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
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
