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Wednesday, October 5, 2016

over-crowding in prisons = the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities.”= Unfortunately, it seems that the views of this Court over the 50 years (since Prabhakar Pandurang Sangzgiri in 1966) have continuously fallen on deaf ears and the situation does not seem to be changing even now. Unless due importance is given to the fundamental rights and human rights of the people, the right to life and the right to live with dignity under Article 21 of the Constitution will have no meaning. Under these circumstances, we are constrained to direct the Union of India through the Ministry of Home Affairs to obtain the status of compliance of our orders passed on 5th February 2016 and 6th May, 2016 as on 30th September, 2016. The information should be collated by the Ministry of Home Affairs and shared with the learned Additional Solicitor General and the learned Amicus so that even the rights of prisoners, whether convicts or under trials are given due importance. The needful be done before the next hearing, that is 18th October, 2016.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                      WRIT PETITION (CIVIL) NO.406/2013



                RE - INHUMAN CONDITIONS IN 1382 PRISONS (II)



                                  O R D E R

Madan B. Lokur, J.

1.    By our order dated 5th February, 2016[1] we  had  drawn  attention  to
over-crowding in prisons and had given  directions  which  would  assist  in
reducing the prison population and generally improve the  living  conditions
of  prisoners.

2.    When this petition was listed on 14th March, 2016 we  had  noted  that
the   Ministry of Women and Child Development of  the  Government  of  India
had set up a Committee on 24th February, 2016 for drafting a Manual  similar
to the Prison Manual prepared  by  the  Ministry  of  Home  Affairs  of  the
Government of India concerning issues pertaining  to  juveniles  in  custody
either in Observation Homes or Special Homes or Places of  Safety  in  terms
of the Juvenile Justice (Care and Protection of  Children)  Act,  2015.   We
were informed that although the Committee was required to submit its  report
by 31st May, 2016 the time given was rather short.   We  were  in  agreement
with the Member Secretary of the Committee in this regard and had  expressed
the view that there was no need to show undue haste in  the  preparation  of
the Manual or produce a half baked document.   We  had  also  suggested  the
inclusion  of  representatives  from  academia  and  NGOs  in  the  drafting
process.
3.    The matter was again taken up on 6th May, 2016 when we  were  informed
by learned Amicus that the Manual for juveniles in custody would take  about
three months for completion. With regard  to  over-crowding  in  jails,  the
learned Amicus submitted that there are several  jails  where  over-crowding
is to the extent of more than 150%, meaning  thereby  that  there  are  more
than one and a half times the  number  of  prisoners  than  the  permissible
limit.  It was submitted that an excessive prison  population  has  its  own
problems of hygiene, sanitation, management, discipline etc. The problem  of
over-crowding cannot be looked at in isolation. He  submitted  that  in  the
first instance the States may be directed to identify jails in  which  over-
crowding is to the extent of 150% or more so that further  directions  could
be given.  On the basis of this submission we  called  for  information  and
now find that the situation  continues  to  be  not  only  tragic  but  also
pathetic.  Learned Amicus has  drawn  our  attention  vide  his  Note  dated
20.9.2016 to over-crowding to the extent of 150% or more in jails  in  Assam
(8), Chhattisgarh  (17),   Jharkhand  (3),   Karnataka  (7),   Kerala  (21),
Madhya Pradesh (5), Maharashtra (16), Rajasthan  (21),  Uttar  Pradesh  (47)
and Delhi (12).  It is unfortunate that  in  spite  of  our  directions  the
prison authorities have not been  able  to  take  any  effective  steps  for
reducing over-crowding in jails.
4.    On the submission of  the  learned  Amicus  for  issuance  of  further
directions, we had vide our order dated 6th May, 2016 expanded  the  mandate
of the under-trial Review Committee  to examine the  cases  of  under-trials
who fall in the following categories:
Become eligible to be released on bail under  Section  167(2)(a)(i)&(ii)  of
the Code read with Section  36A  of  the  Narcotic  Drugs  and  Psychotropic
Substances Act, 1985 (where persons accused of section 19 or section  24  or
section 27A  or  for  offences  involving  commercial  quantity)  and  where
investigation is not completed in 60/90/180 days;

Are imprisoned for offences which carry a maximum punishment of 2 years;

 Are detained under Chapter VIII of the Criminal Procedure Code  i.e.  under
Sections 107, 108, 109 and 151 of Cr.P.C.;

 Become sick or infirm and require specialized medical treatment  (S.437  of
the Code);

 Women offenders (S.437 of the Code);

Are first time male offenders between the ages 19 and 21 who  are  in  under
trial  custody  for  offences  punishable  with  less  than   7   years   of
imprisonment and have suffered  at  least  1/4th  of  the  maximum  sentence
possible;

Are of unsound mind and must be dealt under Chapter XXV of the Code;


Are eligible for release under Section 437(6) of  the  Code,  wherein  in  a
case triable by a Magistrate, the trial of a  person  accused  of  any  non-
bailable offence has not been concluded within a period of sixty  days  from
the first date fixed for taking evidence in the case;


5.    We had also required the States and the Inspector General  of  Prisons
to prepare a Plan of Action either to reduce  over-crowding  or  to  augment
the infrastructure so that there is more space available for each  prisoner.


6.    On the basis of the above, we heard learned counsel  for  the  parties
and the learned Amicus and find that more than sufficient time  has  elapsed
but the Manual for juveniles in custody has not yet  been  prepared  by  the
Ministry of  Women  and  Child  Development  of  the  Government  of  India.
Accordingly, we are left with no option but to direct the said  Ministry  to
expedite the  preparation  of  the  Manual  and  ensure  that  it  is  ready
positively on or before 30th November, 2016.

7.    We also find that not a single State or Union Territory  has  bothered
to prepare a Plan of Action and bring it to our notice or to the  notice  of
the learned Amicus. Consequently, we are left with no option but  to  direct
the States and the Inspector General of Prisons to prepare a Plan of  Action
as already directed on 6th May, 2016 for  reducing  the  prison  population.
In this context we may mention that the learned Amicus has  informed  us  on
the basis of affidavits  filed  by  some  of  the  States,  that  there  are
proposals for constructing additional barracks or jails but these appear  to
be ad hoc proposals with no time limit specified for completion and in  some
cases it is  not  clear  whether  provision  has  been  made  for  providing
resources for the construction.  A viable Plan of Action should be  prepared
within  the  next  six  months  and  in  any  event  by  31st  March,  2017.
Information in this  regard  should  be  given  to  the  learned  Additional
Solicitor General and the learned Amicus.
8.    We are a little distressed to note that even  though  this  Court  has
held on several occasions that prisoners  both  under  trials  and  convicts
have certain fundamental rights and human rights, little or no attention  is
being paid  in  this  regard  by  the  States  and  some  Union  Territories
including the National Capital Territory of Delhi.    Certainly  fundamental
rights and human rights of people, however they may  be  placed,  cannot  be
ignored only because of their adverse circumstances.  We  need  only  remind
the Union of India and the State Governments that as far  back  as  in  1975
this Court reminded us in  D.  Bhuvan  Mohan  Patnaik  v.  State  of  Andhra
Pradesh[2]  (referring to a decade old decision in State of  Maharashtra  v.
Prabhakar Pandurang Sangzgiri[3] ) that :
“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  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  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.”

9.    Similarly, a Constitution Bench of this Court held in Sunil  Batra  v.
Delhi Administration[4] in paragraph 213 of the Report as follows:
“It is no more open to debate that convicts are not wholly denuded of  their
fundamental rights. No iron curtain can be drawn between  the  prisoner  and
the Constitution.  Prisoners  are  entitled  to  all  constitutional  rights
unless their liberty has been constitutionally curtailed (see  Procunier  v.
Martinex[5]). However, a prisoner’s liberty is in the very nature or  things
circumscribed by the very fact of  his  confinement.  His  interest  in  the
limited liberty left to him is then all  the  more  substantial.  Conviction
for crime does not reduce the person into  a  non-person  whose  rights  are
subject to the  whim  of  the  prison  administration  and,  therefore,  the
imposition of any major punishment within the prison system  is  conditional
upon the observance of procedural safeguards (see Wolff v. McDonell.[6]).”

10.   There are a host of decisions rendered thereafter  by  this  Court  on
the same subject of the fundamental rights and human rights of convicts  and
under trial prisoners repeated every decade over the last so many years.  We
may mention only a few of them: Charles  Sobraj  v.  Supdt.,  Central  Jail,
Tihar,[7] Francis  Coralie  Mullin  v.  Administrator,  Union  Territory  of
Delhi,[8] Nilabati Behera v. State of Orissa[9] and D.K. Basu  v.  State  of
W.B.[10] More recently, in Mehmood Nayyar Azam v. State of  Chhattisgarh[11]
this Court observed in paragraph 38 of the Report as follows:
“It is imperative to state that it is the  sacrosanct  duty  of  the  police
authorities to remember that a citizen while in custody is  not  denuded  of
his  fundamental  right  under  Article  21   of   the   Constitution.   The
restrictions imposed have the sanction of law  by  which  his  enjoyment  of
fundamental right is curtailed but his basic human rights are  not  crippled
so that the police officers can treat him  in  an  inhuman  manner.  On  the
contrary, they are under obligation to protect his human rights and  prevent
all forms of atrocities.”

Unfortunately, it seems that the views of  this  Court  over  the  50  years
(since Prabhakar Pandurang Sangzgiri in 1966) have  continuously  fallen  on
deaf ears and the situation does not seem to be changing even now.
11.   Unless due importance is given to the  fundamental  rights  and  human
rights of the people, the right to life and the right to live  with  dignity
under Article 21 of the Constitution will have no meaning.
 12.  Under these circumstances, we are constrained to direct the  Union  of
India through  the  Ministry  of  Home  Affairs  to  obtain  the  status  of
compliance of our orders passed on 5th February 2016 and 6th  May,  2016  as
on 30th  September,  2016.   The  information  should  be  collated  by  the
Ministry of Home Affairs and shared with the  learned  Additional  Solicitor
General and the learned  Amicus  so  that  even  the  rights  of  prisoners,
whether convicts or under trials are given due importance.   The needful  be
done before the next hearing, that is 18th October, 2016.

                                                               ..……………………..J
                                                            (Madan B. Lokur)



                                                                  ………………………J
New Delhi;                                           (R.K. Agrawal)
October 3, 2016


-----------------------
[1]

      [2] (2016) 3 SCC 700
[3]
      [4] (1975) 3 SCC 185
[5]
      [6] AIR 1966 SC 424
[7]
      [8] (1978) 4 SCC 494
[9]
      [10] 40 L Ed 2d 224 at 248 (1974)
[11]
      [12] 41 L. Ed.2d 935 at 973 (1974)
[13]
      [14] (1978) 4 SCC 104
[15]
      [16] (1981) 1 SCC 608
[17]
      [18] (1993) 2 SCC 746
[19]
      [20] (1997) 1 SCC 416
[21]
      [22] (2012) 8 SCC 1


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