KISHOR SINGH RAVINDER DEV ETC v. STATE OF RAJASTHAN

"We appoint Shri P. H. Parekh ;!S amicus curiae. - - - - - - (!) [1979) 1 S.C.R. 392. • < K!SHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) If the petitioner is in solitary confinement, he will be released from solitary confinement forthwith in the light of the decision of this Court in Sunil Batra's case. The Superintendent of the Central Jail concerned will report' to this Court on 21st October 1980 the number of cases with particulars of persons in solitary confinement in that prison. · He will appear in 'person on that date. Notice to Shri B. D. Sharma, Standing Counsel for the State of Rajasthan. lucrative slant, Counsel's services, under our litigative process, are a necessary facility for remedial justice and so we took this step of appointing Shri P. H. Parekh as amicus curiae. The whole bar, if it has a larger dedication, is amicus curiae, because no should be dearer to a people-oriented, justice-centred profession, despite its esoteric geµes, elitist strands and· than to be a decisive actor in the democracy of judicial remedies so that no man be he poor man or prisoner, dissenter, delinquent, eccentric extremist-shall suffer what the law forbids. In this Court, the members of the bar, whenever called up by the ]:>ench have kept the door ajar and unfailingly helped the Court as free janitors of justice and free forensic functionaries at the ~ervice of any one A~ter a111 the aggrieved by injustice arid seeking great proposition. that inspires the calling of justicing-by the Bench and the Bar alike--is best expressed by Dr. Martin Luther King (Jr) in his letter from Alabama Prison : legal justice. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, a single garment of destiny. Whatever affects one directly affects all indirectly. In retrospect, we feel it was right that we We must, even here, record our appreciation of Shri Parekh's passion for the prisoners' cause coupled with pains-taldng presen tation of the grievances they had. So too Shri B. D. Sharma's commitment to jail justice, beyond jailor's injustice i.e. his client's brief. took quick action to liberate the three prisoners from their callously lonely, Justice must be instant and barbarously fettered solitary custody. it has been wisely said : "Caution, caution, sir ! It is nothing but the word. of cowardice ! ( 1 ) Where human bondage and personal torture are involved, to wait is to defeat. In personal liberty juris prudence, this court has not tarried or teetered and shall not. The reason is clear. The writ must right the wrong forthwith or must stand self-condemned as make-believe. Where justice is in jeopardy (1) John Brown: quoted by Bruce Catto:i, Life, Sept. 12, 1955. 3-6 S. C. IndiajND/81 'Y · 997 A B c D E F G H 998 SUPREME COURT REPORTS (1981] 1 S.C.R. A m freedom is in fetter5 the court is n0t non-aligned and acts with · sensitive speed. Time is of the essence where otherwise torture is the consequence. B c D E F G · t t The order of this court dated 6-10-1980 brought counsel on both sides into tho scene, set free the prisoners from the hateful 'solitary' and summoned before us the presence of the Superinten dent of the Prison on 21-10-1980 to answer for his breach of the fundamentail law laid down in Sunil Batra(1). On that day, i.e. 21-10-1980, after a brief hearing, we directed : "The respondent will file a detailed affidavit giving parti culars and also produc<:: the proceedings relating to the enquiry 'fhe prisoner will be held resulting in solitary confinement. produced on 24-10-1980 in this Court and Shri Parekh will be allowed to interview him." Pursuant to this order, th~ Superintendeat of the Jail submitted his explanation for what in tha light of the Batra (supra) ratio, is unlaw. We will presently consider the conduct of the delinquent jailor but the more disturbing episode brought to our painful notice was the violence allegedly used by the escort police on the person of one prisoner, Surjeet Singh, while in transit and testified to by the visible wounds counsel found. Shri Parekh shocked us into shame by seeking to show us the physical injuries inflicted. If the writ of this court brings a person from the Jaipur Prison to jmlicial presence can it be that a little set of constables in custody during transit violate, with brazen bru!ality, and criminal immuJlity the person of their charges and the hands of r.he law hang limp in the face of such lawlessness ? "Justice without power is inefficient; :mwer without justice is tyranny. . . . Justice and power must therefore be brought together, so that whatever is just may be powerful, and what ever is powerful may be just." (Blaise Pascal) So, we ordered : "We are very disturbed to be told by Shri Parekh, amicus curiae that one of the prisoners, Surjeet Singh while being taken to this Court was manhandled there are bruises and other signs of injuries on his person. The Superintendent of the Jail, who is present in Court, will take special care !o see that this prisoner is taken to Jaipur safely. The Super-inten'1ent will take the prisoner Surjeet Singh to Ram Manohar Lohia Hospital today for examination of the prisoner severely. Counsel "'° (I) [19781 4 sec 494. ,_ KISHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 999 and also for proper treatment which may be suggested by the A fo the light of the medical report the Doctor in the Hospital. Superintendent will informatLon be~ore the Police Station concerned against the constables who are. the escorting police. It will be open to the prisoner himself to lay a com plaint and facilities will be afforded by the prison authorities. We make it clear that the investigation should not have slightest taint of departmental inclination to help a policeman if there is evidence of delinquency. A report wi11 be put into this Court about what has been done, by 31-10-1980." B Thereafter, the medical report, of which we have been apprised by Shri Parekh, the report against the constables concerned, reported to us by Shri Sharma, are taking their cours@. We do not make any observations thereon as that is the subject of a separate enquiry. Even so, no police life-style which relies more on fists than on writs, on torture more than on culture;~can control crime, because means boomerang on ends and re-fuel the vice which it seeks to extinguish. Secondly, !he State must re-educate the constabulary out of their ·sadistic arts and inculcate a respect for the human person-a process than by precept if the lower which must begin more by example rungs are really to emulate. Thirdly, if any of these escort police- men are found to have misconducted themselves, no sense of police solidarity or in-service comity should induce the authorities to hide the crime. Condign action, quickly taken is surer guarantee of com munity credence than bruiting about that 'all is we11 with the police, the critics are always iE1 the wrong'. Nothing is more cowarqly and unconscionable than a person in police custody being be!lien up and nothing inflicts a deeper wound on our con·stitutional culture than rights. We a State official running berserk regardless of human believe the basic pathology which makes police cruelty possible will receive Government's serious attention. Who will police the police ? What psychic stress and social deprivation of the constabulary's life- style need corrective healings ? When wiH 'wits, not fists' become a police kit ? When will the roots of 'third degree' be plucked out and the fresh shoots of humanis~ respect put out ? We make these tJbservations in the humane hope that Art. 21, with its profound concern for life and limb, will become dysfunctional unless the agencies of· the law in the police and prison establishments have sympathy for the humanist creed of t,hat Article. c D E F G This Court has frowned upon harrdcuffs save in the 'rarest of rare' cases where ·security will be seriously jeopardized unless iron H restraint is necessarily clamped on the prisoner. We are heartened to know that there are States where escorting is done with civility 1000 SUPREME COURT REPORTS [1981] 1 S.C.R. A and humanity. For instance, para 443 of the Kentla Police Manual. 1970, Vol. II, reads : B c D E "443. (1) The use of hand-cuffs .or ro12es causes humilia tion to the person subjected to the restraint, and is contrary to the modern policy regarding the treatment of offenders. There fore, handcuffing and/ or binding shall be restricted to cases where a person in custody is of a desperate character, or where there are reasons to believe that he will use '!iolence or attempt to escape or where there are other similar reasons necessitating such a step. We mention this here since policemen who beat those in their custody may with easy conscience handcuff and footcuff their charges, a course contrary to Art. 21.. to be prevail. The harrowing facts, in substantial measure emerge even from the statement of the case by the,. State. The petitioners have admittedly been kept in separate solitary rooms for long periods from 8 months to 11 months-spells long enough regarded as barbarous if Sunit Batrds (supra) is to Aqmittedly, cross-bar fetters were put in Kishore Singh for several days and on Surjeet Singh for 30 days---counsel for the petitioner has rightly submitted that flimsy grounds like "loitering in the prison", behaving insolently and in an "uncivilised" manner tearing off his history ticket, were the foundation for the torturesome treatment of solitary confinement and cross-bar fetters. We have read the affidavit of ~he Superintendent and feel utterly unsatisfied, that the mandate in Sunil Batra (supra) has been obeyed. This case and the uncivilised orders of cellular solitude and traumatic fetrters compels us to repeat what we stated earlier in SunU Batra (II) : ( 1 ) F G The essence of the matter is that in our era of human rights consciousness the habeas writ ha,s functional plurality and the constitutional regard for human decency and dignity is tested by this capability. We ideologically accept the words of Will Durant: (2 ) It is time for all good men to come to the aid of their ·party, whose name is civilization. Likewise, we endorse, as part of our constitutional thought, what the British Government's White Paper ( 3 ), titled "People in Prison", stated with telling effect : ""f" H (1) Sunil Batra v. Pelhi Admn. [1980] 3 SCC 488 at 494. . (2) Will Durant's Article: "'What Life Has Taught Me" pub. in Bhavan's . Journal, Vol. XXIV, No. 18, quoted in [1978] 4 SCC 494 at 514, para 42. (3) Will Durant's Article quoted in [1978] 4 SCC 494 at 514. KISHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 1001 A society that believes in the worth of individual beings can have the quality of its belief judged, at least in part, by the quality of its prison and probation services and of the resources made available to them. We do not accept the Superintendent's version that he had given - in Sunil Batra (II) decision(!). a hearing to the prisoners before punishing them. It is a self-defen sive pretence and perhaps the only veracious alibis available to him are that the vintage Prison Rules (Rule 1 (f) Part 16 and Rule 79 of the Rajasthan Prison Rules, 1951) suppont the administrative absolutism of the prison boss and more to the point as counsel Shri Sharma candidly stated. The Superintendent was 'innocent' of the benign prescriptions Indeed, Shri Sharma, convincingly persuaded us to take a lenient view of the delinquency of the Superintendent by emphasising that he had taken the Prison Superintendent through the effective exercise of reading and explaining the Batra rulings( 2 ) and assuring us that no more of solitary confinement disguised as "keeping in separate cell" and imposition of fetters will take place, save in the rarest of rare cases and with strict adherence to the procedural safeguards contained in the decisions of this Court relating to the punishment of prisoners. We accept the bona fides of the prison official but emphasise violation of Art. 21 as interpreted by this Court in its recent deci sions, if repeated, will be visited with more serious consequences. Even so, we will refer to the scripture relied on as absolvent of the sin complained of and reiterate tersely the mandatory prescriptior1s and prescriptions implicit in Art. 21 and elucidated by case-law. Rules 79 and 1 (f) of Part VI of the Rajasthan Prisons Rules, may be extracted here :

#79. "Special Precautions for security : The Superintendent shall use his discretion in ordering such special precautions as may be necessary to be taken for the security of any im portant prisoner, whether he has received any warning the Magistrate or not, as the Superintendent is the sole Judge of what measures are neces~ary for the safe custody of prisoners; he shall be held responsible for seeing that precau tions taken are reasonably sufficient for the purpose. 1 (f) Cells may be used for the confinement of convicted criminal prisoners who are in the opinion of the Superintendent, likely to exercise a bad influence over other prisoners, if kept in their association. (1) [1980J 3 sec 488. (2) [1978] 4 sec 494 and [1980] 3 sec 488. A B c D E F G H J.002 SUPRE~1E COURT REPORTS (1981] 1 S.C.R. A These Rules were framed under s. 46 of the Prisons Act which also may be read at this stage :

#46. The Superintendent may examine any person touching any such offence, and determine thereupon and punish offence by ..... . B c E F G H ( 6) imposition of handcuffs of such pattern and weight, in such manner and for such period, as may be pres cribed by rules made by the Governor General irr Council; ~7) imposition of fetters of such pattern and weight such manner and for such period, as may be prescribed· by the rules made by Governor General in Council; (8) separate confinement for any period not exceeding three months; Explanation.-Separate confinement mean~ such confine secludes a prisoner labour as ment with or without from communication with, but not from sight of other prisoners, and allows, him not less than one hour's exer cise per diem and to have his meals in association with one or more other prisoners; (9) Cellular confinement means such confinement with or secludes a prisoner from o~ other without labour as entirely communication with, but not from prisoners; that prisoners 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 are non 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 9perate within the prisons in the manner explained in Sunil Batra (I) (supra), by a Constitution It is significant that t.lie two opinions given Bench of this Court. separately in that judgmefrt agree in spirit and substance, in reason ing and conclusions. Batra in that case was stated to be in a separate confinement and not solitary cell. An identical plea has in Sunil been put forward here too. For Batra's case 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 If special restrictions. like others undergoing rigorous imprisonment. reasons given ··~ .>- ( KISHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 1003 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 case. Moreover, there must be an appeal not from Caeser to Caeser, but from a prison authority to a judicial organ when such treatment is meted out. Sobraj in the same case (Sunil Batra, supra) was kept in fetters and reasons more persuasive than in the present case were put fetters forward in defence. This Court, however, directed "such shall forthwith be removed". Of course, we do not place absolute ban but insist that only in extreme cases of compelling necessity for security of other prisoners or against escape can such fettering be resorted to. Human dignity is a dear va·lue of our Constitution not to be .bartered away for mere apprehensions enter tained by jail officials. The latter decision of this Court in Sunil Batra ll (1) clothes with flesh and blood the principles laid down Sunil Batra (I) (supra). In Rakesh Kaushik( 2 ) the position has advanced further and concrete directions have been issued which we extract here because t)l.e law laid down by this Court applies not to one State or the other but to all national institutions in the country: "(2) He will furrther enquire, with specific reference tO the charges of personal assault and compulsion for collaboration in canteen swindle and other vices made by the prisoner against the Superintendent and the Dy. Sup.'.)rintendent. ( 3) He will go into the question of the directives issued in the concluding portion of Sunil Batra's case (W.P. 1009/79) (3) these directions have been with a view to ascertain whether substantially complied with and to the extent there is shortfall or default whether there is any reasonable explanation therefor. ) ( 4) Being a Visitor of the jail, it is part of his visitatorial and prisoners' functions for the Sessions Judge to acquaint himself with condition of grievances ..... . tension, vice and violence y We hold that the jail authorities in Rajasthan will comply with the principles so laid down. We read down s. 46 and Rules 1 (f) and 79 ·Of the Rajasthan Prison Rules and sustain them in this limited fashion. OJ [1980] 4 sec 488. (2) Rakesh Kaushik v. B. L. Vig, Supdt. Ce11tral Jail, New Delhi & Anr. [1980] 3 S.C.R. 929. (3) [ 1980] 4 sec 488. A B c D E F G 1004 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E We direct the Respondents to act accordingly. Further we remind that the Sessions Judges in the State of Rajasthan to remem ber the rulings of this Court in Sunil Batra I & ll and Rakesh Kaushik (supra) and act in such manner that judicial authority over sen tensees and the conditions of their incarceration are not eroded by judicial in-action. We find that the old rules and circulars and instructions issued under the Prisons Act are read incongruously with the Constitution, especially Art. 21 and interpretation put upon it by tl]is Court. We. indeed, therefore, direct the State Government of Rajasthan-and all the other State Government,') in the country-to convert rulings of this Court bearing on Prison Administration into and instructions forthwith so that violation of the prisoners' freedoms can be avoided and habeas corpu:t litigation may not proliferate. Afiter all, human rights are as much cherished by the State as by the citizen. Since the petitioners have been released from separate confinement and from cross-bar fetters and since counsel for the State has assured us that nothing will be done in violation of the propositions set out in the catena of cases of this court (Sunil Batra I & II and Rakesh Kaushik (supra)), we deem it unnecessary to give further directives pursuant to this habeas corpus application. N.V.K. Petition allowed.