IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 16198 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SAIYED AMIN AKBAR MIYA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 16198 of 2003 MR TUSHAR MEHTA for Petitioner No. 1-9 MR AD OZA GOVERNMENT PLEADER for Respondent No. 1-2 MR JR NANAVATI for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: /05/2004 C.A.V. JUDGEMENT Nine jail inmates of Sabarmati Central Prison, situated at Ahmedabad, have jointly moved this writ petition invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India with reference to provisions of Articles 14 and 21 of the Constitution of India and have prayed that appropriate writ, direction or order may kindly be issued against the respondents/authorities in terms of relief prayed mainly in sub-paragraphs (B), (C), (D) and (E)(i) in paragraph 16 of the petition. 2 The counsel appearing for the parties are heard in piecemeal as the parties have attempted to clarify their stand qua the dispute raised by the petitioners by filing affidavit and counter affidavit at various stages and have also produced documents in support of their say expressed in the respective affidavits. I have gone through all the affidavits filed and the counsel appearing for the parties have also taken me through the relevant facts stated in the affidavit filed in this matter and they have taken me through the relevant legal provisions as well as the Government Resolutions, Circulars, issued by the State Government and the relevant part of Jail Manual. For brevity and convenience and with a view to appreciate the contentions raised by the parties, it would be proper to quote the relevant part of relief clause referred to hereinabove:- "(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents-Authorities to continue respondent No.3 on the post of Jail Superintendent, Sabarmati Central Prison, till the reformatory process undertaken by him is fully operative, functional and complete. (C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction appointing an independent officer to be selected by this Honourable Court with a direction to him to make a personal visit to the Sabarmati Central Prison and make a report and produce the report before this Honourable Court with respect to the conditions of the jail inmates in the Sabarmati Central Prison before and after posting of Respondent No.3. (D) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order dated November 17, 2003, at Annexure -"A"; (E) Pending the hearing and final disposal of the petition, this Honourable Court may be please to - (i) appoint an indepndent officer to be selected by this Honourable Court with a direction to him to make a personal visit to the Sabarmati Central Prison and make a report and produce the report before this Honourable Court with respect to the conditions of the jail inmates in the Sabarmati Central Prison before and after posting of respondent No.3" 3. The case of the petitioners: 3.1 The case of the present petitioners invoking the extraordinary writ jurisdiction of this Court centers around certain apprehensions and their anxiety to have protection of their fundamental rights guaranteed under Article 14 and 21 of the Constitution of India as under-trial and convicted persons. The backbone of the case is that these rights are sought to be encroached upon by the respondent-authorities with an oblique purpose and for that very purpose the "impugned order" dated 17th November, 2003 is passed whereby respondent no.3, Mr Sanjeev Bhatt, IPS Officer, who was Superintendent Central Prison, Sabarmati, having his office at jail bhavan, Keshavnagar, Sabarmati, Ahmedabad, came to be transferred. By this order of transfer at Annexure-A he was called back by the State Government under the services of Department of Home Affairs and Mr A.B. Makwana, in-charge Deputy Superintendent was directed to take over the charge as Superintendent and to hold the additional charge of the said post till further orders that may be passed by the Home Department. The petitioners nos.1 to 4 and 7 are convicts of various offences whereas petitioners nos.5, 6 and 8 are under-trial prisoners. Petitioners nos.1 to 4 are duly elected representatives by all the inmates undergoing imprisonment in Sabarmati Central Prison and they are members of the Committee constituted as per Rule 1226 of the Bombay Jail Manual, known as "Kedi Panchayat". The jailor and the Superintendent are supposed to consult the Committee in the matter of discipline and those relating to the general welfare of the prisoners. It is averred that petitioners nos.1 to 4 have filed this writ petition in the representative capacity i.e. on their own behalf and on behalf of all the jail inmates. It is also averred that they are entitled to lead the cause of all inmates undergoing imprisonment approximately 3000 in number, as other big prisons of the country. There are mainly three categories of prisoners in the jail, namely, (a) under-trial prisoners, (b) convicts and (c) detenus under various detention laws and they are all housed in separate yards and areas earmarked for their respective category. The say of the petitioners is that, as held by the Apex Court as well as by this Court in a catena of decisions, the prisoners are also entitled to the fundamental rights guaranteed not only under Article 14 but under Article 21 of the Constitution of India and they should be treated as human beings and mainly with all human dignity. The human rights recognised by law as well as by treaties are exercisable right but, it is an unfortunate experience of all the inmates that they are subjected to subhuman conditions of living. It is contended that all inmates were feeling humiliated with regard to very basic essentials for whom facilities like food, sanitation, barrack conditions, health and medical facilities, legal aid, sports facilities, and the jail inmates were being given less quantity of food than what is normally consumed and even compromising on quality also. But after posting of respondent no.3 as jail superintendent he started taking steps to redress the essential grievance and the persons started receiving palatable food in sufficient quantity which was fit for human consumption. They also experienced a change in attitude of jail staff and functioning of other authorities at various levels working under respondent no.3 as till then certain facilities were available to a chosen few because of rampant corruption at all levels in the jail staff and majority of jail inmates were feeling deprived of basic and essential human conditions which is held to be a concomitant part of Article 21 of the Constitution of India. They found radical change in the medical dispensary situated in the jail and jail hospital was always otherwise grossly inadequate. After resumption of the charge of respondent no.3 Shri Sanjeev Bhatt a marked improvement has taken place in the matter of medical assistance, which was achieved by respondent no.3 by ensuring that necessary drugs are available in the dispensary as the same were not available in the past. A large number of inmates who required specialised medical assistance, which is available only at Government Civil Hospital, were not getting adequate medical treatment and they used to suffer only because of apathy and indifference of the jail authorities as only selected inmates used to be referred to such medical assistance and Mr Bhatt took corrective steps which ensured the presence of a doctor and doctors were made available for the prisoners in the prison yard itself apart from being in the dispensary. It is averred that most of the inmates are illiterate persons and are coming from poor and backward class of society having no knowledge of law nor having any competent legal assistance. Large number of prisoners and under-trials who were not aware about the status of their matter pending in the respective court or in the higher forum against the orders of conviction were made aware of their respective rights and their right to have parole and furlough. Otherwise, such rights used to get lapse either because of their ignorance about the statutory provisions and the apathy and indifference on the part of the jail authorities. The entire system working in the jail administration in this regard was streamlined by respondent no.3 Mr Bhatt and he assured that each inmate gets competent legal justice within the jail premises itself by requesting some of the jail inmates, who were qualified lawyers before they are arrested or having good legal acumen because of their experience in life, to render immediate legal assistance and for the first time such inmates were made members of legal aid committee. It is further contended that though there is a system of Jail Superintendent taking rounds of the jail, such system was being complied with more in breach and even when they were on rounds there was no accessibility and the process was mainly mechanical. However, Mr Bhatt introduced a system in which he would visit each yard of the prison daily at a particular time and would personally meet each and every inmate and the inmates were feeling free to express their grievances before him and he used to deal with the same either immediately or at the earliest. The personal visit of the Jail Superintendent has brought about a vast change in the jail inmates as well as jail staff and on that count only the health and sanitation conditions in the barrack also improved substantially and the inmates realised that the system of taking rounds of each and every yard compulsorily has brought reformation. The say of the petitioners is that they are unable to give any illustrative details about the large number of jail reforms undertaken by respondent no.3 in conformity with the directions issued by the Honourable Supreme Court from time to time and to ensure protection of human rights of the prisoners and the protection of fundamental rights of prisoners guaranteed under Article 21 of the Constitution of India. According to the petitioners, the reformatory steps and the radical changes made by respondent no.3 were just the beginning and large number of such steps were under the way but, suddenly, the inmates were informed by the ground level staff of Sabarmati Prison that the respondent-authorities, namely, respondents nos.1 and 2 have transferred respondent no.3. The petitioners and the other inmates were shocked to learn about the order of transfer of respondent no.3 and started feeling of frustration and helplessness. A visitor who visited petitioner no.9 - Dinesh Karamsinh informed petitioner no.9 on the day prior to the filing of the petition that respondent no.3 has been transferred and ultimately the fact of transfer of respondent no.3 and the cause for the same had spread all through out the barracks and inmates and ultimately petitioner no.9 informed his visitor to approach this Court for the purpose of seeking protection of the human rights as well as fundamental rights of prisoners guaranteed under Article 21 of the Constitution of India. 3.2 In view of the allegations and counter allegations made by the parties and the stand taken by respondent no.3 in more than one affidavit filed by him clarifying his stand in the entire matter and considering the nature of the reliefs prayed in the petition and the response given by respondents nos.1 and 2, let me refer to paragraphs 11 and 12 of the petition, which read as under:- "11) .... The petitioner No.9 herein had a visitor yesterday, who was permitted an official visit to the petitioner No.9. When the visitor of the petitioner No.9 visited the petitioner 9 in the jail, the abovereferred facts have spread all throught the barrack and all the inmates are in a sense of frustration. The said feeling of all the inmates was conveyed by the petitioner No.9 to his visitor with a request to approach this Honourable Court for the purpose of seeking protection of the fundamental rights and human rights of the petitiones and other jail inmates. Since the frustration amongst the jail inmates is so severe that they have decided to stop accepting the food as they wanted to agitate their rights to live as human beings with the enjoyment of fundamental rights guaranteed under Article 21 of the Constitution of India. If the petitioners' fundamental rights are not protected, the inmates of the jail would be deprived of the reformatory process which is initiated by the respondent No.3. The petitioners state that Sabarmati Central Prison is an important jail as even POTA and TADA Courts hold their sittings inside the premises of the Sabarmati Central Prison. The petitioners are not aware nor they are concerned as to what vested interests have played their role if any in the impugned action of the sudden transfer of respondent No.3. However, the petitioners are only concerned with their human rights and fundamental rights on their behalf and on behalf of the jail inmates of Sabarmati Central Prison on whose behalf the present petition is filed. If this Honourable Court is pleased to direct an inspection of the Sabarmati Central Prison by an independent officer to be appointed by this Honourable Court is pleased to direct an inspection of the Sabarmati Central Prison by an independent officer to be appointed by this Honourable Court, the abovereferred facts would become glaringly clear and this Honourable Court would be able to appreciate the unfortunate living conditions and their improvement after resumption of office by the respondent No.3. 12 It is respectfully submitted that it is absolutely necessary that this Honourable Court is pleased to apprise itself by an indepndent enquiry to be conducted on the spot by a personal visit by an independent officer to be appointed by this Honourable Court, so that the abovereferred facts can be brought to the notice of this Honourable Court effectively. It is true that, normally, Commissions are ot appointed for the purpose of gathering facts to fortify the claim made by a litigant. However, in the peculiar facts of the present case, this Honourable Court may be pleased to appoint an independent officer to be selected by this Honourable Court with a direction to him to make a personal visit to the Sabarmati Central Prison and make a report and produce the report before this Honourable Court with respect to the conditions of the jail inmates in the Sabarmati Central Prison before and after posting of respondent No.3" 3.3 Though nine persons are the petitioners, four different vakalatnamas are produced in the petition of the learned counsel Mr Tushar Mehta and approximately 178 persons have signed these vakalatnamas. Mr Mehta has clarified that these signatures on vakalatnamas are not obtained with a view to create any show before the Court and also it should not be considered that the signatures are obtained to create any positive impression in the mind of Court nor the same should be treated negatively. 3.4 The learned counsel appearing for the petitioners on the day of the circulation of the present petition had prayed for ad interim relief in terms of paragraph (E)(ii) to stay and suspend the operation, implementation and enforcement of the impugned order of transfer of respondent no.3 and had prayed that respondent no.3 may be restrained from handing over the charge as Superintendent, Sabarmati Central Prison. On 18th November, 2003 this Court instead of granting aforesaid interim relief has passed the following order:- "Heard ld. counsel Mr. Tushar Mehta for the petitioners and ld. PP Mr. A.D. Oza for the State. Ld. counsel has taken me through the averments made in the memo of the petition. Considering the sensitivity averred in the petition and the fact that till this date, there is no alternative posting of the officer of equal cadre on the post referred to by the petitioner, respondent State can be served with notice so that State can clear its stand in the matter. The Court is also aware of the fact that in the matter of transfer, the Court should normally go very slow in dealing with the decision either of the State or of the State instrumentalities. Hence, notice would serve the purpose at this stage. Hence, notice to the respondents returnable on 20.11.2003. Mr A.D.Oza, ld. PP appears and waives service of notice for respondent no.1 State of Gujarat. Direct Service today is permitted qua respondent nos.2 & 3." On 18th November, 2004 the office of the Honourable Chief Justice of this court received a telegram sent through Naranpura Telegraph Office, Ahmedabad, which was booked at 11.35 hrs. and received at any time after 12.22 noon whereby one of the inmates Dhukh Madansinh informed this Court that he has proceeded on fast unto death. This telegram is placed on record on 19th November, 2003. During the course of the oral submissions, the counsel appearing for the petitioner has not disputed the genuineness of the telegram received by this Court. The contents of the telegram reveal that this Dhukh Madansinh was interested in getting the order of transfer of Mr Sanjeev Bhatt, respondent no.3, revoked but as I have not found from the legible signature of this Dhukh Madansinh in any of the four vakalatnamas filed, it would not be appropriate to make any comment thereon. 4 In response to the notice issued by this Court on 18th November, 2003 making it returnable on 20th November, 2003, a request for adjournment was made by learned G.P. Mr A.D.Oza on 20th November, 2003 and the matter was adjourned to 24th November, 2004. On 24th November, 2004 the reply affidavit on behalf of respondents nos.1 and 2 dated 21st November, 2004 has been tendered. The said affidavit-in-reply has been filed by one Mr V.M. Chauhan, Joint Secretary, Home Department, Jails, State of Gujarat, along with the documents referred in the affidavit. The stand of the respondents nos.1 and 2, in brief, is that the petition is misconceived and the documents accompanying the petition, if appreciated, it can reasonably inferred that the same is filed at the behest of respondent no.3, Mr Sanjeev Bhatt, who has been transferred from Sabarmati Central Jail, Ahmedabad. Substantially, the order of transfer has been challenged by the petitioners. Otherwise, the copy which was endorsed by the Government to respondent no.3 could not have been produced as one of the annexures with the petition, that is, Annexure-A. The petitioners must have been supplied with the copy of the impugned transfer order at respondent no.3. When the transfer is an incident of service, it was otherwise difficult for respondent no.3 to challenge the order of his transfer as it was passed for administrative reasons and the same does not suffer from any illegality or infirmity. The attempt has been made by respondent no.3 to get his transfer order stayed and the order of transfer cannot be said to have violated or contravened any of the rights of the petitioners. According to respondents nos.1 and 2 the petitioners have no right either constitutional or statutory - to say that they are entitled to have a particular person as the Superintendent of Central Jail or to request the Government to continue or to have any relief from this Court which would bind the Government to a particular person as Superintendent of a particular jail. The averments notwithstanding phrase "right to life" guaranteed by Article 21 of the Constitution of India made by the petitioners are absurd and under this alleged right they cannot get the relief to continue to have a particular person posted as the Superintendent of the Jail. When the order of transfer is perfectly legal and when the same is not challenged by the concerned officer in any manner directly before this Court, none of the reliefs as prayed for in paragraph 16 of the petition can be granted. The order of transfer of respondent no.3 is passed pursuant to the decision taken by the authority who is competent to transfer respondent no.3 and respondent no.3 is holding a transferable post and as the said transfer is in public interest, it is neither violative of any statutory rule nor was passed mala fide. The decision of transfer was not taken by the authority as a "punitive measure" but it was in the interest of the administration and with a view to ensure that no further damage is done to the order of discipline of Sabarmati Central Jail. Thus, there is no contravention of Article 14 of the Constitution of India. The State has averred in the affidavit that the competent authority is willing to place the original file containing the relevant record and papers before the court for perusal. There is no locus for the petitioners to challenge the order of transfer at Annexure-A. On the contrary, the State has made the grievance in paragraph 6 of the affidavit that it would be wrong to create an impression that there will be complete vacuum in the administration and reforms if respondent no.3 is shifted from Sabarmati Central Jail. On the contrary, various steps taken by respondent no.3 after his posting as a Superintendent of Sabarmati Central Jail in September, 2003 cannot be treated as a step "reformatory" in nature. On the contrary, number of steps taken by respondent no.3 as listed by the petitioners are contrary to the provisions of law and rules. On the contrary, some decisions are apparently look like a decision taken under some whims and as the petitioners were the beneficiaries of such illegal and unauthorised measures taken as per whims of respondent no.3, the have taken up the cause of respondent no.3 with a request to interfere with the order of transfer. Jail Superintendent is under obligation to perform various duties and functions which are prescribed and enumerated in Bombay Jail Manual ( as applicable in the State of Gujarat ) and it is not open to any Jail Superintendent to flout those statutory obligations. It is the say of respondents nos.1 and 2 that during the short tenure of approximately two months as Jail Superintendent, respondent no.3 has observed the statutory functions more in breach than in compliance. Each liberal action has been taken by the petitioners as "jail reforms". The allegation of the State is that respondent no.3 has done disservice to the jail discipline and safety. It is averred that during the past six months from the date of filing of the petition various committees and important persons have visited the Sabarmati Jail and without any exception all of them have expressed their satisfaction as to the conditions prevailing in the Sabarmati Central Jail and the State has heavily relied upon the Visitors' Register and the entries made therein for the last six months. It is submitted that during the period between December, 1996 and August, 2000 there were as many as six officers of IPS rank were holding the post of Sabarmati Central Jail at different point of time. The steps taken by respondent no.3 during his tenure as Superintendent of Sabarmati Central Jail cannot be termed as "reforms" but some of the steps are contrary to the established