P&H HC Sets Aside Order Limiting Open Atmosphere Exposure Of High Risk Prisoners Saying Inmates Enjoy Basic Human Rights

                              While according the paramount importance to the basic human rights of even high risk prisoners, the Punjab and Haryana High Court in a most learned, laudable, landmark, logical and latest judgment titled Joginder Singh vs State of Punjab and others in CWP-3474-2021 (O&M) and cited in Neutral Citation No.=2023:PHHC:139790 and also cited in 2023 LiveLaw (PH) 248 that was pronounced as recently as on 02.11.2023 observed without mincing any words in no uncertain terms that “inmates are not to be unnecessarily subjected to cruel or degrading treatment”. We thus see that the Single Judge Bench comprising of Hon’ble Mr Justice Vinod S Bhardwaj has set aside an order that was passed by Additional Director General of Police (Jails), Punjab, which limited the release of prisoners lodged in high security zone to only two hours in the open atmosphere. The Bench said that, “Prisons/Correctional facilities being a crucial part of the Criminal Justice System, plays a significant role. It is paramount that the rehabilitation and reformation of offenders represent the ultimate aspiration of jail administration.”

            We must note that the Bench minced just no words to put across while setting aside the order that, “While the Court is conscious of the need to put an effective security mechanism to avoid any untoward incident, however, the pretext of security cannot be projected to deprive a prisoner of his basic rights. State would be within its power to take effective measures to undo threat but such measures need to satisfy the legal tests of human dignity and right to life.” It must also be noted that these observations had come in response to a plea challenging limitation of high risk prisoners release in the open atmosphere to one hour in the morning and one hour in the evening. While observing that the balance which needed to be maintained had not been struck by the impugned order, the Court allowed the plea.  

                  At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Vinod S Bhardwaj sets the ball rolling by first and foremost putting forth what Nelson Rolihlahla Mandela had said once famously that, “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

 As we see, the Bench then observes that, “The Constitution of India mandates equality before the law and equal protection of laws for every individual within the nation, a principle that extends to prisoners as well, who possesses certain guaranteed rights and must be treated with respect. The judiciary in India, including the esteemed Supreme Court, has time and again acknowledged and underscored the essential rights of prisoners. The Apex Court in Re- Inhumane Conditions in 1382 Prisoners dated 05.02.2016, W.P. (C) No. 406 of 2013 has explicitly stated that, “there could be several factors that lead a prisoner to commit a crime but nevertheless a prisoner is required to be treated as a human being entitled to all the basic human rights, human dignity and human sympathy.””

                              As it turned out, the Bench hastens to add in the next para that, “Justice Krishna Iyer in the case of Sunil Batra (II) vs. Delhi Administration, 1980 (3) SCC 488, hereinafter referred to as “Sunil Batra (II)” has eloquently expressed the similar view by following the excerpt from Sir Winston Churchill’s speech, it was astutely observed:

“Truly, this is a perspective-setter and this is also the import of the Preamble and Article 21 as we will presently see. We are satisfied that protection of the prisoner within his rights is part of the office of Article 32.””

                                       To put things in perspective, the Bench envisages in next para that, “Under comparable and regrettable circumstances, the present case has been brought before this Court challenging the order dated 23.12.2020 passed by the office of Additional Director General of Police (Jails), Punjab, Chandigarh, to the extent that the prisoners lodged in high security zone has been ordered to be released in the open atmosphere only for two hours i.e. for one hour in the morning and for one hour in the evening.”

                       Most significantly, the Bench minces absolutely no words to mandate that, “Prisons/Correctional facilities being a crucial part of the Criminal Justice System, plays a significant role. It is paramount that the rehabilitation and reformation of offenders represent the ultimate aspiration of jail administration. The fundamental principle of humanity is that every person, regardless of their legal status, deserves to be treated with respect and dignity. Inmates are not to be unnecessarily subjected to cruel or degrading treatment, thus upholding their basic human rights provided by The Constitution of India itself under Article 21. It is imperative that the rights inherent to their humanity be upheld, thus precluding inhumane or degrading treatment. This may also involves offering psychological support to help inmates. Noteworthy among these considerations is the imperative of allowing inmate’s access to adequate outdoor exposure, as the absence of such provisions may exacerbate tension, precipitate incidents of violence, and pose risks to the inmates’ well-being.”

                                       In hindsight, the Bench then recalls in the next para that, “Earlier also bunch of petitions have been filed before this court, main case bearing CWP No. 7882 of 2021 tilted as “Rajia versus State of Punjab and others” decided on 01.07.2021 challenging the similar order regarding custody of dangerous prisoners in separate high security zones and classification of prisoners as such is provided based upon the offences of which they are accused, being security threats, having history of escape, recommended by the local police for lodging in high security zone, habitual offenders and other sufficient reasons found by the competent authority. Relevant extract is reproduced as under:

“Security measures can be imposed only up to a limit and this limit is placed by Fundamental Rights guaranteed under Articles 14, 19 and 21 of the Constitution of India, which are available even to prisoners. Simultaneously, strict measures need to be adopted against jail personnel so that those guilty of aiding the criminals are punished in an exemplary manner. Such steps, based on available information, appear to be lacking in their quest for improving jail discipline and making prisons crime free. Instead, the authorities have gone overboard and have violated valuable Fundamental Rights of the prisoners. Intention behind the act is immaterial as the act fails the test of reasonableness. It is now well settled that prisoners are human beings despite their liberty having been curtailed. They may not enjoy all rights and freedoms guaranteed by the Constitution of India, yet, basic rights and liberties are available to them which are the rights guaranteed by Articles 14, 19 and 21 of the Constitution of India. Court process restricts the liberty of prisoners but the same courts also have the duty to monitor that the liberty is not restricted beyond the bounds of law. While doing so, the Courts do not become administrators of prisons, but act as the guardians of fundamental rights to which even a prisoner is entitled. In Sunil Batra vs. Delhi Administration, 1978 (4) SCC 494 (hereinafter referred to as Sunil Batra (I)), the Supreme Court of India in the words of Krishna Iyer, J. observed:

“Necessary sequitur is that even a person under death sentence has human rights which are non-negotiable and even a dangerous prisoner, standing trial, has basic liberties which cannot be battered away.”

The above was elaborated upon in ‘Charles Sobraj vs. Supdt. Central Jail, Tihar, 1978 (4) SCC 104’:“It is now well-settled, as a stream of rulings of Courts proves, that deterrence, both specific and general, rehabilitation and institutional security are vital considerations. Compassion wherever possible and cruelty only where inevitable, is the art of correctional confinement. When prison policy advances such a valid goal, the Court will not intervene officiously.”

A middle ground has been found between the ‘hands off’ doctrine and the ‘take over’ theory.

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Section 59 of the Prisons Act empowers the State Government to make rules consistent with the Act. In exercise of such powers, the Jail Manual has been framed, this being the updated version. Para 3 (q) defines dangerous prisoner. The same is extracted below:

(q) “Dangerous prisoner” means, any prisoner declared to be such by the Superintendent with reference to the character of such prisoner in pursuance of the provisions of Section 56 of the Prisons Act, 1894.”

Its plain reading makes it clear that the Jail Superintendent may declare any prisoner as such, however, in pursuance of Section 56 of the Prisons Act. Section 56 is regarding confinement in irons and is reproduced hereunder:

“56. Confinement in irons — Whenever the Superintendent considers it necessary (with reference either to the state of the prison or the character of the prisoners) for the safe custody of any prisoners that they should confined in irons, he may, subject to such rules and instructions as may be laid down the Inspector General with the sanction of the State Government, so confine them.”

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The final issue is regarding alleged solitary confinement. There is no dispute that each of the petitioners is being confined in a separate cell for 22 hours in a day. They are released from their respective cells for one hour in the forenoon and one hour in the evening. Is this solitary confinement?

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Except for one hour in the morning and one hour in the evening, the inmate is all by himself with his solitude and there is no limit on the period for which he will be so confined. Such confinement is not strictly solitary confinement but can be called quasi-solitary because the inmate is deprived of human company for extended lengths of time and such confinement has been held to be extremely harsh and violative of basic human rights which remain the entitlement of every prisoner according to Sunil Batra (II). It can thus not be justified even on grounds of maintenance of discipline and order and curtailment of crime. A prisoner remains a person and cannot be reduced to animal existence [these words have been taken from Sunil Batra (II)]. Such treatment completely discards the rehabilitative aspect of punishment, which is a major component in the philosophy of sentencing in every developed society. It is evident that the letter of law laid down in the path breaking judgments of Sunil Batra (I) and (II) is still to be fully assimilated and implemented. Hope expressed of replacing outdated prison law with more enlightened prescriptions, still remains a hope. The ground situation in this case is a little peculiar. On one hand, lies the danger of continuing crime and jail violence and on the other hand, lies the demand of human rights and constitutional rights. The action of confinement of individual prisoners in individual cells for most part of the day and for limitless periods is impermissible and has been held so. However, the result of such a direction would be the immediate release of notorious/hardened/dangerous criminals into ordinary prison life which may be a recipe for disaster. The threat held out by the actions of such desperate persons is real and cannot be ignored. The prison administration has already taken steps to make the areas of confinement communication dead zones and has beefed up security. Electronic means of surveillance and of suppressing communication of any sort have also been employed. Therefore, I see no reason to fear the petitioner and other similar prisoners to the extent of depriving them of their basic rights. The prison administration can surely come up with suggestions which would make the custody conform to the law of the land while meeting the security concerns.””

                                         It ought to be noted that the Bench then points out that, “In the matter of “Jasvir Singh and Another versus State of Punjab and Others” bearing CWP No. 5429 of 2010 decided on 29.05.2014 this court also has discussed at length the basic human rights of the prisoners and ruled as under:-

(18) A prison in civil society is the place for enforceability of law. All governmental systems provide incarceration through a judicial order only. The prison or the protectees living there are thus instruments and subjects of justice delivery system. The Judiciary as the principal executor and promoter of the rule of law has to have major stakes in respect of the conditions prevailing in the prisons. The duty of the Courts towards jail reforms has become heavier than before after the enforcement of our Constitution as Article 21 guarantees dignified life to one and all including the prison-inmates.  

(19) The Hon’ble Supreme Court in D. Bhuvan Mohan Patnaik & Ors. vs. State of Andhra Pradesh & Ors., (1975) 3 SCC 185 declared that convicts cannot be denied the protection of fundamental rights which they otherwise possess, merely because of their conviction. A convict whom the law bids to live in confinement though stands denuded of some of the fundamental rights, like the right to move freely or the right to practice a profession, nonetheless, such convict shall continue to enjoy other constitutional guarantees including the precious right guaranteed by Article 21 of the Constitution.

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(21) In his one of the many salutary and historical decision [Sunil Batra vs. Delhi Administration & Ors., (1978) 4 SCC 494 (popularly known as Sunil Batra-I)], Krishna Iyer, J considered the core issue, whether a prison ipso facto outlaw the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement or the prison total eclipses judicial justice for those incarcerated under the orders of a judicial Court? The dictum very emphatically espoused the cause of jail-inmates holding that “Prisons are built with stones of Law’ (sang William Blake) and so, when human rights are hashed behind bars, constitutional justice impeaches such law. In this sense, courts which sign citizens into prisons have an onerous duty to ensure that, during detention and subject to the Constitution, freedom from torture belongs to the detenu.”

(22) Sunil Batra-I, amongst other things, ruled that the condemned prisoner (like Batra) shall be merely kept in custody and shall not be put to work like those sentenced to rigorous imprisonment. Such like convicts shall be entitled to amenities of ordinary inmates in the prison like games, books, newspapers, reasonably good food, the right to expression, artistic and other, and normal clothing and bedding. It was further held that condemned prisoners cannot be denied their right to eat, sleep, work or live together except on specific grounds warranting such a course etc. etc.

(23) Sunil Batra-I marched far ahead of its times in emphasising re-humanisation of the prisoners. It stated that “positive experiments in re-humanization-meditation, music, arts of self-expression, games, useful work with wages, prison festivals, sramdan and service-oriented activities, visits by and to families, even participative prison projects and controlled community life, are among the rehumanization strategies which need consideration. Social justice, in the prison context, has a functional versatility hardly explored.”

(24) The reforms in prison administration also caught attention in Sunil Batra-I which not only emphasized the need of legislative intervention for replacement of obsolete prison laws but also for the re-orientation and re-visitation of prison house and practices, for “no longer can the Constitution be curtained off from the incarcerated community since pervasive social justice is a fighting faith with Indian humanity.” Thus, in the context of Section 30(2) of the Prison Act it was held that such prisoner is not to be completely segregated except in extreme cases of necessity which must be specifically made out.

(25) Sunil Batra vs. Delhi Administration, (1980) 3 SCC 488 (known as Sunil Batra-II), phenomenally liberated the jail inmates from the atrocities inflicted through mental torture, psychic or physical pressure and it brought a catenation of radical changes in prison conditions like

(i) Separation of under-trials from convicts in jails;

(ii) Their right to invoke Article 21 of the Constitution;

(iii) Separation of young inmates from adults;

(iv) Liberal visits by family and friends of prisoners;

(v) Ban on confinement in irons;

(vi) The duties and obligations of the Courts with respect to rights of prisoners; and

(vii) Re-defining the duties of District Magistrate etc.

(26) Sunil Batra-II delved deeper into the petrifying effects of loneliness of jail-inmates as is evident from the following passage:-

“Visits to prisoners by family and friends are a solace in insulation; and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow-men, parents and other family members cannot be denied in the light of Art. 19 and its sweep.”

(27) It further noticed that even as per the 1973 report of National Advisory Commission “prisoners should have a ‘right’ to visitation” and that “correctional officials should not merely tolerate visiting but should encourage it, particularly by families…

‘…it also urged that corrections officials should not eavesdrop on conversations or otherwise interfere with the participants’ privacy”. Sunil Batra-II very forcefully ruled that “we see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, subject to considerations of security and discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners’ kit of rights and shall be respected.”

(28) Several maladies within the jail precincts including the victimization of young inmates at the hands of adults drew attention in Sunil Batra-II, prompting the Court to say that:-

“In the package of benign changes needed in our prisons with a view to reduce tensions and raise the pace of rehabilitation, we have referred to acclimatization of the community life and elimination of sex vice vis a vis prisoner we have also referred to the unscientific mixing up in practice of under-trials, young offenders and long-term convicts. This point deserves serious attention.” (29) The research conducted by a British author on the pitiable jail conditions in developed nations, depicting psycho stress and pressure on the prisoners sentenced for long terms, overcrowding in an area of limited size, unisexual agglomeration, the clash of personalities and the conflict of interests, physical violence for settlement of dispute in common and the impact of such conditions on the young inmates, was noticed with approval by the Hon’ble Supreme Court in Mithu vs. State of Punjab, (1983) 2 SCC 277.

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(32) Francis Coralie Mulin vs. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608 expanded the expression “personal liberty” embedded in Article 21 of the Constitution in the context of the rights of a detenue and it held that the prisoner or detenue has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. The Court held, in no uncertain terms, that no law which authorizes and no procedure which leads to cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness and thus would plainly be void and violative of Articles 14 & 21.

(33) Several other landmarks giving wider connotation to prisoner’s rights within the four walls of a jail including (i) State of Maharashtra v. Prabhakar Pandurant Sanzgiri AIR 1966 SC 424; (ii) Sheela Barse vs. State of Maharashtra (1983) 2 SCC 96; and (iii) Ramamurthy vs. State of Karnataka, (1997) 2 SCC 642, are not being elaborated here to avoid multiplicity.

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(39) The United Nations’ Basic Principles for the Treatment of  Prisoners, 1990 states that “except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.”

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(47) The US Supreme Court by majority upheld in principle the view of the District Court and ruled that “as a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the Law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment”. It further said “to incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates ‘may actually produce physical torture or a lingering death’.”. The Court deviated from its previous views in some of the cited cases and very emphatically ruled that “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society…” and that “…Courts may not allow Constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration”

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(87) The legislative or executive, all policies, ought to remain vibrant and dynamic as the static or stale concepts cannot address all contemporary issues. Unfortunately, the in vogue executive policies on the rights of jail inmates are unevenly loaded with the pre-Independence mindset. The Punjab Jail Manual narrates the powers of jail staff and the obligations of convicts in such a tell-tale manner that the ‘prisons’ can be likened to the ‘chambers of torture’, as if Article 21 of the Constitution and dozens of human rights are still alien to prison-residents.

(88) Jail reforms have been the priorities of none. A little improvement in guaranteeing basic human rights, though still far from satisfactory, has happened with the tireless efforts of the Indian judiciary and a constant monitoring through jail inspections by the District and High Courts with due help from the public spirited organizations and individuals from the civil society. None of the serious issues like overcrowding, lack of clean and sufficient toilets, requisite and healthy food, medical facilities, telecommunication facilities or re-orientation have been addressed nor there appears to be any commitment of the executive in this direction. There are no comprehensive plans for rehabilitation and resettlement of the convicts on their release and many of them step out of a dark hole to fall into a darker ditch.

(89) There can be no quarrel and as rightly observed by AP High Court in Ms.G. Bhargava (supra) also that the issues like facilitation of conjugal visits of convicts for procreation essentially fall within the domain of policy makers and it has to be left to them to evolve an effective mechanism whether by way of legislation or through executive decision. However, what cannot be overlooked is that the convicts or other jail inmates are a class of persons who have been separated from society by the Courts in performance of their sovereign duties. Jails and other Correctional Centres are the extended limbs of justice delivery system as a measure for the enforcement of judicial verdicts. The management, conditions of living and future responsibilities of the inmates inside the jails etc., cannot be left to the sole desire or discretion of the executive. It is rather the responsibility of Courts to ensure that the rights of every resident of prison(s) or correctional home(s) are duly protected and irrespective of the financial constraints which is the oft-offered explanation by a State, the conditions of living, re-orientation or rehabilitation of the convicts is given effect under the direct supervision, command and control of the Courts.

(90) The directions for re-visiting the legislative or executive policy regime which are implicit in the observations made hereinabove are, however, subject to the caveat and conditions like – (i) the gravity of the offence committed by a convict and its likely effect on the society in the event of temporary release; (i) likelihood of absconding in the case of offenders of heinous crimes; (ii) good behavior while in jail; (iii) duration of the actual sentence already undergone; (iv) the expected date of release on completion of a tenure sentence; (v) pre-conviction conduct of the convict; etc. etc.”

                                     While citing the relevant case law, the Bench then mentions in next para that, “The Hon’ble Supreme Court in the case of State of A.P. Vs. Challa Ramkrishna Reddy & Ors. (2000) 5 SCC 712, held that a prisoner, whether a convict or under-trial, does not cease to be a human being and, while lodged in jail, he enjoys all his fundamental rights guaranteed by the Constitution of India including the right to life guaranteed by the Constitution.”

                                          While citing yet another relevant case law, the Bench states in next para that, “The Apex Court in the case of T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68, held that fundamental rights under Articles 14, 19 and 21 of the Constitution of India are available to the prisoners as well as freemen.”

                                   In addition, the Bench further while citing yet another relevant case law observes that, “In the case of Upendra Baxi v. State of U.P., (1983) 2 SCC 308, the Supreme Court gave various directions in order to ensure that the inmates of the protective Home at Agra did not continue to live in inhumane and degrading conditions and that the right to live with dignity enshrined in Article 21 of the Constitution was made real and meaningful for them.”

                                     Most forthrightly and most commendably, the Bench propounds in next para that, “While the Court is conscious of the need to put an effective security mechanism to avoid any untoward incident, however, the pretext of security cannot be projected to deprive a prisoner of his basic rights. State would be within its power to take effective measures to undo threat but such measures need to satisfy the legal tests of human dignity and right to life. A balance which needs to be maintained has not been struck in the present case. The order fails to satisfy the said tests.”

                                         What’s more, the Bench directs in the next para that, “The order dated 23.12.2020 to the extent of para 2A passed by the authorities does not seem to be justified, as per the reply filed by them or satisfy the legal principles prescribed in law to protect the rights of the prisoners. The said order dated 23.12.2020 issued by the Additional Director General of Police (Jails) Punjab, is accordingly set aside at this stage to the effect of above para 2A thereof.”

                 For sake of clarity, the Bench clarifies in the next para stating that, “The setting aside of the above order shall, however, not operate as a bar against the State to implement such measures as it deems appropriate and satisfy the requirements of the basic fundamental rights to an inmate.”

                                      Finally, the Bench then concludes by holding in the last para that, “The petition stands disposed of accordingly.”

                                 In essence, we thus see that the Punjab and Haryana High Court has batted most strongly for protecting and preserving the basic human rights of even the high risk prisoners. There can be thus no gainsaying that the Court has thus very rightly set aside the order limiting open atmosphere exposure of high risk prisoners to two hours only. No denying it!

Sanjeev Sirohi

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