INHUMAN CONDITIONS IN 1382 PRISONS I.A. NO. 26542 OF 2018 IN WRIT PETITION (CIVIL) NO. 406 OF 2013 versus .
[2018] 14 S.C.R. 1230, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Issues
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RE : INHUMAN CONDITIONS IN 1382 PRISONS
I.A. No. 26542 of 2018
IN
Writ Petition (Civil) No. 406 of 2013
DECEMBER 13, 2018
[MADAN B. LOKUR, S. ABDUL NAZEER AND
DEEPAK GUPTA, JJ.]
Prisons Act, 1894 – Rights of prisoners on death row – Held:
Convict on death row is entitled to have meetings with his immediate
family members, lawyers or even mental health professionals – Such
convict is entitled to move within the confines of the prison like any
other convict undergoing rigorous imprisonment, however, certain
restrictions may be necessary for security reasons, but even then, it
would be necessary to comply with natural justice provisions with
an entitlement to file an appeal – All other issues left open for
consideration by the Justice Amitava Roy Committee – Committee to
look into the issues raised in the present application in greater depth
– Constitution of India – Arts. 14 and 21.
Prisons Act, 1894 – s.30 – Prisoner, when a death row
prisoner – Held: A prisoner can be said to be a death row prisoner
when his sentence is beyond judicial scrutiny and would be operative
without any intervention from any other authority.
Sunil Batra v. Delhi Administration and others (1978)
4 SCC 494 : [1979] 1 SCR 392 – followed.
Sunil Batra (II) v. Delhi Administration (1980) 3 SCC
488 : [1980] 2 SCR 557 ; Kishore Singh Ravinder Dev
v. State of Rajasthan (1981) 1 SCC 503 : [1981] 1 SCR
995 ; Frances
Coralie Mullin v. Administrator, Union
Territory of Delhi (1981) 1 SCC 608 : [1981] 2 SCR
516 ; Rakesh Kaushik v. B.L. Vig (1980) Suppl. SCC
183 : [1980] 3 SCR 929 – relied on.
Case Law Reference
[1979] 1 SCR 392
followed
Para 5
[1980] 2 SCR 557
relied on
Para 6
[2018] 14 S.C.R. 1230
1230
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[1981] 1 SCR 995
relied on
Para 6
[1980] 3 SCR 929
relied on
Para 8
[1981] 2 SCR 516
relied on
 Para 10
CIVIL ORIGINAL JURISDICTION : Interlocutory Application
No. 26542 of 2018 in Writ Petition (Civil) No. 406 of 2013
(Under Article 32 of the Constitution of India)
Gaurav Agrawal, A.C.
A. N. S. Nadkarni, ASG, Ms. Aparna Bhat, Ms. Shivangi Singh,
Yash V., R. M. Bajaj, Ms. Binu Tamta, R. Bala, Ms. Sushma Manchanda,
Ms. Suhasini Sen, Ms. Aarti Sharma, G. S. Makker, B. V. Balram Das,
Raghavendra Mohan Bajaj, Guntur Prabhakar, Ms. Prerna Singh, Anil
Shrivastav, Rituraj Biswas, Satyendra Kumar Srivastav, Shuvodeep Roy,
Somnath Banerjee, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha,
Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh, Tapesh Kumar
Singh, Kumar Anurag Singh, Aditya Pratap Singh  V.N. Raghupathy,
Lagnesh Mishra, Parikshit P. Angadi, C. K. Sasi, Ms. Nayantara Roy,
Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar, Leisangthem
Roshmani Kh., Maibam Babina, Ms. Anupama Ngangom, Ranjan
Mukherjee, K. V. Kharlyngdoh, Daniel Stone Lyngdoh, K. N.
Madhusoodhanan, Ms. Nitya Madhusoodhanan, T. G. Narayanan Nair,
Rajesh  Srivastava,  Mrs. K. Enatoli Sema,  Amit Kumar Singh Anindita
Pujari, Ms. Aarti Krupa Kumar, Amit Sharma, Ankit Raj, Ms. Indira
Bhakar, Ms. Nidhi Jaswal, Ms. Ruchi Kohli, Ms. Aruna Mathur, Avneesh
Arputham, Ms. Anuradha Arputham, Ms. Geetanjali for M/s Arputham
Aruna & Co., Shuvodeep Roy, Rituraj Biswas, M. Yogesh Kanna, Mrs.
Sujatha Bagadhi,
S. Partha Sarathi, P. Venkat Reddy, Prashant Tyagi for
M/s Venkat Palwai Law Associates, Rajan Kumar Chourasia, Jitendra
Kumar Tripathi, Harish Pandey, Ms. Rachana Srivastava, Ms. Monika,
Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, Abhishek Manchanda,
Ms. Kajal Dalal, Ms. Dimple Nagpal for M/s PLR Chambers, K. V.
Jagdishvaran, Mrs. G. Indira, V. G. Pragasam, S. Prabu
Ramasubramanian, S. Manuraj,  T. N. Rama Rao, Hitesh Kumar Sharma,
Mrs. T. Veera Reddy, Advs. for the appearing parties.
RE : INHUMAN CONDITIONS IN 1382 PRISONS
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The Order of the Court was passed by
MADAN B. LOKUR, J
1. This application for directions and declarations has been filed
in which it is prayed, inter alia, that prisoners sentenced to death by any
court have a right to be treated at par with other convicted prisoners and
should be provided all similar facilities as are provided to other prisoners.
It is also prayed that solitary confinement of prisoners on death row or
their separate and cellular confinement be struck down as
unconstitutional.
2. We do not think it necessary to go into all the issues raised in
the application but find it necessary to place in perspective certain aspects
of the rights of prisoners.
3. One of the important questions before us is: When could it be
said that a convict is under the sentence of death? Could it be said that
when the Trial Court convicts a prisoner and sentences him to death,
then that prisoner is a death row prisoner? Or, could it be said that when
the death sentence is beyond judicial scrutiny, that is after the sentence
is upheld by this Court, the mercy petition is rejected and a challenge to
the rejection is dismissed, then the prisoner is a death row prisoner?
4. It was submitted by the learned Amicus that even after the
convict is sentenced to death by the Trial Court, he is entitled to be
treated and dealt with like any other convicted prisoner and is therefore
entitled to the
opportunity to work on voluntary basis. The convict is also
entitled to other facilities such as participating in educational programmes,
vocational training and skill development as well as other institutional
facilities available to other convicted prisoners.
5. The issue must be considered in a humanitarian and
compassionate manner. That apart the law laid down by this Court in
Sunil Batra v. Delhi Administration and others1 is quite clear. It has
been held in paragraph 223 of the Report that a prisoner under sentence
of death can only mean a prisoner whose sentence of death has become
final, conclusive and indefeasible and which cannot be annulled and voided
by any judicial or constitutional procedure. In other words, a prisoner
can be said to be a prisoner on death row when his sentence is beyond
judicial scrutiny and would be operative without any intervention from
any other authority. Till then, such a prisoner cannot be said to be under
a sentence of death in the context of Section 30 of the Prisons Act,
1(1978) 4 SCC 494
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1894. That being the position, as also mentioned in paragraph 101 of the
Report, a prisoner is entitled to every creature comfort and facilities
such as bed and pillow, opportunity to commerce with human kind, writing
material, newspapers, books, meeting with family members etc.
6. The above view has been reiterated in Sunil Batra (II) v.
Delhi Administration2 in paragraph 42 of the Report and in Kishore
Singh Ravinder Dev v. State of Rajasthan3 in paragraphs 10 and 13 of
the Report. In paragraph 10 of the Report in Kishore Singh, it was held
that there is no difference between a separate cell and solitary
confinement. Therefore, a convict on death row is entitled to move within
the confines of the prison like any other convict undergoing rigorous
imprisonment. However, certain restrictions may be necessary for
security reasons, but even then, it would be necessary to comply with
natural justice provisions with an entitlement to file an appeal.
7. Paragraph 10 reads as follows:
“10. We cannot agree that either the Section or the Rules can be
read in the absolutist expansionism the prison authorities would
like us to read. That would virtually mean that prisoners are not
persons to be dealt with at the mercy of the prison echelons. This
country has no totalitarian territory even within the walled world
we call prison. Articles 14, 19 and 21 operate within the prisons in
the manner explained in Sunil Batra (I) [ Under Article 32 of the
Constitution] , by a
Constitution Bench of this Court. It is significant
that the two opinions given separately in that judgment agree in
spirit and substance, in reasoning and conclusions. Batra in that
case was stated to be in a separate confinement and not solitary
cell. An identical plea has been put forward here too. For the
reasons given in Sunil Batra (I) case [ Under Article 32 of the
Constitution] we must overrule the extenuatory submission that a
separate cell is different from solitary confinement. The
petitioners will, therefore, be entitled to move within the
confines of the prison like others undergoing rigorous
imprisonment. If special restrictions of a punitive or harsh
character have to be imposed for convincing security reasons, it
is necessary to comply with natural justice as indicated in Sunil
Batra (J) case [ Under Article 32 of the Constitution]. Moreover,
there must be an appeal not from Caeser to Caeser, but from a
2(1980) 3 SCC 488
3(1981) 1 SCC 503
RE : INHUMAN CONDITIONS IN 1382 PRISONS
[MADAN B. LOKUR, J]
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prison authority to a judicial organ when such treatment is meted
out.” (Emphasis supplied by us).
8. In paragraph 13 of the Report in Kishore Singh, it was directed
that the rulings of this Court in the cases of Sunil Batra and Rakesh
Kaushik v. B.L. Vig4 on prison administration be converted into rules
and instructions forthwith so that violation of prisoners’ freedom can be
avoided and habeas corpus litigation may not proliferate. Paragraph 13
of the Report reads as follows:
“13. We find that the old rules and circulars and instructions issued
under the Prisons Act are read incongruously with the Constitution
especially Article 21 and interpretation put upon it by this Court.
We, therefore, direct the State Government of Rajasthan
— and indeed, all the other State Governments in the
country — to convert the rulings of this Court bearing on
Prison Administration into rules and instructions forthwith
so that violation of the prisoners’ freedoms can be avoided
and habeas corpus litigation may not proliferate. After all,
human rights are as much cherished by the State as by the citizen.”
(Emphasis supplied by us).
9. In our opinion, the decisions of this Court have quite clearly
defined when a prisoner could be said to be on death row and have also
taken care of the rights of prisoners on death row as well as those who
are a security risk. No further elucidation is necessary.
10. With
regard to the entitlement of a prisoner on death row to
have meetings and interviews with his lawyers or members of his
immediate family or even mental health professionals, we are of opinion
that such meetings and interviews should be permitted. We follow the
view expressed by this Court in Frances Coralie Mullin v.
Administrator, Union Territory of Delhi5. In paragraph 8 of the Report,
it was specifically noted by this Court, after referring to the Universal
Declaration of Human Rights and the International Covenant on Civil
and Political Rights that as a part of the right to live with human dignity,
a prisoner is entitled to have interviews with members of his family and
friends and no prison regulation and procedure to the contrary can be
upheld as being constitutionally valid under Articles 14 and 21 of the
Constitution unless it is reasonable, fair and just. Similarly, there cannot
41980 Supp SCC 183
5(1981) 1 SCC 608
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be any doubt that a prisoner must be entitled to have discussions with his
lawyers so that he has effective legal representation and access to justice
as well as remedies for justice. In our opinion, the law laid down by this
Court in Frances Coralie Mullin would be equally applicable to death
row prisoners for meeting mental health professionals for a reasonable
period of time with reasonable frequency so that their rights can be
adequately protected at all stages.
11. We make it clear that we have only reiterated the law laid
down by this Court over several decades and which is based not only on
the provisions of our Constitution but is also in conformity with international
instruments. As held by this Court, the rights of prisoners as enunciated
by this Court would be available not only in a particular State but would
be available to them in all the States and Union Territory Administrations
across the country. Accordingly, the State Governments and Union
Territory Administrations must modify the prison manuals, regulations
and rules accordingly.
12. We request the Justice Amitava Roy Committee to look into
all the issues raised in the application in greater depth in addition to its
Terms of Reference.
13. Since we are leaving all other issues open for consideration
by the Justice Amitava Roy Committee, the applicant is at liberty to
assist the Justice Amitava Roy Committee in this regard.
14. The application is disposed of.
Divya Pandey
Application
disposed of.
RE : INHUMAN CONDITIONS IN 1382 PRISONS
[MADAN B. LOKUR, J]