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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.406/2013

RE - INHUMAN CONDITIONS IN 1382 PRISONS (II)    

O R D E R

Madan B. Lokur, J.

1. By  our  order  dated  5th February,  20161 we  had  drawn  attention  to

over-crowding  in  prisons  and  had  given  directions  which  would  assist  in

reducing the prison population and generally improve the living conditions of

prisoners.

2. When this petition was listed on 14th March, 2016 we had noted that the

Ministry of Women and Child Development of the Government of India had set

up a Committee on 24th February, 2016 for drafting a Manual similar to the

Prison Manual prepared by the Ministry of Home Affairs of the Government of

India concerning issues pertaining to juveniles in custody either in Observation

Homes or Special Homes or Places of Safety in terms of the Juvenile Justice

(Care and Protection of Children) Act, 2015.  We were informed that although

the Committee was required to submit its report by 31st May, 2016 the time

given was rather short.  We were in agreement with the Member Secretary of

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(2016) 3 SCC 700 W.P. (C) No.406/2013                                                                                                Page  1 of 7

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the Committee in this regard and had expressed the view that there was no need

to show undue haste in the preparation of the Manual or produce a half baked

document.   We  had  also  suggested  the  inclusion  of  representatives  from

academia and NGOs in the drafting process.          

3. The matter was again taken up on 6th May, 2016 when we were informed

by learned  Amicus  that the Manual for juveniles in custody would take about

three months for completion. With regard to over-crowding in jails, the learned

Amicus  submitted  that  there  are  several  jails  where  over-crowding is  to  the

extent of more than 150%, meaning thereby that there are more than one and a

half times the number of prisoners than the permissible limit.  It was submitted

that an excessive prison population has its own problems of hygiene, sanitation,

management, discipline etc. The problem of over-crowding cannot be looked at

in isolation. He submitted that in the first instance the States may be directed to

identify jails in which over-crowding is to the extent of 150% or more so that

further directions could be given.  On the basis of this submission we called for

information and now find that the situation continues to be not only tragic but

also pathetic.   Learned  Amicus  has drawn our  attention vide his  Note dated

20.9.2016 to over-crowding to the extent of 150% or more in jails in Assam (8),

Chhattisgarh  (17),   Jharkhand  (3),   Karnataka  (7),   Kerala  (21),   Madhya

Pradesh (5),  Maharashtra (16),  Rajasthan (21), Uttar Pradesh (47) and Delhi

(12).  It is unfortunate that in spite of our directions the prison authorities have

not been able to take any effective steps for reducing over-crowding in jails.

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4. On  the  submission  of  the  learned  Amicus for  issuance  of  further

directions, we had vide our order dated 6th May, 2016 expanded the mandate of

the under-trial Review Committee  to examine the cases of under-trials who fall

in the following categories:

a) Become eligible to be released on bail under Section 167(2)(a)(i)&(ii) of the Code read with Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (where persons accused of section 19 or section 24 or section 27A or for offences involving commercial quantity) and where investigation is not completed in 60/90/180 days;

b) Are imprisoned for offences which carry a maximum punishment of 2 years;

c)  Are detained under Chapter VIII of the Criminal Procedure Code i.e. under Sections 107, 108, 109 and 151 of Cr.P.C.;

d)  Become sick or infirm and require specialized medical treatment (S.437 of the Code);

e)  Women offenders (S.437 of the Code);

f) Are first  time male offenders between the ages 19 and 21 who are in under  trial  custody  for  offences  punishable  with  less  than  7  years  of imprisonment and have suffered at least 1/4th of the maximum sentence possible;

g) Are of unsound mind and must be dealt under Chapter XXV of the Code;

h) Are eligible for release under Section 437(6) of the Code, wherein in a case  triable  by  a  Magistrate,  the  trial  of  a  person  accused  of  any non-bailable offence has not been concluded within a period of sixty days from the first date fixed for taking evidence in the case;

5. We had also required the States and the Inspector General of Prisons to

prepare  a  Plan  of  Action either  to  reduce  over-crowding or  to  augment  the

infrastructure so that there is more space available for each prisoner.  

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6. On the basis of the above, we heard learned counsel for the parties and

the learned Amicus and find that more than sufficient time has elapsed but the

Manual for juveniles in custody has not yet been prepared by the Ministry of

Women and Child Development of the Government of India.  Accordingly, we

are left with no option but to direct the said Ministry to expedite the preparation

of the Manual and ensure that it is ready positively on or before 30 th November,

2016.    

7. We also find that not a single State or Union Territory has bothered to

prepare a Plan of Action and bring it to our notice or to the notice of the learned

Amicus. Consequently, we are left with no option but to direct the States and the

Inspector General of Prisons to prepare a Plan of Action as already directed on

6th May, 2016  for  reducing  the  prison  population.   In  this  context  we  may

mention that the learned Amicus has informed us on the basis of affidavits filed

by  some  of  the  States,  that  there  are  proposals  for  constructing  additional

barracks or jails but these appear to be ad hoc proposals with no time limit

specified for completion and in some cases it is not clear whether provision has

been made for providing resources for the construction.  A viable Plan of Action

should be prepared within the next six months and in any event by 31st March,

2017.   Information in  this  regard should be given to  the learned Additional

Solicitor General and the learned Amicus.  

8. We are a little distressed to note that even though this Court has held on

several  occasions  that  prisoners  both  under  trials  and  convicts  have  certain W.P. (C) No.406/2013                                                                                                Page  4 of 7

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fundamental rights and human rights, little or no attention is being paid in this

regard by the States and some Union Territories including the National Capital

Territory of Delhi.   Certainly fundamental rights and human rights of people,

however they may be placed, cannot be ignored only because of their adverse

circumstances.   We  need  only  remind  the  Union  of  India  and  the  State

Governments that as far back as in 1975 this Court reminded us in D. Bhuvan

Mohan Patnaik v. State of Andhra Pradesh2  (referring to a decade old decision

in State of Maharashtra v. Prabhakar Pandurang Sangzgiri3 ) that :

“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  conviction,  to  live  in  a prison-house entails  by its  own force  the  deprivation of  fundamental freedoms like the right to move freely throughout the territory of India or the right to “practise” 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.”

9. Similarly, a Constitution Bench of this Court held in Sunil Batra v. Delhi

Administration4 in paragraph 213 of the Report as follows:

“It is no more open to debate that convicts are not wholly denuded of their  fundamental  rights.  No  iron  curtain  can  be  drawn between  the prisoner and the Constitution. Prisoners are entitled to all constitutional rights  unless  their  liberty  has  been  constitutionally  curtailed  (see

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(1975) 3 SCC 185 3

AIR 1966 SC 424 4

(1978) 4 SCC 494 W.P. (C) No.406/2013                                                                                                Page  5 of 7

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Procunier v.  Martinex5).  However,  a  prisoner’s liberty  is  in  the  very nature or things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction  for  crime  does  not  reduce  the  person  into  a  non-person whose rights are subject to the whim of the prison administration and, therefore,  the  imposition  of  any major  punishment  within  the  prison system is conditional upon the observance of procedural safeguards (see Wolff v. McDonell.6).”

10. There are a host  of decisions rendered thereafter by this Court  on the

same subject of the fundamental rights and human rights of convicts and under

trial  prisoners  repeated  every  decade  over  the  last  so  many  years.  We may

mention only a few of them:  Charles Sobraj v. Supdt., Central Jail, Tihar,7

Francis Coralie Mullin v. Administrator, Union Territory of Delhi,8 Nilabati

Behera v. State of Orissa9 and D.K. Basu v. State of W.B.10 More recently, in

Mehmood  Nayyar  Azam  v.  State  of  Chhattisgarh11 this  Court  observed  in

paragraph 38 of the Report as follows:   

“It  is  imperative  to  state  that  it  is  the  sacrosanct  duty  of  the  police authorities to remember that a citizen while in custody is not denuded of his  fundamental  right  under  Article  21  of  the  Constitution.  The

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40 L Ed 2d 224 at 248 (1974) 6

41 L. Ed.2d 935 at 973 (1974)  7

(1978) 4 SCC 104 8

(1981) 1 SCC 608 9

(1993) 2 SCC 746 10

(1997) 1 SCC 416 11

(2012) 8 SCC 1 W.P. (C) No.406/2013                                                                                                Page  6 of 7

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restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary,  they  are  under  obligation  to  protect  his  human  rights  and prevent all forms of atrocities.”

Unfortunately, it seems that the views of this Court over the 50 years (since

Prabhakar Pandurang Sangzgiri in  1966) have continuously fallen on deaf

ears and the situation does not seem to be changing even now.  

11. Unless  due  importance  is  given to  the  fundamental  rights  and human

rights of the people, the right to life and the right to live with dignity under

Article 21 of the Constitution will have no meaning.   

12. Under  these  circumstances,  we are  constrained to  direct  the  Union of

India through the Ministry of Home Affairs to obtain the status of compliance of

our orders passed on 5th February 2016 and 6th May, 2016 as on 30th September,

2016.  The information should be collated by the Ministry of Home Affairs and

shared with the learned Additional Solicitor General and the learned Amicus so

that even the rights of prisoners, whether convicts or under trials are given due

importance.   The needful be done before the next hearing, that is 18th October,

2016.  

..……………………..J           (Madan B. Lokur)  

                                 ………………………J

New Delhi;                    (R.K. Agrawal) October 3, 2016

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