitable action taken on complaints made
Access to such boxes shall be accorded to all prisoners
District Magistrates and Sessions Judges shall personally or through surrogates visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances shall make expeditious enquiries there into and take suitable remedial action
In appropriate cases reports shall be made to the High Court for the latter to initiate if found necessary habeas action
It is significant to note the Tamil Nadu Prison Reforms Commission s observations 3816
Grievance Procedure  This is a very important right of a prisoner which does not appear to have been properly considered
The rules regulating the appointment and duties of non official visitors and official visitors to the prisons have been in force for a long time and their primary functions is to visit all parts of the jail and to see all prisoners and to hear and enquire into any complaint that any prisoner hear make
In practice these rules have not been very effective in providing a forum for the prisoners to redress their grievances
There are a few non official visitors who take up their duties conscientiously and listen to the grievances of the prisoners
But most of them take this appointment solely as Fl a post of honour and are somewhat reluctant to record hl the visitors  book any grievance of a prisoner which might cause embarrassment to the prison staff
The judicial officers viz 601 the Sessions Judge and the Magistrates who are also ex officio visitors do not discharge their duties effectively
We insist that the judicial officers referred to by us shall carry out their duties and responsibilities and serve as an effective grievance Mechanism
No solitary or punitive cell no hard labour or dietary change as painful additive no other punishment or denial of privileges and amenities no transfer to other prisons with penal consequences shall be imposed without judicial appraisal of the Sessions Judge and where such intimation on account of emergency is difficult such information shall be given within two days of the action
Conclusion What we have stated and directed constitute the mandatory part of the judgment and shall be complied with by the State
But implicit in the discussion and conclusions are certain directives for which we do not fix any specific time limit except to indicate the urgency of their implementation
We may spell out four such quasi mandates
The State shall take early steps to prepare in Hindi a Prisoner s Handbook and circulate copies to bring legal awareness home to the k inmates
Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellow ship which Will ease tensions
A prisoners  wall paper which will freely ventilate grievances will also reduce stress
All these are implementary of section 61 of the  2
The Slate shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations especially those relating to work and wages treatment with dignity community contact and correctional strategies
In this latter aspect the observations we have made of holistic development of personality shall be kept in view
The needs rehabilitation and the Prison Manual total overhaul even the Model Manual being out of focus with healing goals
A correctional cum orientation course is necessitous for the prison staff inculcating the constitutional values therapeutic approaches and tension free management
602 4
The prisoners  rights shall be protected by the court by its writ jurisdiction plus contempt power
To make this jurisdiction viable free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the Court such as for eg Free Legal Aid Supreme Court Society
The District Bar shall we re commend keep a cell for prisoner relief In this connection it is heartening to note that the Delhi University Faculty of Law has a scheme of free legal assistance even to prisoners
The Declaration on the Protection of All Persons from Torture and other cruel Inhuman or Degrading Treatment or Punishment adopted by U N General Assembly Resolution 3452 of 9 December 1975 has relevance to our decision
In particular Article 8
Any person who alleges that he has been subjected to torture or other cruel inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to and to have his case impartially examined by the competent authorities of the State concerned
Article 9
Wherever there is reasonable ground to believe that an act of torture as defined in article I has been committed the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint
Dr Chitale has handed up to us an American Civil Liberties Union Hand book on the Rights of Prisoners
It rightly sets the sights of prison justice thus  As an institution our penal and correctional system is an abject failure
The conditions in America s jails and prisons virtually ensure psychological impairment and physical deterioration for thousands of men and women each year
Reformation and rehabilitation is the rhetoric systematic dehumanization is the reality
Public attention is directed 603 only sporadically toward the subhuman conditions that prevail in these institutions and usually only because the prisoners themselves have risked many more years in confinement and in some cases even their lives to dramatize their situation by protest
The central evil  of prison life according to this handbook is the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners
Moreover even those rights which are now guaranteed by the courts are often illusory for many prisoners
Implementation and enforcement of these rights rest primarily in the hands of prison officials
Litigation is costly and time consuming and few lawyers have volunteered their service in this area
Thus even those minimal rights which appear on paper are often in reality denied
 We conclude with the hope that the State though preoccupied with many pressing problems will discharge its constitutional obligation to the invisible mortals incarcerated by it and legislatively and administratively re make a Prison Code adhering to the high values of the Preamble
Over a hundred years ago 1870   some American prison administrators assembled to discuss their common problems and founded what is now the American Correctional Association
At the very first meeting these remarkable men set down a justly famous Statement of Twenty two Principles
 Among the twenty two were these Reformation not vindictive suffering should be the purpose of the penal treatment of prisoners
The prisoner should be made to realize that his destiny is in his own hands Prison discipline should be such as to gain the will of the prisoner and conserve his self respect The aim of the prison should be to make industrious free men rather than orderly and obedient prisoners
This quote from the well known work The Crime of Punishment extracted by George Ellis in his book Inside Folsom Prison Trans 604 cendental mediation and TM Sidhi Program is notable as a practicable project which will reduce the number of prisoners by raising the nature of prisoners
In the package of benign changes needed in our prisons with a view to reduce tensions and raise the pace of rehabilitation we have referred to acclimatization of the community life and elimination of sex vice vis a vis prisoner we have also referred to the unscientific mixing up in practice of under trials young offenders and long term convicts
This point deserves serious attention
A recent book Rape in Prison states  One of the most horrendous aspects of a jail sentence is the fact that not only are the young housed with the older offenders but those awaiting trial share the same quarters as convicted inmates
The latter individuals have little to lose in seeking sexual gratification through assault for they have to serve their time any way 
As matters now stand sex is unquestionable the most pertinent issue to the inmates  life behind bars
There is a great need to utilize the furlough system in corrections
Men with record showing good behaviour should be released for week ends at home with their Families and relatives
Farewell to this case is not final so far as the jailor and the police investigator are concerned
The former will stand his trial and shall receive justice
We say no more here
The investigator invites our displeasure and the Assistant Public Prosecutor whom he consulted makes us unhappy since we have had a perusal of the case diary
The crime alleged is simple the material relied on is short and yet despite repeated observations from the Bench the investigator has delayed dawdily the completion of the collection of evidence and the laying of the charge sheet
The prisoner who is the victim has been repeatedly questioned under different surroundings and divergent statements are recorded
We do not wish to state what we consider to be the obvious inference but we are taken aback when the Assistant Public Prosecutor has given an opinion which if we make presumption in his favour 605 shows indifferences and if we make contrary inferences makes us suspect
When offences are alleged to have taken place within the prison there should be no tinge or trace of departmental collusion or league between the police and the prison staff
We make these minimal observations so that the State may be alerted for appropriate action
Surely The conduct of the prosecution cannot be entrusted to one who has condemned it in advance
B We allow the petition and direct a writ to issue including the six mandates and further order that a copy of it be sent for suitable action to the Ministry of Home Affairs and to all the State Governments since Prison Justice has pervasive relevance
C PATHAK J
I have read the judgment prepared by my learned brother
For my part I think it sufficient to endorse the following finding and direction detailed towards the end of the judgment 1 The prisoner Prem Chand has been tortured while in custody in the Tihar Jail
As a criminal case is in the offing or may be pending it is not necessary in this proceeding to decide who is the person responsible for inflicting the torture
2 The Superintendent of the Jail is directed to ensure that no punishment or personal violence is inflicted on Prem Chand by reason of the complaint made in regard to the torture visited on him
Besides this I am in general agreement with my learned brother on the pressing need for prison reform and the expeditious provision for adequate facilities enabling the prisoners not only to be acquainted with their legal rights but also to enable them to record their complaints and grievances and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the Court having jurisdiction subject of course to considerations of prison discipline and security
It is imperative that District Magistrate and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and where the matter lies within their powers to make expeditious enquiry therein and take suitable remedial action
It is also necessary 606 that the Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action
A statement by the Sessions Judge in regard to his visits enquiries made and action taken thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within the jurisdiction of the High Court


Summary:
The petitioner a convict under death sentence through a letter to one of the Judges of this Court alleged that torture was practised upon another prisoner by a jail warder to extract money from the victim through his visiting relations
The letter was converted into a habeas corpus proceeding
The Court issued notice to the State and the concerned officials
It also appointed amicus curiae and authorised them to visit the prison meet the prisoner see relevant documents and interview necessary witnesses so as to enable them to inform them selves about the surrounding circumstances and the scenario of events
The amicus curiae after visiting the jail and examining witnesses reported that the prisoner sustained serious anal injury because a rod was driven into that aperture to inflict inhuman torture and that as the bleeding had not stopped he was removed to the jail hospital and later to the Irvin Hospital
It was also reported that the prisoner s explanation for the anal rupture was an unfulfilled demand of the warder for money and that attempts were made by the departmental officers to hush up the crime by overawing the prisoner and the jail doctor and offering a story that the injury was either due to a fall of self inflication or due to piles
Allowing the writ petition  HELDPer Krishna Iyer and Chinnappa Reddy JJ 1
a Prem Chand the prisoner has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party
Lack of vigilance is limited guilt
The primary guilt cannot be fixed because a criminal case is pending or is in the offing
The State shall take action against the investigating police for collusive dilatoriness and deviousness599 F 558 b The Superintendent is directed to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted
No irons shall be forced on the person in vindictive spirit
599 H c Lawyers nominated by the District Magistrate Sessions Judge High Court or the Supreme Court will be given all facilities for interviews visits and confidential communication with prisoners subject to discipline and security considerations
The lawyers so designated shall be bound to make periodical visits and record and report to the concerned courts results which have relevance to legal grievances
600 A B d Within the next three months Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made
Access to such boxes shall be afforded to all prisoners
600 C e District Magistrates and Sessions Judges shall personally or through surrogates visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances shall make expeditious enquiries there into and take suitable remedial action
In appropriate cases reports shall be made to the High Court for the latter to initiate if found necessary habeas action
600 D f No solitary or punitive cell no hard labour or dietary change as painful additive no other punishment or denial of privileges and amenities no transfer to other prisons with penal consequences shall be imposed without judicial appraisal of the Sessions Judge and where such intimation an account of emergency is difficult such information shall be given within two days of the action
601 B C 2
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
563 E 3
Protection of the prisoner within his rights is part of the office of Article 32
564 C 4
It behoves the court to insist that in the eye of law prisoners are persons not animals and to punish the deviant guardians  of the prison system where they go berserk and defile the dignity of the human inmate
Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials dressed in a little brief authority 
when Part III is invoked by a convict
When a prisoner is traumatized the Constitution suffers a shock
564 D E 5
The courts in America have through the decisional process brought the rule of law into the prison system pushing back pro tanto the hands off  doctrine
The content of our constitutional liberties being no less the dynamics of habeas writs there developed help the judicial process here
The full potential of articles 21 19  14 after Maneka Gandhi has been unfolded by this Court in Hoskot and Batra
Today human rights jurisprudence in India has a constitutional status and sweep
573 A 574 D 6
Rulings of this Court have highlighted the fact that the framers of the Constitution have freed the powers under article 32 from the rigid restraints of 559 the traditional English writs
Flexible directives even affirmative action moulded to grant relief may realistically be issued and fall within its fertile width
575 F Dwarkanath vs income Tax officer  referred to
Where injustice verging on inhumanity emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve the Court will be a functional futility as a constitutional instrumentality if it does not go into action until the wrong is righted
The Court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope
The court can issue writs to meet the new challenges
576 D 8
Affirmed in unmistakables terms that the court has jurisdiction under article 32 and so too under article 226 a clear power and therefore a public duty to give relief to sentence in prison setting
576 F 9
In Sunil Batra vs Delhi Administration this Court rejected the hands off  doctrine and ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration
Our Constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction
576 H 577 A 10
Where the rights of a prisoner either under the Constitution or under other law are violated the writ power of the court can and should run to his rescue
There is a warrant for this vigil
The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good
The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration
577 E F 11
Whether inside prison or outside a person shall not be deprived of his guaranteed freedom save by methods right just and fair 
578 E 12
A prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through writ  aid
The Indian human has a constant companion the court armed with the Constitution
578 H Maneka Gandhi vs Union of India  N H Hoskot vs Maharashtra   referred to 13
Implicit in the power to deprive the sentence of his personal liberty the Court has to ensure that no more and no less than is warranted by the sentence happens
If the prisoner breaks down because of mental torture psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess
On the contrary if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation if unwarranted by law
579 B C 14
The court has power and responsibility to intervene and protect the prisoner against mayhem crude or subtle and may use habeas corpus for 560 enforcing in prison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries
579 E 15
Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form
There is therefore need to get ready a Prisoners  Handbook in the regional language and make them freely available to the inmates
To know the law is the first step to be free from fear of unlaw
582 C 16i The most important right of a prisoner is to integrity of his physical person and mental personality
No prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court
584 D 583 C ii Inflictions may take many protean forms apart from physical assaults
Pushing the prisoner into a solitary cell denial of a necessary amenity and more dreadful sometimes transfer to a distant prison where visits or society of friends or relatives may be snapped allotment of degrading labour assignment to a desperate or tough gang and the like may be punitive in effect
Every such affliction or abridgement is an infraction of liberty or life in its wider sense and cannot be sustained unless article 21 is satisfied
There must be a corrective legal procedure fair and reasonable and effective
Such infraction will be arbitrary under Article 14 if it is dependent on unguided discretion unreasonable under article 19 if it is irremediable and unappealable and unfair under article 21 if it violates natural justice
Some prisoners for their own safety may desire segregation
In such cases written consent and immediate report to higher authority are the least if abuse is to be tabooed
584 F H 586 G iii Visit to prisoners by family and friends are a solace in insulation and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity
Subject of course to search and discipline and other security criteria the right to society of fellow men parents and other family members cannot be denied in the light of article 19 and its sweep
 586 H 17
Prison power absent judicial watch tower may tend towards torture
The judges are guardians of prisoners  rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates  personality
588 D 590 C 18
In a democracy a wrong to some one is a wrong to every one and an unpunished criminal makes society vicariously guilty
596 D 19
When offences are alleged to have taken place within the prison there should be no tinge or trace of departmental collusion or league between the police and the prison staff
605 A Directives for which no specific time limit fixed except the urgency of their implementation 1i The State shall take early steps to prepare in Hindi a Prisoner s Handbook and circulate copies to bring legal awareness home to the inmates
Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellowship which will ease tensions
561 A prisoners  wall paper which will freely ventilate grievances will also reduce stress
All these are implementary of section 61 of the 
601 DE ii The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations especially those relating to work and wages treatment with dignity community contact and correctional strategies
601 F iii The needs rehabilitation and the Prison Manual total over haul
A correctional cum orientation course is necessitous for the prison staff inculcating the constitutional values therapeutic approaches and tension free management
601 H iv The prisoners  rights shall be protected by the court by its writ jurisdiction plus contempt power
To make this jurisdiction viable free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the court such as for eg Free Legal Aid Supreme Court Society
The District Bar shall we recommend keep 2 cell for prisoner relief
602 A Per Pathak J concurring 1
The prisoner Prem Chand has been tortured while in custody in the Tihar Jail
605 D 2
The Superintendent of the jail to ensure that no punishment or personal violence is inflicted on Prem Chand by reason of the complaint made in regard to the torture
605 F 3
Pressing need for prison reform and provision for adequate facilities to prisoners to enable them not only to be acquainted with their legal riots but also to record their complaints and grievances and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the court having jurisdiction
605 G 4
Imperative that District Magistrates and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and where the matter lies within their powers make expeditious enquiry and take suitable remedial action
605 H 5
Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action
606 A 6
A statement by the Sessions Judge in regard to his visits enquiries made and action then thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within its jurisdiction
606 B