JUDGEMENT
-
(1.)This writ petition has its origin in a letter dated 12-4-1984 by a prisoner of Central Jail, Bangalore (one Rama Murthy) to the Hon'ble Chief Justice of this Court making grievance about some jail matters. The letter was ordered to be treated as a writ petition and Court proceedings followed which are being wound up by delivering this judgment.
(2.)The epistolatory power had been invoked earlier also in a similar matter when Sunil Batra had written a letter to an Hon'ble Judge of this Court from Tihar Jail, Delhi. The judgment in his cases and that of Charles Shobraj are such which can be said to be beacon lights insofar as management of jails and rights of prisoners are concerned. This Court in these judgments [(1) Charles Sobraj v. Superintendent Central Jail, Tihar, AIR 1978 SC 1514 : 1979 (1) SCR 512; (2) Sunil Batra (1) v. Delhi Administration, AIR 1978 SC 1675 : 1979 (1) SCR 392 and (3) Sunil Batra (II) v. Delhi Administration AIR 1980 SC 1579) : 1980 (2) SCR 557 ] on being approached either through formal writ petitions or by addressing letter, which was treated as a writ petition, has laid bare the constitutional dimension and rights available to a person behind stone walls and iron bars.
(3.)These are not the only decisions on the question of rights of prisoners and approach to be adopted while dealing with them as there are many other renderings of this Court which deal with some other aspects of prison justice. A brief resume of earlier decisions would be helpful to tread the path further. The resume reveals this :-
(1) In State of Maharashtra v. Prabhakar, AIR 1966 SC 424 : (1966) 1 SCR 702, and of Article 21 was made available perhaps for the first time to a prisoner while dealing with the question of his right of reading and writing books while in jail.
(2) Suresh Chandra v. State of Gujarat, (1976) 2 SCC 654 : (AIR 1976 SC 2462) and Krishan Lal v. State of Bihar, (1976) 1 SCC 655 : (AIR 1976 SC 1139) saw this Court stating about penological- innovation in the shape of parole to check recividism because of which liberal use of the same was recommended.
(3) A challenge was made to the segregation of prisoners in Bhuyan Mohan Pattnaik v. State of Andhra Pradesh. AIR 1974 SC 2092 : (1975 2 SCR 24 and a three Judge bench stated that resort to oppressive measures to curb political beliefs (the prisoner was a Naxalite because of which he was put in a 'quarantine' and subjected to inhuman treatment) could not be permitted. The Court, however, opined that a prisoner could not complain of installation of High-volt live wire mechanism on the jail walls to prevent escape from prisons, as no prisoner has fundamental right to escape from lawful custody.
(4) In Charles Sobraj (AIR 1978 SC 1514) it was stated that this Court would intervene even in prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of a prisoner. In that case the complaint was against incarceratary torture.
(5) Sunil Batra (1) (AIR 1978 SC 1675), dealt with the question whether prisoners are entitled to all constitutional rights apart from fundamental rights. In that case this Court was called upon to decide as to when solitary confinement could be imposed on a prisoner. In Kishor Singh v. State of Rajasthan, AIR 1981SC 625 : 1081 (1) SCC 508, also the Court dealt with the parameters of solitary confinement.
(6) Prem Shankar v. Delhi Administration, AIR 1980 SC 1535 : 1980 (3) SCI 855 and Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939 (1981)3 SCC 671, prohibited putting of undertrial prisoners in leg-irons.
(7) In Sunil Batra (II) (AIR 1980 SC 1579), the Court was called upon to deal with prison vices and the judgment protected the prisoners from these vices with the shield of Article 21, Krishna Iyer, J, stated that "prisons are built with the stones of law".
(8) A challenge was made to a prison rule which permitted only one interview in a month with the members of the family or legal advisor in Francis Goralic v. Union Territory of Delhi, AIR 1981 SC 746 : (1981) 2 SCR 516 and the rule was held violative, inter alia of Article 21.
(9) In series of cases, to wit, Veena Sethi v. State of Bihar, AIR 1983 SC 339 : 1982 (2) SCR 583; (ii) Sant Bir v. State of Bihar, AIR 1982 SC 1470: (1822) 3 SCC 131 and (ii) Sheela Barse v. Union Territory, (1993) 4 SCC 204 : (1993 AIR SCW 2908), this Court was called upon to decide as to when an insane person can be detained in a prison. In Sheela Barse it was held that jailing of non-criminal mentally ill persons is unconstitutional and directions were given to stop confinement of such persons.
It would be of some interest to point that in Sheela Barse an order was passed to acquaint the Chief Secretaries of every State with the decision and he was directed to furnish some information to the Standing Counsel of his State. On being found that State of Assam had not complied with the order, this Court appointed Sr. Advocate Shri Gopal Subramanium as its Commissioner by its order dated 13-5-1994 to have discussion with the Chief Secretary of that State and to ensure immediate obedience of the orders passed in that case, Shri Subramanium's voluminous report dated 15-9-1994 running into 532 pages tells a story too wet for tears. All concerned were found ignorant of the decision in Sheela Barse which was rendered in August 1993: and what is more a disturbing nexus between the judiciary, the police and the administration came to light. This was said to have led to a most shocking state of affairs negating the very basis of the existence of human life.
We do hope that by now all the States of the country must have acted as per the directions in Sheela Barse (1993 AIR SCW 2908).
(10) The judicial work done by this Court on the subject at hand would not be complete without mentioning what was held in Mohammad Glasuddin v. State of Andhra Pradesh. AIR 1977 SC 1926: (1978) 1 SCR 153, because in that case reformative aspect was emphasised by stating that the State has to rehabilitate rather than avenge. Krishna Iyer, J. speaking for a two-Judge Bench, pointed out that the "sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturalisation."
(11) On top of all there is the undoubted right of speedy trial of undertrial prisoners, as held in a catena of cases of this Court, reference to which is not deemed necessary. Mention may only be made of the further leaves added to this right. These consist of ordering for release on bail where trial is protracted. The first decision in this regard is by a two-Judge bench in Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, (1994) 6 SCC 731 (1994 AIR SCW 5115) wherein the bench was concerned with the detention of large number of persons in jail in connection with various offences under Narcotic Drugs and Psychotropic Substances Act,1985. The Court, after noting the stringent provisions relating to bail as incorporated in that Act, directed for release of those undertrial prisoners who were languishing in jail for a period exceeding half of the punishment provided in the Act. This decision was cited with approval by another two-Judge Bench in Shabeen Welfare Association v. Union of India, (1996) 2 SCC 616 : (1996 AIR SCW 1161), in which harsh provisions of TADA were borne in mind and the bench felt that a pragmatic and just approach was required to be adopted to release TADA detenues on bail because of delay in conclusions of trials. The Bench classified these undertrials in four categories and passed different orders relating to their release on bail.
More comprehensive view was adopted in two later decisions - these being, (i) FD Upadhyay v. State of Andhra Pradesh, (1996) 3 SCC 422; and (ii) "Common Cause" v. Union of India, 1996 (4) SCC 33 : (1996 AIR SCW 2279). The first of these cases dealt with undertrial prisoners lodged in Tihar Jail and directions were given to release them on bail depending upon the type of offences alleged against them on the completion of period mentioned in the judgment. The second case is more general inasmuch as it dealt with undertrial prisoners lodged in various jails of the country. The bench directed for their release on conditions laid down in the order. It was stated that directions shall be valid in all the States in Union Territories and would apply not only, to pending cases but also to future cases. The directions were, however, not made applicable to certain classes of cases mentioned in the order.