CHARLES SOBRAJ v. THE SUPTD .• CENTRAL JAIL. TIHAR. NEW DELHI

parrot-cry of discipline will not deter, of security will not scare, of discretion will not dissuade, the judicial process. For if courts 'cave in' when great rights are gouged within the sound-proof, sight-proof precincts of prison houses, where, often, dissenters and minorities are tyranny begins; caged, Bastilles will be re-enacted. When law ends and history whispers, iron has never been the answer to the rights of men. Therefore we affirm that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by a citizen. This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution. Art. 21, read with Art. 19(1) (d) and (5), is capable of wider application than the imperial mischief which gave its birth and must draw its meaning from the evolving standards of decency and dignity the progress of a mature society, as Batra and Sobraj have underscored and the American Judges have highlighted.

Fair proce dure is the soul of Art. 21, reasonableness of the restriction is the essence of Art. 19(5) and sweeping discretion degenerating arbilrary discrimination is anathema for Art. 14. Constitutional karuna is thus injected into incarceratory strategy to produce prison justice. And as an annotation of Art. 21, this Courli has adopted, Kharak Singh's case(') that expanded connotation of 'life' given by Field, J. which we quote as reminder: "Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruc- tion of any other organ of the body through which the soul communicates with the outer world". The next axiom of prison justice is the court's continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified. lt is a sort of solemn covenant running with the power to sentence.

The U.S. Courts have intensified their oversight of State penal facilities reflecting a heightened concern with the extent to- which the ills that plague so-called correctional institutions violate basic rights, points out Edward S. Crowin. ('). Although, the learned author, and, -·-~---- {!) [1964J I SCR 357. 1'2) Supplement to Edward S. Corwin's means Today; I 976 Edn. p. 245. 'The Constitution• and What it • the Eighth indeed, the decisions show that reliance is placed on Amendment, as we have earlier pointed out, the sensitized attention and protective process emanate from the humane provisions of Part III of our Constitution. Viewed differently, supJJO§ing a court sentences a person to simple imprisonment or assigns him 'B' class treatment and the jail autho rities unwittingly or vindictively put him under rigorous imprison ment or subject him to 'C' class treatment, does it not show contempt of the court's authority and deprivation of li11erty beyond a degree validated by the court warrant ? Likewise, where a prisoner is sub jected to brutality, exploiting the fact that he is helplessly within the custody of the Jail Administration, does it not deprive the prisoner of his life and liberty beyond the prescribed limits set by the court?

Yet again, where conditions within a prison are such that inmates incarcerated th~rein will inevitably and necessarily become more sociapathic than they were prior to the sentence, is not the court's punitive purpose, charged with healing hope, stultified by the prison authorities? Of course, where a prison practice or internal instruc tion places harsh restrictions on jail life, breaching guaranteed rights, ihe court directly comes in. Every prison sentence is a conditioned deprivation of life and liberty, with civilised norms built in and un limited trauma interdicted. In this sense, judicial policing of prison practices is implied in the sentencing power. The Criminal judiciary have tlms a duty to guardian their sentences and visit prisons when necessary. Many of them do not know or exercise this obligation. F G H Another jurisdictional facet may be touched upon in view of the widely worded relief sought to treat Sobraj 'in a human and dignified manner, keeping in view the adverse effect. of his confinement upon his mental and physical conditions'.

The penologica\ goals which may be regarded as reasonable jusiifieation for restricting the rigl1t to move freely within the confines of a penitentiary are now well-settlep. And if prisoners have title to Article 19, 21 and 14 rights, subject to the limitation we have indicated, there must be some correlation between deprivation of freedom and the legitimate functions of a correctional system. It is now well-settled, as a stream of rulings of courts proves, that deterrence, both specific and general, rehabilitation and instir tutional security are vital considerations. Compassion wherever possi-· ble and cmelty only where inevitable is the art of correctional con finement. When prison policy advances such a valid goal, the court will not inervene officiously. j ' • CHARLES SOBRAJ v. SUPDT. CENTRAL JAIL (Krishna Iyer, J.)517 , This overall attitude was incorporated as a standard by American National Advisory Commission on Crimine Justice Stand- ards and Goals : - the A ,, . . . . . . A rehabilitative purpose is or ought to be implicit in every sentence of an offender unless ordered otherwise by the sentencing court".(') The U.S. Supreme Court summed up: "In a series of decisions this court has held that. even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.

The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving tl1e same basic purpose. "(') refused then also But when an inmate is cruelly restricted in a manner which sup ports no such relevant purpose, the restriction becomes unreasonable and arbitrary, and unconstitutionality is the consequence. Traumatic futility is obnoxious to pragmatic legality. Social defence raison d'etre of the penal code and bears upon judicial control over If a whole atmosphere of constant fear of prison administration. violence. frequent torture and denial of opportunity improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are humane jurisdiction of the court will become operational based on Art. 19: Other forms of brutal tmreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in a penal system but we wish to lay down only a broad guideline tliat where policies, with a 'Zoological touch', which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in reha bilitation, the court is not helpless.

Hom; ver, a prison system may make rational distinctions in making assignments to inmates of voca tional, educational and work opportunities available hut it is consti tutionally impermissible to do so without a functional clas!ification system. The mere fact tl1at a prisoner is poor or rich, high-born or ill bred, is certainly irrational as a differential in a 'secular socialist republic'. Since the petitioner charges the jail staff with barbaric and inhuman treatment in prison we are called upon broad boundaries of _judicial jurisdiction vis-a-vis prison administration and prisoner's rights. to delineate (1) "To solve the age-old Problem of Crime" Roger Lanphear, J. D. p-19. (2) Ibid p. 21 a: c I G H The court is reluctant to intervene in the day-to-day tion of the State penal system; but undue harshness and avoidable · tantrums, under the guise of discipline and security, gain no i111niu all rights nity frum court writs.

The reason is, prisoners enjoyed by free citizens except those lost necessarily as an incident of confinement. Moreover, the rights enjoyed by prisoners under Articles 14, 19 and 21, though limited, are not static and will rise to human heiihts when challenging situations arise. Cooper(') an'! Maneka Gandhi(') have thus compulsive conseguercc benignant to prisoners. retain The petitioner in the present case has contended that barbaric and inhuman treatment have been hurled at him and that intentional discrimination has been his lot throughout. These allegations invit ed us to examine the limits and purpose of judicial jurisdiction but we have to apply the principles so laid down to the facts of present case. Starry abstractions do not make sense except in the context of concrete facts. That is why we agree with the propositions of law urged by Dr. Ghatate but disagree with the distre» and discrimina tion his client wails about.. True, confronted with cruel conditions of confinement, the court has an expanded role.

True, the light to life is more than mere animal existence, or vegetable subsistence. (') True, the worth of the human person and dignity and divinity of every individual inform articles 19 and 21 even in a prison setting. True, constitutional provisions and municipal laws must be interpretc ed in the light of the normative Jaws of nations, wherever possible and a prisoner does not forfeit his Part III rights. But what are the facts here ? Charles Sobraj is no longer an under-trial, having to s~rve two sentences of long imprisonment. He is given all the amenities of a 'B' class prisoner. He goes on hunger strike but medical men take care of him. Ward I, where he is lodged, gives him the facili ties of wards XIII and XIV where he wants to be moved. He has a record of one escape and one attempt at suicide and Interpol reports of many crimes abroad. There are several cases . pending in India against him.

Even so, the barbarity of bar fetters inflicted on him by a qualmless jail staff was abandoned under orders -of this Court. Now. he seeks the other extreme of coddling as if a jail were a country club or good hotel. Give me finer foreigners as companions, he demands. Don't keep convict cooks and warders as (I) [1971] (2) [1978] (3) Mohammed Giasuddin v. State of Andhra Pradesh, [I 978] 1 SCR l SJ. I SCR 512. I SCR 248 • CHARLES SOBRAJ V. SUPDT. CENTRAL JAIL (Krishna [yer, J.) 5 !!} jail mates in my cell he rails. Remove me from a high security . A ward like Ward I to a more relaxed ward like Ward 14 or 13, he solicits. These delicate and genteel requests from a prisoner with his record and potential were turned down by the Superintendent and the reasons for such rejection, based ou security, rules allergy of other inmates to be his risky fellow-inmates have been stated on oath. We cannot be critical of the Administration makes a classification between dangerous prisoners and ordinary In the present case, the Superintendent swears, and it is prisoners. undisputed, that the petitioner is not under solitary confinement.

We further aver that a distinction between under-trials and convicts In fact, lazy re is reasonable and the petitioner is now a convict. laxation on security is a professional risk inside a prison. if it B c • The court must not rush in where the jailor fears to tread. While the country may not make the prison boss the sole sadistic arbiter of incarcerated humans, the community may be in no mood to hand over central prisons to be run by courts. Each instrumentality must function withiu its proviuce. We have no hesitation to hold reform, he has while Sobraj has done litigative service for prison signally failed to substantiate any legal iujury. We, therefore, dis miss the writ petition, making it clear that strictly speaking petitioner being a foreigner cannot claim rights under Art. 19, but we have discussed at some length the import of Articles 14, 19 and 21 because they are interlaced and in any case apply Indian citizens. D E S.R . Petition dismissed. ••