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PETITIONER: D. BHUVAN MOHAN PATNAIK & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT09/09/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KHANNA, HANS RAJ GOSWAMI, P.K.

CITATION:  1974 AIR 2092            1975 SCR  (2)  24  1975 SCC  (3) 185  CITATOR INFO :  E&R        1978 SC1675  (57,197,212,226)  F          1980 SC1579  (42)  RF         1981 SC 746  (4)  R          1983 SC 361  ((2)16,17)  RF         1983 SC 465  (5,16,17)  RF         1985 SC 231  (2,3)

ACT: Constitution  of India, Articles 32, 21 and 13-Prisons  Act. 1894-Whether prisoner has fundamental right-Validity of live wire mechanism atop jail wall-Posting Police out-side  jail- Validity of.

HEADNOTE: The  petitioners  are under-going sentences in  the  Central Jail  at  Vizagapatnam.   The  petitioners  have  filed  the present writ petitions for the reliefs that the armed Police Guards  posted  around the Jail should be removed  and  that live  wire  electrical mechanism fixed on top of  jail  wall should  be dismantled.  It was contended by the  petitioners that (1) under section 3(1) of the Prisons Act, 1894  prison includes  all lands and buildings appurtenant thereto.   The policemen occupied huts appurtenant to jail and,  therefore, occupied a part of the prison, which is calculated to  cause substantial interference with the fundamental rights of  the petitioners.  (2)  Naxalite prisoners  were  segregated  and inhuman  treatment  was meted out to them as  if  they  were inmates  of a fascist concentration camp. (3) The live  wire mechanism  fixed  atop the jail  walls  is  unconstitutional because a prisoner attempting to escape is by the use of the device  virtually subjected to a death penalty.   Under  the Penal  Code a prisoner who escapes or attempts to escape  is liable  to  a maximum sentence of 2 years and a  fine.   The live  wire  gadget  lacks the authority of  law  and  is  in flagrant  violation  of the personal liberty  guaranteed  by Article 21 of the Constitution. It was contended by the respondent that (1) the usual  watch and  ward  staff  of  the  Jail  having  been  found  to  be inadequate,  services of the Andhra Pradesh  Special  Police force  had  to  be  requisitioned to  guard  the  jail  from outside.  (2)  The prisoners were not subjected  to  inhuman

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treatment  and  were  on the other  hand  afforded  all  the facilities necessary for a decent and reasonably comfortable existence.  (3) The live wire installed atop the wall is  14 ft.  from ground level, height of the wall itself  being  13 ft.   It rests on enameled non-conductors.  The wire has  no direct contact with the wall and there is no possibility  of the electrical current leaking through the wall.  The prison walls themselves are situated at a distance of about 20  ft. from  the  cells  where  the  petitioners  are  lodged.   An electrician inspects the system regularly.  The mechanism is not  a  secret  trap  as all prisoners  are  warned  of  its existence. Dismissing the petition. HELD  :  (i)  Convicts  are  not  by  mere  reason  of   the conviction, denuded of all the fundamental rights which they otherwise  possess.  A prisoner is deprived  of  fundamental rights  like  the  right  to  move  freely  throughout   the territory  of India or the right to practice  a  profession. But  other  freedoms  like the right  to  acquire,  hold  or dispose  of property are available to the prisoner.   He  is also  entitled  to the right guaranteed by Art. 21  that  he shall  not be deprived of his life or the  personal  liberty except   according  to  the  procedure   established   bylaw Therefore.  under  our Constitution the  right  of  personal liberty  and some of the other fundamental freedoms are  not to  be  totally  denied to a convict during  the  period  of incarceration. [26D-F; 27B] (II) The petitioners are not denied any of their fundamental rights  by posting of Police Guards immediately outside  the jail.  As many as 156 Naxalite Prisoners were lodged in  the Vizagapatnam jail, as a result of which the usual watch  and ward  arrangement proved inadequate. 11  Naxalite  prisoners including 2 out of the 3 petitioners escaped from the prison in  1969.   It  was  decided  thereafter  to  take  adequate measures  for preventing the scope of prisoners  from  jail. The  Policemen have no access to the jail which is  enclosed by high walls.  Their presence in the immediate vicinity  of the jail can cause no interference with the personal liberty or the lawful preoccupations of the prisoners. [27B-D, G] 25 (iii)     The court is not satisfied about the truth of  the allegations  of inhuman treatment though the court does  not accept the rosy picture drawn by the Jail Authorities. There are subtle forms of punishment to whichconvicts  and  under trial  prisoners  are  sometimes subjected but  it  must  be realize  that these barbarous relics of a bygone era  offend against the letter andspirit of our Constitution. [28B  & G] (iv)The  live wire mechanism has no support of law.  It  is based on mere administrative instructions.  Therefore. if it violates  the fundamental  rights it cannot be justified  on the  ground  of its being reasonable.  If action of  the  WI authorities   violates   the  fundamental  rights   of   the petitioner  the justification of the measure must be  sought in some law within the meaning of Article 13 (3) (a) of  the Constitution.  There is no possibility that the  petitioners will  come  into contact with the electrical device  in  the normal  pursuit  of their daily chores.  There  is  also  no possibility that any other person in discharge of his lawful functions  will  come  into  contact  with  the  same.   The prisoners have no fundamental freedom to escape from  lawful custody.    Therefore,   they   cannot   complain   of   the installation of the live wire with which they are likely  to come  into  contact  only if they try  to  escape  from  the prison. [29E; H; 30 AB]

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JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 295-297 of 1974. Under article 32 of the Constitution of India. R.   K. Garg, for the petitioners. P.   Ram Reddy and P. Parmeshwararao, for the respondents. The Judgment of the Court was delivered by CHANDRACHUD,  J.   This is a group of three  writ  petitions under article 32 of the Constitution. D.Bhuvan  Mohan Patnaik, the petitioner in Writ  Petition No.  295 of 1974 is undergoing the sentences of 4 1/2  years and 5 1/2 year& awarded to him in two sessions cases.  He is also  an  under  trial  prisoner in what  is  known  as  the Parvatipuram Naxalite Conspiracy case.  Nagabhushan Patnaik, who  is the petitioner in Writ Petition No. 296 of 1974  was sentenced  to  death by the learned 11  Additional  Sessions Judge, Visakhapatnam, but that sentence was commuted by  the State  Government to life imprisonment.  P.  Hussainar,  the petitioner  in Writ Petition No. 297 of 1974, is  undergoing the  sentence of imprisonment for life imposed by  the  same learned  Judge.  He is also an under-trial prisoner  in  the Parvatipuram Case.  The three petitioners are undergoing the sentences in the Central Jail at Visakhapatnam. We  are not concerned with any evaluation of  the  political beliefs  of the petitioners who claim to be  Naxalities  nor with  the  legality  of the sentences imposed  on  them  nor indeed  with  the  charges on which two of  them  are  being tried.   The only reliefs which they ask for are  :  (1)that the  armed  police guards posted around the jail  should  be removed and (2) that the livewire electrical mechanism fixed on top of the jail wall should be dismantled. Mr.  Garg who appears on behalf of the petitioners  contends that  even  the  discipline  of the  prison  must  have  the authority  of law and that there should be a sort  of  "Iron curtain’ between the prisoners and 26 the police so that convicts and under-trial prisoners may be truly free from the influence and tyranny of the police. Section 3(1) of the Prisons Act, 9 of 1894, defines ’prison’ to  mean any jail or place used permanently  or  temporarily for  the  detention of prisoners, including "all  lands  and buildings  appurtenant thereto".  The Superintendent of  the Central  Jail, Visakhapatnam, who is the 3rd  respondent  to the petitions, has filed an affidavit stating that the usual watch  and  ward staff of the jail having been found  to  be inadequate,  the  services  of the  Andhra  Pradesh  Special Police Force had to be requisitioned to guard the, jail from outside.   The affidavit shows that these policemen live  in huts  built on a part of the vacant jail land and  that  the officers of the Force are, accommodated in the.  "jail Club" immediately outside the jail.  Their office is situated in a block  outside  the jail, which was meant to be  used  as  a waiting  room  for visitors wishing to meet  the  prisoners. The argument of Mr. Garg is that since prison includes lands appurtenant thereto, the members and officers of the  Andhra Pradesh  Special Police Force must, on the affidavit of  the third respondent, be held to occupy a part of the prison and that  must  be  prevented  as  it  is  calculated  to  cause substantial interference with the exercise by the  prisoners of their fundamental rights. 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

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conviction, to live in a prison-house entails to by its  own force the deprivation of fundamental freedoms like the right to  move  freely throughout the territory of  India  or  the right to "practice" 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. In State of Maharashtra v. Prabhakar Pandurang Sangzgiri & A nr.  (11)  a person who was detained by  the  Government  of Maharashtra  under  rule 30(1) (b) of the Defence  of  India Rules,  1962  wrote,  while in jail, a  book  of  scientific interest and sought permission from the State Government  to send  the manuscript out of the jail for  publication.   The request  having been rejected the detenu filed a writ  peti- tion  in the Bombay High Court which allowed  the  petition. In an appeal filed in this Court by the State Government  it was held that though the conditions of detention under  rule 30(4)  of the Defence of India Rules, 1962 were the same  as under  the Bombay Conditions of Detention Order, 1951  which laid  down  conditions regulating the  restrictions  on  the liberty of a detenu, it could not be said that the order  of 1951  conferred only certain privileges on the detenu.   The Court  observed : "If this argument were to be accepted,  it would mean that (1)[1966] 1 S. C. R. 702. 27 the  detenu  could  be starved to death,  if  there  was  no condition  providing  for giving food to the  detenu".   The refusal of the State Government to release the manuscript of publication  was held to constitute an infringement  of  the personal  liberty  of the detenu in derogation  of  the  law under which he was detained. Though,  therefore,  under our Constitution,  the  right  of personal liberty and some of the other fundamental  freedoms are not to be totally denied to a convict during the  period of  incarceration,  we  are unable to  appreciate  that  the petitioners  have been deprived of any of their  fundamental rights  by the posting of police guards immediately  outside the jail.  The affidavit of the third respondent shows  that as  many  as  146  Naxalite prisoners  were  lodged  in  the Visakhapatnam jail as a result of which the usual watch  and ward   arrangement  proved  inadequate.    Eleven   Naxalite prisoners including two out of the three petitioners  before us,  namely, Nagabhushan Patnaik and P.  Hussainar,  escaped from  the  prison on the night of October 8, 1969.   It  was decided thereafter to take adequate measures for  preventing the escape of prisoners from the jail.  We do not think that a  convict has any right any more than anyone else  has,  to dictate  whether  guards ought to be posted to  prevent  the escape  of  prisoners.  Prisoners will always  vote  against such measures in order to steal their freedom. The vacant land appurtenant to the jail is by the definition of  ’prison’ in section 3 (1) of the Prisons Act a  part  of the  prison itself.  It cannot, therefore, be gainsaid  that members  of the Andhra Pradesh Special Police Force must  be deemed to be in occupation of a part of the prison premises. The infiltration of policemen into prisons must generally be deprecated for, under-trial prisoners, like two of the peti- tioners  before  us, who are  remanded  to-judicial  custody ought  to  be  immune from the  coercive  influence  of  the

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police.   The security of one’s person against an  arbitrary encroachment  by the police is basic to a free  society  and prisoners  cannot be thrown at the mercy of policemen as  if it  were  a  part  of an  unwritten  Law  of  Crimes.   Such intrusions  are  against "the very essence of  a  scheme  of ordered  liberty".   But the argument of Mr.  Garg  proceeds from purely hypothetical considerations.  The policemen  who live  the vacant jail land are not shown to have any  access to  the,  jail  which  is enclosed  by  high  walls.   Their presence  therefore, in the immediate vicinity of  the  jail can  cause no interference with the personal liberty or  the lawful preoccupations of the petitioners. Counsel for the petitioners complained bitterly against  the segregation of Naxalite prisoners in a "quarantine" and  the inhuman treatment meted out to them as if they were  inmates of  a  "fascist  concentration  camp."  We  would  like   to emphasis once again, and no emphasis in this context can  be too   great,  that  though  the  Government  possesses   the constitutional right to initiate laws, it cannot, by  taking law  into  its own hands, resort to oppressive  measures  to curb the political beliefs of its opponents.  No person, not even a prisoner, can be deprived of his ’life’ or  ’personal liberty’  except according to procedure established by  law. The American Constitution by the 5th and 14th 28 Amendments  provides,  inter alia, that no person  shall  be deprived  of  "life, liberty, or property, without  the  due process  of law".  Explaining the scope of  this  provision, Field  J. observed in Munn v. Illinois(1) and that the  term "life"  means something more than mere animal existence  and the inhibition against its deprivation extends to all  those limits  and  faculties  by  which  life  is  enjoyed.   This statement of the law was approved by a Constitution Bench of this Court in Kharak Singh v. The State of U. P. and Ors.(2) But, on a perusal of the affidavit of the 3rd respondent, we are   not  satisfied  that  the  allegations  made  by   the petitioners  are true, though we do not think that the  rosy picture  drawn  by  the  3rd  Respondent  of  life  in   the Visakhapatnam  Central  Jail can too  readily  be  accepted. "Airy  rooms with cross-ventilation", a "break-fast and  two regular meals a day........ the total caloric value of which is  about  4000 calories per day as  against  2500  calories which  is the average caloric value of food consumed  by  an Indian", "250 grammes of chicken, a liter of milk and 2 eggs per day" for one of the petitioners who hasa      duodenal ulcer"  a lot of reading material"; "facilities for  playing games  like  Volleyball, Kabbadi,  Badminton,  Ring,  tennis etc."  the supply of "musical instruments" and "a radio net- work"-these  and many other amenities are, according to  the 3rd  Respondent, made available to the prisoners.   We  hope and  trust  that  the claim is founded on  true  acts.   But attention of the jail authorities needs to be drawn to  what the  petitioners  have described as  the  "marathon  hunger- strike"  by  a  large  number  of  Naxalite  prisoners   for improvement  in the subhuman conditions of their  existence. We  are  also not prepared to dismiss as wholly  untrue  the reply  of the petitioners to the 3rd  Respondent’s  counter- affidavit, that there is difficulty even in getting a packet of  powder  for a rickety carrom-board, that the  radio  net work  consists of a silent museum-piece, that the supply  of "musical instruments’ consists of an abandoned  non-speaking harmonium  and a set of dilapidated drums and that  all  the music  that  is  there  is provided by  an  army  of  mobile mosquitoes.   These,  however,  are matters  of  reform  and though they ought to receive priority in our  Constitutional

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scheme,,  there  denial may not  necessarily  constitute  an encroachment  on the right guaranteed by Article 21  of  the Constitution.   We  cannot  do  better  than  say  that  the directive   principle  contained  in  Article  42   of   the Constitution  that  "The  State  shall  make  provision  for securing   just   and  humane  conditions   of   work"   may benevolently  be  extended to living  conditions  in  jails. There, are subtle forms of punishment to which convicts  and under-trial prisoners are sometimes subjected out it must be realized that these barbarous relics of a bygone era  offend against the letter and spirit of our Constitution.  For want of Satisfactory proof, we hesitate to accept the  contention of  the petitioners that the treatment meted out to them  is in violation of their right to life and personal liberty. As  regards  the  live-wire mechanism fixed  atop  the  jail walls.   Mr.  Garg argues that the act  is  unconstitutional because  a prisoner attempting to escape is, by the  use  of the device, virtually subjected to a death 877] 94 U.S. 113. (2) [1964] 1 S.C.R. 3 332, 347. 29 penalty.   The policy of law as reflected in section 224  of the,  Penal Code, says the counsel, is to visit  a  prisoner attempting to escape, or successfully escaping, to a maximum sentence  of  two years and a fine.  The  live  wire  gadget lacks  the  authority  of law and since  it  is  a  flagrant violation  of the personal liberty guaranteed by Article  21 of  the Constitution, it must be declared  unconstitutional. Counsel fears that if the court puts its seal of approval on the  use of the inhuman mechanism, prisons shall  have  been converted into cremation grounds. This  argument  has  a strong emotional appeal  but  not  to reason.   And  the  appeal to reason is what  the  court  is primarily    concerned   with   in   deciding    upon    the constitutionality of any measure. But  before  examining the petitioners’  contention,  it  is necessary to make a clarification.  Learned counsel for  the respondents  harped on the reasonableness of the step  taken by the jail authorities in installing the high-voltage live- wire on the jail walls.  He contended that the mechanism was installed solely for the purpose of preventing the escape of prisoners and was therefore a reasonable restriction on  the fundamental rights of the prisoners.  This, in our  opinion, is  a wrong approach to the issue under  consideration.   If the petitioners succeed in establishing that the  particular measure  taken by the jail authorities violates any  of  the fundamental rights available to them under the Constitution, the  justification  of the measure must be  sought  in  some "law",  within  the  meaning of Article  13(3)  (a)  of  the Constitution.   The installation of the high  voltage  wires lacks  a statutory basis and seems to have been  devised  on the    strength   of   departmental   instructions.     Such instructions are neither "law" within the meaning of Article 13(3) (a) nor are they "procedure established by law" within the  meaning of Article 21 of the Constitution.   Therefore, if  the petitioners. are right in their contention that  the mechanism  constitutes an infringement of any of the  funda- mental  rights available to them, they would be entitled  to the  relief  sought  by  them  that  the  mechanism  to   be dismantled.  The State has not justified the installation of the mechanism on the basis of a law or procedure established by law". The  live-wire  is installed on the top of a wall,  14  feet from  the ground level, the height of the wall itself  being 13  feet.  It rests on enamel non-conductors fixed to  angle

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irons  which  are  embedded in the wall.  The  wire  has  no direct contact with the wall and there is no possibility  of the  electrical  current  leaking  through  the  wall.   The prison-walls are themselves situated at a distance of  about 20 feet from the cells where the petitioners are lodged.  An electrician  inspects  the system  regularly.   Family,  the mechanism  is not a secret trap as all prisoners are  warned of its existence and a non-electrical barbed-wire fences the jail walls. There is thus no possibility that the petitioners will  come into  contact  with  the, electrical device  in  the  normal pursuit of their daily chores.  There is also no possibility that any other person in the discharge of 30 his lawful functions or pursuits will come into contact with the,  same.   Whatever  be  the nature  and  extent  of  the petitioners’ fundamental right to life and personal liberty, they  have  no  fundamental freedom to  escape  from  lawful custody.    ’Therefore,   they  cannot   complain   of   the installation of the live-wire mechanism with which they  are likely  to come into contact only if they attempt to  escape from  the, prison.  Carrying the petitioners’ contention  to its  logical  conclusion,  they would also  be  entitled  to demand that the height of the compound wall be reduced  from 13  feet  to say 4 or 5 feet as a fall from a height  of  13 feet is likely to endanger their lives. In  fact  the, petitioners could ask that  all  measures  be taken  to  render  safe their attempt  to  escape  from  the prison. In  holding that the live-wire mechanism does not  interfere with any of the fundamental freedoms of the petitioners,  we are  not  influenced  by the  consideration  so  prominently mentioned  by  the 3rd Respondent in his  further  affidavit that a similar system is in vogue in Hyderabad, Warangal and Nellore.  If the system is unconstitutional, its  widespread use will not make it constitutional. Section  46,  Criminal Procedure Code,  1898,  furnishes  no analogy to the present case because it lays down how arrests are to be made and the extent of force which may be used  if the  person to be arrested forcibly resists the endeavor  to arrest  him.  Sub-section (2) of section 46  authorises  the person  making  the arrest to "use all  means  necessary  to effect  the  arrest"  while sub-section  (3)  provides  that "Nothing in this section gives a right to cause the death of a  person who is not accused of an offence  punishable  with death or with imprisonment for life." Chapter V of the  Code of 1898 in which section 46 appears is headed : "of  Arrest, Escape  and Retaking".  Seething 46 deals with the  mode  in which arrests, for the first time, may be effected.  Section 66 deals with the power, on escape, to pursue and retake the prisoner.   It provides that "if a person in lawful  custody escapes  or  is rescued, the person from  whose  custody  be escaped or was rescued may immediately pursue and arrest him in any place in India." Apart from this, the installation of the high-voltage wire does not offend against the command of section  46(3) even on the assumption that  the  sub-section covers  the  rearrest  of a prisoner who  has  escaped  from lawful custody.  The installation of the system does not  by itself cause the death of the prisoner.  It is a  preventive measure  intended to act as a deterrent and can cause  death only  if a prisoner courts death by scaling the  wall  while attempting  to escape from lawful custody.  In  that  sense, even a high wall without the electrical device would be open to  the  exception that a prisoner falling  from  a  height, while  attempting  to escape by scaling the wall,  may  meet

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with   his   death.   Section  46(3)  is,   therefore,   not contravened and the grievance that the mechanism involves  a total negation of the safeguards afforded by Criminal law is without any substance. The  petitioners are, therefore, not entitled to  either  of the  two  reliefs  sought  by them  and  the  rule  must  be discharged but that is on the 31 ground  that the acts complained of are not shown  to  cause any.  interference with the fundamental rights available  to them  and  not  on  the ground  that  prisoners  possess  no fundamental  rights.  The rights claimed by the  petitioners as fundamental may not readily fit in the classical could of fundamental  freedoms,  but  "basic  rights  do  not  become petrified  as  of any one time, even though as a  matter  of human  experience  some may not too rhetorically  be  called eternal  verities.   It  is of the very  nature  of  a  free society  to  advance  in its standards  of  what  is  deemed reasonable  and right.... To rely on a tidy formula for  the easy  determination  of  what is  a  fundamental  right  for purposes  of  legal enforcement may satisfy  a  longing  for certainty but ignores the movements of a free society."(1) P.H.P. Petitions dismissed. (1) Per Frankfurter J. in Wolf v. ColOrado, (1949) 338 U. S. 25, 27. 32