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PETITIONER: SHRI RAMA MURTHY

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       23/12/1996

BENCH: KULDIP SINGH, B.L. HANSARIA, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA J.      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 a Hon’ble Judge  of this  Court from  Tihar Jail,  Delhi.  The judgments in  his cases  and that of Charles Sobraj 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 and Ors., 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  letters, which was treated as a writ petitions,  had laid  bare the constitutional dimension and rights available to a person behind stone wails 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)  aid 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  vs. State of Gujarat, 1976 (1) SCC 654; and Krishan  Lal v. State of Bihar 1976 (1) SCC 655 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.

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(3)  A challenge was made to the segregation of prisoners in Bhuvan 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 cub political beliefs (the prisoner was   a  Naxalite because  of which he was put in a ‘guarantine’ 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 had  fundamental right to escape from lawful custody. (4)  In Charles  Sobraj 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 poisoner. In that case the complaint was against incarceratary torture. (5)  Sunil   Batra  (I)  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  1981 SC  2625 (#1981  (1) SCC  503) also the Court dealt with the parameters of solitary confinement. (6)  Prem Shankar  v. Delhi Administration, AIR 1980 SC 1535 (#1980 (3)  SCR 855);  and Kadra Pahadiya v. State of Bihar, AIR 1981  SC 959  (#1981-3 SCC  671) prohibited  putting  of undertrial prisoners in leg-irons. (7)  In Sunil  Batra (II) the Court was called upon the 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 Coralie  v. Union Territory of Delhi AIR  1981 SC  746(+1981 (8)  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 (= 1982 (3) SCC (31); and (ii) Sheela Barse v. Union Territory, 1993 (4) SCC 204, this Court was called upon the 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 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, wherein  the  bench  was  concerned  with  the dentention 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

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punishment provided in the Act. This decision was cited with approval by  another  two-Judge  bench  in  Shaheen  Welfare Association v.  Union of 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. (10) The judicial  work done by this Court on the subject at hand would  not be complete without mentioning what was held in Mohammad Giasuddin v. State of Andhra India, 1996 (2) SSC 616 in which harsh provisions of TADA were horne 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  trails.  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  (1) RD Upadhyay v. State of Andhra Pradesh. 1996  (3) SCC 422; and (ii) "Common Cause" v. Union of India,  1996 (4)  SCC 33.  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. 4.   The journey  which commenced  in 1966  has thus, during the last  30 years,  planted many  milestones. But  it seems there are  vet promises  to keep  and miles to go before one can sleep.  And how can one sleep with wailinos of prisoners getting louder  and louder  which requires a sentinal on the qui-vive, as  this Court is so far as fundamental rights are concerned, to  take not  of agony  and to  lay down  what is required to  be done  to make prisons match the expectations of society? 5.   Let it  be seen  how to  protect various  rights of the prisoners and how the object of rehabilitation of a prisoner does not  remain will-of-the  wisp. We  have to be pragmatic also. Constitutional  rights of  the prisoners shall have to be interpreted  in such  a way  that larger  public interest does not  suffer while  trying to  be soft  and  considerate towards the prisoners. For this, it has to be seen that more injury than is necessary is not caused to a prisoner. At the

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same time efforts have to be made to reform him so that when he comes  out of  prison he  is a  better citizen  and not a hardened criminal. 6.   Before proceeding  to lay  down the  do’s and dont’s it would be  useful to  note what  is the  general position  of prisons in  the country  presently. To  bring home  this, it would be enough to note what has been mentioned in the 1994- 95 Annual Report of National Human Rights Commission in this regard at page 13 in para 4.17. The same is as below:-      "The  situation   in  the   prisons      visited  was  varied  and  complex.      Many, such  as Tihar  Jail in Delhi      were over-crowded; yet others, like      that open  jail in  Hyderabad  were      under-utilized.  Often,   within  a      single  State,   conditions  varied      from one  jail to  another in  this      respect, pointing to the need for a      more  rational  State-wide  use  of      facilities. The  Commission  saw  a      few jails  which were notably clean      and where  the diet  was reasonable      such  as   the  Central   Jail   in      Vellore. Unfortunately, it saw many      others which  are squalid,  such as      the newly  constructed Central Jail      in Patna.  In yet  others, the diet      was inferior,  and  the  management      was denounced  by  the  inmates  as      brutal and  corrupt. In  some, care      was   being   taken   to   separate      juveniles   from    others,   petty      offenders from  hardened criminals.      In others,  no such  care was being      taken and  the atmosphere  appeared      to     nurture     violence     and      criminality.  In   a   few,   major      efforts were  being made  to reform      conditions, to  generate employment      in a  worthwhile  and  remunerative      way,  to  encourage  education  and      restore   dignity.    In    others,      callousness  prevailed,   prisoners      were  seen  in  shackles,  mentally      disturbed inmates  - regardless  of      whether  they   were  criminal   or      otherwise- were  incarcerated  with      others, with  no real  effort being      made to rise above the very minimum      required for  the meanest survival.      Where   prisoners   worked,   their      remuneration was  often a pittance,      offering  scant   hope  of  savings      being    generated    for    future      rehabilitation in  society. By  and      large,  the   positive  experiences      were the exceptions rather than the      rule,  dependant   more  upon   the      energy    and     commitmeent    of      individual  officials  rather  than      upon the  capacity of the system to      function appropriately on its own."                            Facts 7.   As alluded,  this petition  has its  origin in a letter from one Rama Murthy, a prisoner in Central Jail, Bangalore,

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addressed to the Hon’ble Chief Justice of this Court. In the letter the main grievance was about denial of rightful wages to the prisoners despite doing hardwork by them in different sections of  the prison.  Mention was  also made about "non- eatable food"  and "mental  and physical  torture".  On  the matter being  taken up  judicially, a need was felt, in view of the  denial of  the allegations in the objection filed on behalf  of   the  respondent,   that  the   District  Judge, Bangalore, should visit the Central Jail and should find out the pattern  of  payment  of  wages  and  also  the  general conditions of  the prisoners  such as residence, sanitation, food, medicine  etc.    This  order was passed on 26.11.1992 and the  District Judge,  after seeking  time for submitting report from this Court, did so on 28.4.1993. His report runs into more  than 300  pages (alongwith voluminous annexures), which shows  the earnestness  and pains  which the  District Judge evinced and took in submitting the report. 8.   It would  be enough for our purpose to note the various conclusions arrived  at by  the District  Judge, which  have been incorporated in para 23 of the report reading as below:      "23. Therefore,  on the  basis of a      through and proper enquiry by me in      the Central  prison,  Bangalore  as      directed  by  the  Hon’ble  Supreme      Court, I have reached the following      conclusions:      1. The  general  condition  of  the      prisoners  is  satisfactory.  Their      treatment by  the Jail  Authorities      is also satisfactory.      2. The quality, quantity and timely      supply of food to the prisoners are      satisfactory.      3. The  pattern of payment of wages      is as  per Annexure  -F and  it  is      being followed  properly. The wages      are correctly  recorded and paid to      the prisoners as per rules.      4.     The      residence      (the      accommodation) to  the prisoners in      the   jail    are   adequate    and      satisfactory. But  the  maintenance      of   buildings    by   the   P.W.D.      authorities is  hopelessly bad  for      want of  funds from  the Government      according to them.      5.   The    sanitation    is    not      satisfactory due to accute scarcity      of  water.  The  jail  premises  is      normally maintained  clean and tidy      with  great   efforts.  But  it  is      improving since about a month after      opening 3 or 4 borewells.      6. The  medical facilities  in  the      Jail   Hospital   and   supply   of      medicines  to   the  prisoners  are      satisfactory.    Due    to    overt      population  in  the  jail  the  two      Doctors and  their staff at present      in the  jail Hospital are unable to      cope up  with the demands but still      there is no slackness or negligence      in their  work. for  want  of  Lady      Doctor  and   women  staff  in  the      hospital the  Medical attendance to

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    women prisoners  is not  proper  or      satisfactory.      7.  Visit  of  prisoners  to  their      homes or their places is not prompt      or regular as per rules due to want      of Police  Escorts. This has caused      lot    of    dissatisfaction    and      depression among the prisoners.      8. The  production of  prisoners in      Courts on  the dates  of hearing in      their  cases   is  not  regular  or      prompt  due   to  want   of  Police      Escorts  and   vehicles.  This  has      affected the  expeditious  disposal      of custody  cases  in  Courts.  The      prisoners are  very  much  agitated      over this.      9. The  production of  prisoners in      the Hospitals  outside the jail for      examination  or  treatment  by  the      experts is  not prompt  or  regular      due to want of Police Escorts.      10. Mental patients in the jail and      the prisoners with serious diseases      requiring  treatment   outside  the      jail are  compelled  to  remain  in      jail for  want of  accommodation in      such hospitals.      11.   The   place   and   procedure      followed for interviews between the      prisoners  their   kith  and   kin,      friends   and   visitors   is   not      satisfactory.      12.   Canteen   facilities   should      improve. The  sale of  articles  in      the  Canteen  at  the  price  above      market prices  to  make  profit  is      causing  great   hardship  to   the      prisoners." 9.   In view  of the  above conclusions,  the District Judge made certain  recommendations which are contained in para 24 of the report reading as below:      "24.   In   view   of   the   above      conclusions      the      following      recommendation   are    made    for      consideration and implementation:      1. P.W.D.  Authorities in charge of      the maintenance  of  the  buildings      and the premises of the jail are to      be   directed   to   maintain   the      buildings  properly   as  per   the      requirement in  the jail by getting      necessary funds from the Government      on   priority    basis.   Necessary      instructions may  be issued  to the      Government  in   this   regard   to      provide   funds   and   to   accord      permission.      2. Sanitation  in the jail premises      requires lot of improvement. P.W.D.      Authorities are  to be  directed to      repair the  existing pipe lines and      the sewerage  lines in  addition to      providing  Electric  pumps  to  the      bore-wells in the jail premises.

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    3. The  staff in  the jail hospital      has to be increased by providing at      least 2 more Doctors preferably who      have specialised  in the particular      field  where   the  prisoners   may      require their  services in  special      cases. One  Lade Medical Officer, a      Lady Nurse  and two lady attendants      for the  purpose of  attending  the      women prisoners.  The  location  of      their office may be provided in the      separate  block   meant  for  women      prisoners. If  regular  posting  of      Doctors  cannot  be  made  for  the      purposes stated above, the services      of   the    Doctors   from    other      Government Hospitals  in  Bangalore      may  be   secured  as   a   routine      periodically   or    in   case   of      emergencies by  providing them some      conveyance. It  is  suggested  that      doctors incharged  of the  Hospital      may visit  each  barrack  at  least      once in a week and meet the inmates      to know  their health  problems and      to treat  them in jail Hospital. In      case  of  emergency  as  agreed  by      them, they  may visit the prisoners      whenever   their    services    are      required.      4.  The  Jail  Authorities  may  be      directed to arrange for the regular      visit of  the  prisoners  to  their      homes or  their places periodically      as per  the rules without insisting      any deposit  or security  or police      report unless  it is inevitable and      in case  of emergency  like  death,      serious illness and other important      festivals,  functions  arrangements      should  be  made  for  their  visit      relaxing    all     the    required      formalities. By  way of  follow  up      action, the Jail Authorities may be      instructed to  submit the report of      the returns  to the prl. City Civil      & Sessions Judge, Bangalore once in      a month  in this regard in addition      to special  reports as  and then it      is  necessary   or   as   per   the      directions of  the prl.  City Civil      and Session  Judge, Bangalore.  For      this purpose  the  Home  Department      has  to   be  requested   to  spare      sufficient number of police Escorts      and the  vehicles as and when it is      required by  the Jail  Authorities.      If possible  as  suggested  by  the      Superintendent of  Jail, some fixed      number   of    escorts    may    be      permanently posted  to work  in the      jail to assist the Jail Authorities      in   cases   of   visits   due   to      emergencies.      5. The  Superintendent of  the jail

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    may be  instructed to  produce  the      UTPs before  the  Courts  in  which      their  cases  are  pending  on  the      dates  of   hearing  fixed  by  the      Courts regularly  and promptly. For      this purpose,  the Home  Department      of the  Government may be requested      to  spare   sufficient  number   of      police Escorts  and the vehicles as      and when it is required by the Jail      Authorities. The  Superintendent of      the Jail  has to  be instructed  to      submit a  report in  this regard at      least once  in a  month to the prl.      City  Civil   &   Sessions   Judge,      Bangalore   compliance    of   such      instructions.      6. The  Superintendent of  the jail      should  take   all  the   steps  to      produce  the   prisoners   to   the      Hospitals outside  the jail for the      purpose    of    examination    and      treatment whenever necessary as per      the opinion of the Jail Doctors and      for this  purpose  also,  the  same      procedure may be followed regarding      police Escort as stated above.      7.  All  the  hospitals  under  the      control of  the Government  who are      expected  to  treat  the  prisoners      either in  the normal  cases or  in      special  cases   may  be   strictly      instructed to  treat the  prisoners      either as  in-patients or otherwise      as per  the recommendation  of  the      jail Doctors and the Superintendent      of the  Jail without referring them      back to  the  jail  for  treatment,      particularly  in   case  of  mental      patients, the  NIMHANS  authorities      may be  requested to  treat them as      in-patients till they become normal      without referring  them back to the      jail.      8. It  is absolutely  necessary  to      provide proper  accommodation  with      sufficient space  of the interviews      between the  prisoners  with  their      kith and kin, friends and visitors.      The  procedure   which   is   being      followed at  present also  required      to be  modified as suggested in the      discussions stated  above in  para-      20. If  possible separate  portions      may be  made in  the  accommodation      for the  purpose of interviews. The      Superintendent of  the jail  may be      instructed to  submit the report in      this regard  at  least  once  in  3      months to  the prl.  City  Civil  &      Sessions Judge,  Bangalore who  may      review the  same issue instructions      as and when it is necessary.      9. Canteen  facilities in  the jail      require  improvements.   Some  more

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    articles for  day to day use of the      inmates may be sold in the Canteen.      The Superintendent  of the Jail may      in consultation  of  the  prisoners      submit a  report in  this regard to      the  prl.  City  Civil  &  Sessions      Judge,  Bangalore   mentioning  the      articles which  may be  sold in the      Canteen.   The   Jail   Authorities      should be  strictly instructed  not      to sell  any of the articles to the      prisoners at  a rate  more than the      market price  or  for  profit.  For      this purpose,  they may  adopt  any      procedure whereby  the articles can      be held  on the  Principle ‘no loss      no profit’ basis.      10. It may be necessary to instruct      follow  up   action  by   all   the      concerned Authorities  in regard to      the  implementation  of  the  items      stated above." 10.  We wish  to place  on record  our appreciation  for the admirable work done by the District Judge. 11.  Being concerned with a problem which is not confined to the happenings  in Central  Jail, Bangalore,  but which  are faced more  of less  by all  the persons  confined  in  1155 prisons of  different kinds in India, we have thought it fit not to  confine our  attention and concern to what was found in the  Central Jail by the District Judge. According to us, it would be more apposite to keep in view all the prisoners, whose population  at the  end of  1993 was 1,93,240, of whom 1,37,838 were unconvicted remandees or undertrials. 12.  It may  be  pointed  that  the  National  Human  Rights Commission is  also of  the view  that the  prison system as such is  in need  of reform,  nation-wide. (See para 4.18 of these aforesaid Report). 13.  The literature  on prison  justice  and  prison  reform shows that  there are  nine major problems which afflict the system and  which need  immediate attention. These are : (1) overcrowding; (2)  delay in  trial ;  (3) torture  and  ill- treatment;  (4)   neglect  of   health  and   hygiene;   (5) insubstantial food  and inadequate  clothing  ;  (6)  prison vices; (7)  deficiency in  communication; (8) streamlining o jail visits; and (9) management of open air prisons. 14.  We propose  to take each of the problems separately and express our  view as  to what  could reasonably  be done and should be done to take care of the same. Overcrowding 15. That  our jails  are overcrowded  is a  known  fact.  To illustrate, in Tihar Jail as against the housing capacity of 2,500 persons  in 1994-95,  there were  8,500 prisoners,  as mentioned in  Chapter 16 of ‘1 Dare’, a biographical work on Ms. Kiran  Bedi. Of  course, the percentage of over-crowding varies from prison to prison. 16.  Though the  aforesaid fact  is known, what is not known is  the   controversy  as  to  whether  overcrowding  itself violates any  constitutional  right.  This  question  arises because  overcrowding  contributes  to  a  greater  risk  of disease, higher  noise  levels,  surveillance  difficulties, which increases  the danger  level. This apart, life is more difficult for  inmates and  work more onerous for staff when prisoners are in over capacity. 17.  Though we  have no decision of ours yet on the subject, the American  Supreme  Court  in  two  major  decisions  had

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addressed itself  on overcrowding problem. First of these is Wolff v.  Mc Donnel,  418 US  539 (1974), involving pretrial detainees. The  Court held  that the  principle of ‘one man, one cell’,  cannot be  read in the Due Process Clause of the Fifth Amendment.  It was  further held  that the practice of placing two detainees in a cell meant for one person was not unconstitutional. Of  course, this view was taken because of the facts of that case where it was found that the detainees in the  federal Metropolitan  Correctional Centre  were  not required to  spend much  time in  their cells  - only 7 or 8 hours per  day. Further  more, they  were not exposed to the overcrowding for  very long as average stay was 60 days. The second decision  was in Rhodes v. Chapman, 452 US 337(1981). The Court  there was concerned with a convicted prisoner and examined the question whether overcrowding constituted cruel and unusual punishment. It did not read any violation of the Eighth Amendment  as there  was  no  evidence  that  double- celling had  inflicted "unnecessary  or wanton  pain or  was grossly disproportionate  to  the  severity  of  the  crimes warranting imprisonment"  (See, ‘American  Prison System’ by Richard Hawkins  ad Geoffery,  p.420 of  1989 edition).  The Court went  on to  conclude that  "the Constitution does not mandate comfortable prison".* *  Chapter   8  (Prisons  :  Cruel  and  Unusual  Punishment Controversy) of  ‘Hard Judicial  Decisions"  by  Phillip  J. Cooper contains a criticism of these judgments. 18.  Mention has  been made  of the  aforesaid two decisions despite there  being no  exact parallel  to the  Due Process Clause of the Fifth Amendment of American Constitution or of guarantee against cruel and unusual punishments mentioned in their Eighth  Amendment, in our Constitution, but Article 21 of  our   paramount  parchment   also  does  prohibit  cruel punishments, which  would be apparent from the decision of a three-Judge Bench  on Deena  vs. Union of India, AIR 1983 SC 1155 (=  1984 (1)  SCR  1),  in  which  execution  of  death sentence by  hanging was  challenged on  the ground of being cruel and barbarous. 19.   Even   if   overcrowding   be   not   constitutionally impermissible, there  is no  doubt that the same does affect the health of prisoners for the reason noted above. The same also very  adversely  affects  hygienic  condition.  It  is, therefore, to be taken care of. 20.  The recent decision of this Court requiring release on bail of  certain categories  of  undertrial  prisoners,  who constitute the  bulk of  prison population, has to result in lessening the  over capacity.  It would  he useful  to refer here to  the Seventy-Eighth  Report of the Law commission of Indian on ‘Congestion of Undertrial Prisoners in Jails’. The Commission  has  in  Chapter  9  of  the  Report  made  some recommendations acceptance of which would relieve congestion in  jails.   These  suggestions  include  liberalisation  of conditions of release on bail. It may be pointed out that it has already  been held by this Court in Babu Singh vs. State of U.P.,  AIR 1978  SC 527 (# 1978 (2) SR 777); and Gurbaksh Singh Sibbia  vs. State  of Punjab,  AIR 1980 SC 1632 (#1980 (3) SCR  383) that  imposing of  unjust or harsh conditions, while granting bail, are violative of Article 21. 20A. We  require   the   concerned   authorities   to   take appropriate decision  on  the  recommendations  of  the  Law Commission within six months from today. 21.  Overcrowding may  also  be  taken  care  of  by  taking recourse to  alternatives to incarceration. These being: (1) fine; (2)  civil commitment;  and (3) probation. There is an enlightened discussion  on these judicial choices in Chapter IV of  "Justices, Punishment,  Treatment" by Leonard Orland.

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In that  chapter (of  1983 edition)  the learned  author has referred to  many cases  on this subject and has pointed out the difference between "civil" and "penal" institutions from the perspective  of the  inmate. As to release on probation, it may  be stated  that it  really results  in suspension of required  to  execute  bond  under  the  provisions  of  the Probation of  Offenders Act,  1958, requiring maintenance of good conduct  during the probationary period, the failure to do which  finds the  concerned person  in prison again. That Act has provision of varying conditions of probation and has also set  down the  procedure to  be followed in case of the offenders failing to observe conditions. 22.  Overcrowding is  reduced by releases on parole as well, which is  a conditional release of an individual from prison after he  has served  part of the sentence imposed upon him. Various aspects  of parole  have been dealt in Chapter 11 of Professor Orland’s  aforesaid book.  In Suresh  Chandra  and krishan Lal (supra) liberal use of parole was recommended by this Court. 23.  Reference may  also  be  made  in  this  connection  to Chapter 20  of the  Report of  All India  Committee on  Jail Reforms (headed by Justice A.N. Mulla) (1980-83) Vol.I. That chapter deals  with  the  system  of  remission,  leave  and premature release. The Committee has mentioned about various types of  remission and  has made  some  recommendations  to streamline the  remission system.  As to  premature release, which is the effect of parole, the Committee has stated that this is  an accepted  mode of incentive to a prisoner, as it saves him  from the  extra period  of incarceration; it also helps in  reformation and  rehabilitation. The Committee has made certain  suggestions n  this regard  too. We direct the concerned authorities  to take  appropriate decision  on the suggestions within a period of six months from today. It may be pointed  out that  there  is  really  a  grievance  about allowing the recommendations to remain in cold storage. (See article of  T.  Ananthachari  "Human  Rights  Behind  Prison Walls"  published  at  pp.  35-47  of  the  1995  report  by Commonwealth Human  Rights Initiative (a NGO) titled ‘Behind Prison Walls  - Police,  Prisons and  Human Rights’).  While taking appropriate  decision, the  authorities  may  apprise themselves of  what has  been in Chapter 6 (headed ‘Parole’) of the British White Paper on ‘Crime, Justice and Protecting the Public’ (1990). 24.  There is  yet another  baneful effect  of overcrowding. The same  is that  it  does  not  permit  segregation  among convicts -  Those punished  for  serious  offences  and  for minor. The  result may  be that  hardened  criminals  spread their influence  over others.  Then, juvenile offenders kept in jails  (because of inadequacy of alternative places where they are  required to  be confined) get mixed up with others and they  are likely  to get spoiled further. So, problem of overcrowding is  required to be tackled in right earnest for a better future.                        Delay in Trial 25.  It is  apparent that delay in trial finds an undertrial prisoner (UTP)  in jail  for a  longer period while awaiting the decision  of the case. In the present proceeding, we are really not  concerned regarding  the causes of delay and how to remedy  this problem.  Much has  been said in this regard elsewhere and we do not propose to burden this judgment with this aspect.  We would rather confine ourselves as to how to take care  of the  hardship which is caused to a UTP because of the  delay in disposal of this case. The recent judgments of this Court (noted above) requiring release of UTP on bail where the trial gets protracted would hopefully take care to

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a great extent the hardship caused in this regard. We desire to see  full implementation  of the  directions given in the aforesaid cases. 26.  Another aspect  to which  we propose  to advert  is the grievance very  often made  about non-production  of UTPs in courts on remand dates. The District Judge in his report has also found this as a fact. The reason generally advanced for such non-production  is want of police escorts. It has to be remembered that  production before the court on remand dates is a  statutory obligation  and the  same has a meaning also inasmuch as  that the production gives an opportunity to the prisoner to  bring to  the notice  of  the  Court,  who  had ordered for  his custody,  if he has faced any ill-treatment or difficulty  during the  period of  remand. It is for this reason that actual production of the prisoner is required to be insured  by the  trial court  before ordering for further remand, as  pointed out  in a  number of  decisions by  this Court. 27.  We are  also conscious of the fact that police force in the country is rather over-worked. It has manifold duties to perform.  In   such  a   situation  it   is  a   matter  for consideration whether  the duty  of producing  UTP on remand dates should not be entrusted to the prison staff. To enable the prison  staff to  do so, it would, however, need escorts vehicles. 28.  We would  require the  concerned  authorities  to  take appropriate decision  in this  regard within a period of six months from today.                  Torture and ill-treatment 29.  There are  horror stories  in this regard. The cellular jail on  Port Blair resounds with the cries of the prisoners who were  subject to  various forms  of torture. This is now being brought  home in  the Light  and Sound programme being organised in  that jail,  which after  Independence has been declared as a national monument. Other jails would also tell similar stories. 30.  Apart  from   torture,  various   other  physical  ill- treatment like  putting of  fetters, iron bars are generally taken recourse  to in  jails. Some  of these  are under  the colour of provisions in Jail Manuals. The permissible limits of these  methods has  been spelt  out well  in many earlier decisions of  this Court to which reference has been already made. We do not propose to repeat. 31.  What we  would rather  state is  that if  what is being done to  prisoners in  the above regard is to enforce prison discipline mentioned in various Jail Manuals, there exists a strong need  for a  new All  India Jail Manual to serve as a model for  the country, which Manual would take note of what has been said about various punishments by this Court in its aforesaid decisions.  Not only  this, the century old Indian Prison Act, 1894, needs a through look and is required to be replaced by  a new  enactment which  would take  care of the thinking of  the Independent India and of our constitutional morose and mandate. The National Human Rights commission has also felt  that need  for such exercise, mention about which has been made in para 4.18 and 4.21 of the aforesaid Report. 32.  A reading  of the  Chapter IX on ‘Prison Discipline’ in RN Datir’s  book on  ‘Prison as a Social System’, shows that in  some   Jail  Manuals  even  flogging/whipping  has  been retained as  a punishment, which would not be permissible in view  of   the  right   enshrined  in   Article  21  of  the Constitution. We have mentioned about this only to highlight the need for a new model All India Jail Manual. 33.  It would  be apposite  in this  context to refer to the recent decision of the United States Supreme Court in Hudson

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v. Mc Millian, 403 US 1, in which that Court was required to decide whether the use of excessive physical force against a prisoner may  constitute cruel  and unusual  punishment even when  the  inmate  does  not  suffer  serious  injury.  This question was  answered in  affirmative by majority of 7 : 2. As already  mentioned. Article  21 of  our Constitution also does not permit cruel punishment. 34.  May we say that the ideal prison and the advance prison system which  the enlighted segment of the society visualise would not  permit torture and ill-treatment of prisoners. Of course, if  for violating  prison discipline some punishment is required to be given, that would be a different matter. Neglect of health and hygiene 35.  The Mulla  Committee has  dealt  with  this  aspect  in Chapter 6  and 7 of its Report, a perusal of which shows the pathetic position  in which  most of  the jails  are  placed insofar as  hygienic conditions  are concerned. Most of them also lack  proper facilities for treatment of prisoners. The recommendations of  the Committee  in this  regard are to be found in  Chapter 29.  We have  nothing useful to add except pointing  out   that  society   has  an  obligation  towards prisoners’ health  for two  reasons. First, the prisoners do not enjoy the access to medical expertise that free citizens have. Their incarceration places limitations on such access; no physician  of choice,  no second opinions, and few if any specialists. Secondly,  because of  the conditions  of their incarceration, inmates  are exposed  to more  health hazards than free  citizens.  Prisoners  therefore,  suffer  from  a double handicap. 36.  In   ‘American  Prison   System’  (supra)  there  is  a discussion at pages 411-13 as to whether a prisoner can seek any relief  from the  Court because  of neglect  of  medical treatment on the ground of violation of their constitutional right. Policy  makers may  bear  this  also  in  mind  while deciding about  the recommendations  of the  Mulla Committee Report, which they would so do within six months from today. Insubstantial food and inadequate clothing 37.  There is  not much to doubt that the rules contained in concerned Jail Manual dealing with food and clothing etc. to be given  to prisoners  are not  fully complied with always. All that  can usefully he said on this aspect is the persons who are  entitled to inspect jails should do so after giving shortest  notice  so  that  the  reality  becomes  known  on inspection. The  system of complaint box introduced in Tihar Jail during  some period  needs to be adopted in other jails also. The  complaint received  must be  fairly inquired  and appropriate actions against the delinquent must be taken. On top of  all, prisoners  must  receive  full  assurance  that whoever would  lodge a  complaint would  not suffer any evil consequence for lodging the same. Prison vices 38.  On this aspect nothing more is required to be said than what was  pointed out  in Sunil  Batra (II).  It may only be stated that some vices may be taken care of if what is being stated later on the subject of jail visits is given concrete shape. We have said so because many of the vices are related to  sexual   urge,  which  remains  unsatisfied  because  of snapping of marital life of the prisoner. If something could be done  to keep  the thread  of family  life unbroken  some vices many  take care  of themselves,  as sexual frustration may become tolerable. 39.  The aforesaid  seems to  us a more rational way to deal with prison  vices rather  than awarding  hard punishment to them. We  may not  be, however,  understood to  say that the jail authorities  need not take action against the prisoners

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indulging in  vices; but  in the situation in which they are placed, a sympathetic approach is also required.                 Deficiency in communication 40.  While in  jail, communication  with outside  world gets snapped with  a result that the inmate does not know what is happening even  to his  near  and  dear  ones.  This  causes additional  trauma.   A   liberalised   view   relating   to communication with  kith and  kin specially is desirable. It is hoped  that the  model All  India Jail  Manual, about the need of which we have already adverted, would make necessary provision in  this regard. It may be pointed out that though there may be some rationale for restricting visits, to which aspect  we   shell  presently   address,  but   insofar   as communication by  post is  concerned, there does not seem be any plausible reason to deny easy facility to an inmate.                 Streamlining of jail visits 41.  Prison visits fall into three categories: (1) relatives and friends;  (2) professionals; and (3) lay persons. In the first category  comes  the  spouse.  Visit  by  him/her  has special significance because a research undertaken on Indian prisoners sometime back showed that majority of them were in the age  group of  18 to  34, which  shows that most of them were young  and were  perhaps having  a married  life before their imprisonment.  For such  persons, denial  of  conjugal life during  the  entire  period  of  incarceration  creates emotional problems  also. Visits  by a spouse is, therefore, of great importance. 42.  It is,  of course,  correct that  at  times  visit  may become a  difficult task  for the visitors. This would be so where prisoners  are geographically isolated. This apart, in many  jails   facilities  available   to  the  visitors  are degrading. At many places even privacy is not maintained. If the offenders and visitors are screened, the same emphasises their separation  rather than  retaining  common  bonds  and interests. There  is then  urgent need  to streamline  these visits. 43.  Dr. Mir  Mehraj-ud-din in  his book ‘Crime and Criminal Justice System in India’ has dealt with different aspects of prison visits in Chapter VI headed ‘Resocialization : Search for Goals’.  The learned  author has said that frequent jail visits by  family members go a long way in acceptance of the prisoner by  his family  and small  friendly group after his release from  jail  finally,  as  the  visits  continue  the personal relationship during the term of imprisonment, which brings about a psychological communion between him and other members of the family. 44.  As to  visits by  professionals, i.e.  the lawyer,  the same has  to be  guaranteed to  the required  extent. If the prisoner be  a pre-trial  detainee, in  view  of  the  right conferred by Article 22(1) of the Constitution.                Management of open air prisons 45.  Open air  prisons play  an important role in the scheme of reformation  of a  prisoner which  has to  be one  of the desideratum of  prison management. They represent one of the most   successful   applications   of   the   principle   of individualization  of   penalties  with  a  view  to  social readjustment as  stated by  B. Chandra in the Preface to his book titled  "Open Air Prisons". It has been said so because release of  offenders on probation, home leave to prisoners, introduction of wage system, release on parole, educational, moral and  vocational training  of prisoners are some of the features of  the open  air prison (camp) system. Chandra has stated in  the concluding  portion of  Chapter 3 at page 150 (of  1984   edition)  that   in  terms   of  finances,  open institution is  far less  costly than a closed establishment

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and the  scheme has further advantage that the Government is able to  employ in  work, for  the benefit  of the public at large,  the  jail  population  which  would  have  otherwise remained unproductive. According to the author, the monetary returns are positive, and once put into operation, the camps pay for itself. 46.  Reference may  also be  made to what has been stated in Chapter 5  about the change in the human and social outlook, which activities  and programmes of these camps bring about. The whole  thrust is to see that after release the prisoners may not  relapse into  crimes, for  which purpose  they  are given incentives to live normal life, as they are trained in the fields  of agriculture,  horticulture etc. Games, sports and other  recreational facilities,  which form  part of the routine life  at  the  open  air  camps,  inculcate  in  the prisoners a sense of discipline and social responsibility. The prayers made regularly provide spiritual straight. 47.  While on  the subject  of prayer,  mention may  be made about the  experiment carried  out even  in the closed Tihar Jail sometime  in 1993-94,  when  Vipassana  meditation  was introduced in  a big  way, which  according to Tarsem Kumar, one of the Jail Superintendents of the Jail, brought about a radical change  in the living and thinking of the prisoners, as narrated in his book titled "Freedom Behind Bars". 48.  Open air  prison, however,  create  their  own  problem which are  basically of  management. We  are, however,  sure that these problems are not such which cannot be sorted out. For the  greater good  of the  society,  which  consists  in seeing that  the inmates  of a  jail  come  out,  not  as  a hardened criminal  but as  a reformed  person, no managerial problem is  insurmountable. So,  let more  and more open air prisons be  opened. To  start with,  this may be done at all the District Headquarters of the country.                          Conclusion 49.  We have  travelled a  long  path.  before  we  end  our journey, it  would be  useful to recapitulate the directions we have given on the way t various authorities. These are: (1)  To take  appropriate decision on the recommendations of the Law  Commission of  India made in its 78th Report on the subject of  ‘Congestion of  undertrial prisoners in jail’ as contained in Chapter 9. (Para 20A). (2)  To apply mind to the suggestions of the Mulla Committee as contained  in Chapter  20  of  Volume  I  of  its  Report relating to  streamlining the remission system and premature release (parole), and then to do the needful. (Para 23). (3)  To consider  the question  of entrusting  the  duty  of producing UTPs  on remand  dates to  the prison staff. (Para P7). (4)  To deliberate  about enacting  of  new  Prison  Act  to replace century  old Indian  Prison At,  1894. (Para 31). We understand that  the National  Human Rights  Commission  has prepared on  outline of  an  All-India  statute,  which  may replace the  old act;  and some  discussions at  a  national level conference also took place in 1995. we are of the view that all  the States must try to amend their own enactments, if any,  in harmony  with the  all India  thinking  in  this regard. (5)  To examine  the question  of framing of a model new All India Jail Manual as indicated in para 31. (6) To  reflect on  the recommendations  of Mulla  Committee made in  Chapter 29  on the subject of giving proper medical facilities and  maintaining appropriate  hygienic conditions and to take needed steps. (Paras 35 and 36). (7)  To ponder  about the  need of  complaint box in all the jails. (Para 37).

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(8)  To   think  about  introduction  of  liberalisation  of communication facilities. (Para 40). (9)  To take  needful steps  for streamlining of jail visits as indicated in para 42. (10) To ruminate on the question of introduction of open air prisons  at  least  in  the  District  Headquarters  of  the country. (Para 48). 50.  The end  of the  journey is  in sight.  We conclude  by saving that  the cognizance  of the  letter written  by Rama Murthy and  the efforts made thereafter to find out what was realty happening in the Central Jail of Bangalore, resulting in submission  of a  voluminous report  by  District  Judge, would not  prove to  be an  exercise in futility, if what we have stated  above is  taken  in  all  seriousness  and  our prisons become  reform houses  as well,  in which  case  the social and economic costs of incarceration would become more worth while. There seems to be no cause for disillusionment, despite what  has been  stated in this regard by Roy D. King and Rod  Morgan in  ‘The Future of Prison System’. According to us,  talk about  treatment and training in prisons is not rhetoric; it  can prove  to be  real,  given  the  zeal  and determination. And  we cannot  afford to fail in this sphere as a sound prison system is a crying need of our time in the backdrop of  great increase  in the numbers of prisoners and that too  of various  types and  from  different  strata  of society. 51.  Let us, therefore, resolve to improve our prison system by introducing new techniques of management and by educating the prison staff with our constitutional obligations towards prisoners. Rest  would follow, as day follows the night. Let the dawning  ray (of  hope) see the end of gloom cast on the faces of  majority of  prisoners and  let  a  new  awakening percolate every  prison wall.  Let  it  be  remembered  that "where there  is will,  there is  way". Will  there is,  way would be found. 52.  We   had  desired  to  dispose  of  the  writ  petition accordingly. But  as we  could  not  hear  all  the  States, because of  constraint of  time and as they have to be heard before giving  directions as  detailed above, let notices be issued on the Secretary to the Government of India, Ministry of Home  and the  Chief Secretaries  of all  the States  and Union Territories, as to why they should not be asked to act for above.  Let causes  be shown within three months and let the case be planed for further hearing thereafter soon.