# [2017] 14 S.C.R. 519

- **Citation:** [2017] 14 S.C.R. 519
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2017-14-s-c-r-519-31998
- **Pages:** 35

## Headnote

Human Rights - Custodial death - Unnatural deaths in
prisons - Remedial steps - Letter by (Retd.)Chitf Justice R. C. Lahoti
highlighting unnatural deaths in prisons - Letter treated as a public
C
interest litigation - Held:. Death is 'unnatural· when its causes are
external. such as intentional injury (homicide, suicide) - Steps are
being taken in some form or the other by Central Government and
State Governments to ameliorate the conditions of prisoners across
the country and thereby reduce the number of unnatural deaths -
However, it is time for the State to go beyond projections through
D
circulars and qdvisories and actually come to grips with reality as
it exists in a very large number of prisons - Guidelines on
Investigating Deaths in Custody issued by International Committee
of the Red Crdss (ICRC), to be circulated and considered by Central
Government and all the State Government~ - Further. in relation to
E
suicides in prisons, the monograph published by National Human
Rights Commission (NHRC) containing actionable points for suicide
prevention programmes, also referring to certain communications
issued by NHRC from time to time on the aspect of custodial deaths,
to be freely distributed amongst the staff and prisons all over the
country being a document of immense utility insofar as suicide . F
prevention in prisons is concerned - Directions issued - Public
Interest Litigation - Constitution of India - Art.21 and VII',, Schedule,
Entry 4. List II - Nelson Mandela Rules - n: 58-63 and 71 - Model .
Prison Manual 2016 - Chapter VII. XIII, XXJ, XXll and XVI - Code
of Criminal Procedure. 1973 - s.176(1A) - Juvenile Justice (Care
G
and Protection of Children) Act.· 2000 - Juvenile Justice (Care and
Protection of Children) Act. 2015.
· .. ·
Human Rights -·Prison Reforms - Management of Prisons -
'Performance Audit' by Comptroller and Auditor General (CAG) -
Discussed.
· ··
519
H
520
SUPREME COUIU REPOJUS
[2017] 14 S.C.R.
A
Puh!ic /all' remedy-· Human Rights - Unnatural deaths in
I3
c
D
l~ustodv - Compensation for - Discussed.
Human Rights ·- Need for Prison ref(mns ·-Criminal Justice
System -
Theo1)' of retribution and deterrence vis-a-vis RefOrmation
and Rehabilitation - Discussed.
Human Nights ··· Nature of -- Held: Human rights are not
depende11t on the status of a person !mt are universal in nmure.
Human Rights - Custodial deaths o(chi!dre11 in Child Care
Institutions ··· Discussed - Child and Family Welfi1re.
Issuing directions, the Court
HELD: lJ On the issue of defining natural and unnatural
deaths, attention was drawn to the Guidelines on Investigating
Deaths in Custody issued by the International Committee of the
Red Cross (lCRC). According to the ICRC, 'death' is the
irreversible cessation of all vital functions, including brain activity.
Death is 'natural' when it is caused solely by disease and/or the
aging process. It is 'unnatural' when its causes are external, such
as intentional injury (homicide, suicide), negligence or
unintentionalin,iury (dc:ith hy accident). The guidelines provided
by the ICRC deserve considcrnliou and circulation by the Central
Government and all the State Governments. [Para 9] (530-A-CJ
E
National Human Rights Commission {NHRC) ancl suicide
prevention
1.2 A disproportionately large number of unnatural deaths
are attributable to suicides. Jn relation to suicides in prisons, the
NHRC has published a monograph sometime in December 2014
F
entitled "Suicide in Prison - prevention strategy and implication
from human rights and .legal points of view". This monograph
records that during the period 2007-2011, deaths in prisons on
account of suicide formrd 71 % of the total number of unnatural
deaths. The average suicide rate amo111~ the genernl public for
this period is 11 (per 100,000) whe.~·eas the average suicide rate
G
in prison is 16.9 (per 100,000). In other words, the average
suicide rate in prisons is over 50''/o more than in normal
conditions. The monograph refers to certain communica

## Text

_Characters 0–39,963 of 79,611. This is a partial read: ask again with offset=39963 for what follows._

[2017] 14 S.C.R. 519.
RE- INHUMAN CONDITIONS IN 1382 PRISONS
A
WITH
I.A. No. 68248 of2017
· (Writ Petition (Civil) No. 406 of2013)
SEPTEMBER 15,2017
B
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ,)
Human Rights - Custodial death - Unnatural deaths in
prisons - Remedial steps - Letter by (Retd.)Chitf Justice R. C. Lahoti
highlighting unnatural deaths in prisons - Letter treated as a public
C
interest litigation - Held:. Death is 'unnatural· when its causes are
external. such as intentional injury (homicide, suicide) - Steps are
being taken in some form or the other by Central Government and
State Governments to ameliorate the conditions of prisoners across
the country and thereby reduce the number of unnatural deaths -
However, it is time for the State to go beyond projections through
D
circulars and qdvisories and actually come to grips with reality as
it exists in a very large number of prisons - Guidelines on
Investigating Deaths in Custody issued by International Committee
of the Red Crdss (ICRC), to be circulated and considered by Central
Government and all the State Government~ - Further. in relation to
E
suicides in prisons, the monograph published by National Human
Rights Commission (NHRC) containing actionable points for suicide
prevention programmes, also referring to certain communications
issued by NHRC from time to time on the aspect of custodial deaths,
to be freely distributed amongst the staff and prisons all over the
country being a document of immense utility insofar as suicide . F
prevention in prisons is concerned - Directions issued - Public
Interest Litigation - Constitution of India - Art.21 and VII',, Schedule,
Entry 4. List II - Nelson Mandela Rules - n: 58-63 and 71 - Model .
Prison Manual 2016 - Chapter VII. XIII, XXJ, XXll and XVI - Code
of Criminal Procedure. 1973 - s.176(1A) - Juvenile Justice (Care
G
and Protection of Children) Act.· 2000 - Juvenile Justice (Care and
Protection of Children) Act. 2015.
· .. ·
Human Rights -·Prison Reforms - Management of Prisons -
'Performance Audit' by Comptroller and Auditor General (CAG) -
Discussed.
· ··
519
H
520
SUPREME COUIU REPOJUS
[2017] 14 S.C.R.
A
Puh!ic /all' remedy-· Human Rights - Unnatural deaths in
I3
c
D
l~ustodv - Compensation for - Discussed.
Human Rights ·- Need for Prison ref(mns ·-Criminal Justice
System -
Theo1)' of retribution and deterrence vis-a-vis RefOrmation
and Rehabilitation - Discussed.
Human Nights ··· Nature of -- Held: Human rights are not
depende11t on the status of a person !mt are universal in nmure.
Human Rights - Custodial deaths o(chi!dre11 in Child Care
Institutions ··· Discussed - Child and Family Welfi1re.
Issuing directions, the Court
HELD: lJ On the issue of defining natural and unnatural
deaths, attention was drawn to the Guidelines on Investigating
Deaths in Custody issued by the International Committee of the
Red Cross (lCRC). According to the ICRC, 'death' is the
irreversible cessation of all vital functions, including brain activity.
Death is 'natural' when it is caused solely by disease and/or the
aging process. It is 'unnatural' when its causes are external, such
as intentional injury (homicide, suicide), negligence or
unintentionalin,iury (dc:ith hy accident). The guidelines provided
by the ICRC deserve considcrnliou and circulation by the Central
Government and all the State Governments. [Para 9] (530-A-CJ
E
National Human Rights Commission {NHRC) ancl suicide
prevention
1.2 A disproportionately large number of unnatural deaths
are attributable to suicides. Jn relation to suicides in prisons, the
NHRC has published a monograph sometime in December 2014
F
entitled "Suicide in Prison - prevention strategy and implication
from human rights and .legal points of view". This monograph
records that during the period 2007-2011, deaths in prisons on
account of suicide formrd 71 % of the total number of unnatural
deaths. The average suicide rate amo111~ the genernl public for
this period is 11 (per 100,000) whe.~·eas the average suicide rate
G
in prison is 16.9 (per 100,000). In other words, the average
suicide rate in prisons is over 50''/o more than in normal
conditions. The monograph refers to certain communications
issued by the NHRC from time to time on the aspect of custodial
deaths. The study conducted by the NHRC as reflected in the
H
RE- INHUMAN CONDITIONS IN 1382 PRISONS
521
monograph suggests that there are two primary causes for all jail A
suicides - the first is the environment in the jail, which is
apparently 'conducive' to suicidal behaviour, and the second is
the crisis situation faced by an inmate. [Paras 10, 11] [530-C-G)
l.3 The NHRC has suggested various protective factors
or measures that could be employed to reduce the number of B
suicides in prisons. In its conclusion, the NHRC has recorded
that the success of efforts to prevent suicides in prisons depends
on the ability and willingness to identify the vulnerability of each ·
prisoner, provide necessary supervision and support and offer
alternative ways of coping and reducing emotional distress. The
monograph prepared by the NHRC deserves to be freely
distributed amongst the staff and prisons all over the country
since it is a document of immense utility insofar as suicide
prevention in prisons is concerned. lParas 13-15) {531-E-F, GH; 532-B]
The need to reform
l.4 Steps are being taken in some form or the other by the
Central Government and hopefully by the State Governments to
ameliorate the conditions of prisoners across the country and
thereby reduce the number of unnatural deaths. These steps give
an impression that there is nothing to be seriously worried about.
However, the statistics provided by the National Crime Records
Bureau (NCRB) reflect the ground reality and dispel that
impression. It is time for the State to go beyond projections
through circulars and advisories and actually come to grips with
reality as it exists in a very large number of prisons. What is
practised in our prisons is the theory of retribution and deterrence
and the ground situation emphasizes this, while our criminal
justice system believes in reformation and rehabilitation and that
c
D
E
F
·is why handcuffing and solitary confinement are prohibited. It is
this 'rejection' of the philosophy of our criminal justice system
that leads to violence in prisons and eventually unnatural deaths.
G
This Court has time and again emphasized the importance of
Article 21 of the Constitution and the right to a life of dignity.
There must be a genuine desire to ensure that the guarantee to
a life of dignity is provided to the extent possible even In prisons,
otherwise Article 21 of the Constitution will remain a dead letter.
H
522
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 14 S.C.R.
It must be appreciated by the State that the common person does
not violate the law for no reason at all. It is circumstances that
lead to a situation where there is a violation of law. On many
occasions, such a violation may be of a trivial nature or may be a
one-time aberration and, in such circumstances, the offender has
to be treated with some degree of humanity. At least in such cases,
i:etribution and deterrence cannot be an answer to the offence
and the offender. Unless the State changes this mindset and takes
steps to give meaning to life and liberty of every prisoner, prison
reforms can never be effective or long lasting. fParas 49, 501
[547-E-H; 548-A-D]
.
The need to compensate
l.5 Over the last several decades this Court and almost
every High Court has relied on Article 21 of the Constitution
and thought it appropriate to compensate the next of kin for an
unnatural custodial death. The constitutional courts can go on
delivering judgment after judgment on this issue and award
compensation, but unless the State realizes that custodial death
is itself a crime and monetary compensation is not necessarily
the only appropriate relief that can be granted to the next of kin
of the deceased, such unnatural deaths will continue unal~atcd.
Therefore, what is needed is a review of all prisons with a
l~umanitarian nuance. Over the last several years, there have
been discussions on the rights of victims and one of the rights of
a victim of crime is to obtain compensation. Schemes for victim
· compensation have been framed by almost every State and that
is a wholesome development.. But it is important for the Central
Government and the State Governments to realize that persons
who suffer an unnatural death in a prison are also victims -
sometimes of a crime and sometimes of negligence and apathy
or both. There is no reason at all to exclude their next of kin
from receiving compensation only because the victim of an
unnatural death is a criminal. Human rights are not dependent
G on the status of a person but are universal in nature. Once the
issue is looked at from this perspective, it will be appreciated
that merely because a person is accused of a crime or is the
perpetrator of a crime and in prison custody, that person could
nevertheless be a victim of an unnatural death. Hence the need
H
to compensate the next of kin.[ Paras 53, 54] [548-G-H; 549-A-D]
RE- INHUMAN CONDITIONS IN 1382 PRISONS
523
Custodial death of Children
A
2. One of the issues not touched upon relates to the
custodial death of children in child care institutions under the
.Juvenile Justice (Care and Protection of Children) Act, 2000 as
well as the Juvenile .Justice (Care and Protection of Children)
Act~ 2015. There is no documentation on the number of unnatural B
deaths (if any) of children in child care institutions and this should
now be on the agenda of the Central Government and the State
Governments (particularly the Department concerned with the
welfare of children) with far greater concern than has been shown
so far. lt is time that unnatural deaths of children in child care
. institutions .arc seriously looked into by all concerned if the C
children of our country arc to be provided with a better future.
[Para 57] (549-E-F, G-H; 550-A)
.Directions
3.l The Secretary General of the Supreme Court will
transmit a copy of this decision to the Registrar General of every
D
High Court within one week with a request to the Registrar
General to place it before the Chief Justice of the High Court.
The Chief Justice of the High Court is requested to register a
suo motu public interest petition with a view to identifying the
next of kin of the prisoners who have admittedly died an unnatural
death as revealed by the NCRB during the period between 2012
and 2015 and even thereafter, and awllrd suitable compensation,
unless adequate compensation has already been awarded. [Para
57] [550-C-D]
3.2 The Union of India through. the Ministry of Home Affairs
will ensure circulation within one month and in any event by 31st
October, 2017 of (i) the Model Prison Manual, (ii) the monograph
prepared by the NHRC entitled "Suicide. in Prison - prevention
strategy and implication from human rights and legal points of
view", (iii) the communications sent by the NHRC (iv) the
compendium of advisories issued by the Ministry of Home Affairs
to the State Governments, (v) the Nelson Mandela Rules and
(vi) the Guidelines on Investigating Deaths in Custody issued by
the International Committee of the Red Cross to the Director
General or Inspector General of Police (as the case may be) in
charge of prisons. in every State and Union Territory. All efforts
E
F
G
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524
SUPREME COURT REPORTS
[2017] 14 S.C.R.
A
should be made, as suggested by the NHRC and others, to reduce
and possibly eliminate unnatural deaths in prisons and to
document each and every death in prisons - both natural and
unnatural. [Para 571 [550-E-GJ
3.3 The Union of India through the Ministry of Home Affairs
B will direct the NCRB to explain and clarify the distinction between
unnatural and natural deaths in prisons as indicated on the website
of the NCRB and in its Annual Reports and also explain the subcategorization 'others' within the category of unnatural deaths.
The NCRB should also be required to sub- categorize natural
deaths.The sub-categorization and clarification should be
C
complied with by 31st October, 2017. [Para 57] [550-G; 551-A]
3.4 The State Governments should, in conjunction with the
State Legal Services Authority (SLSA), the National and State
Police Academy and the Bureau of Police Research and
Development conduct training and sensitization programmes for
D senior police officials of all prisons on their functions, duties and
responsibilities as also the rights and duties of prisoners. A copy
of this order be sent by the Registry of this Court to the MemberSecretary of each SLSA to follow-up and ensure compliance. [Para
57] 551-B-C]
E
F
3.5 The State Governments arc directed to appoint
counselors and support persons for counselling prisoners,
particularly first-time offenders. In this regard, the services of
recognized NGOs can be taken and encouraged. [Para 57] [551D-E]
3.6 While visits to prison by the family of a prisoner should
be encouraged, it would be worthwhile to consider extending the
time or frequency of meetings and also explore the possibility of
using phones and video conferencing for communications not only
between a prisoner and family members of that prisoner, but also
between a prisoner and the lawyer, whether appointed through
G the State Legal Services Authority or otherwise. [Para 57] [551E-F]
H
3.7 The Chief Justice of every High Court is requested, in
the capacity of Patron-in-Chief of the State Legal Services
Authority, to take up this initiative and, if necessary, set up a
Committee headed preferably by the Executive Chairperson of
RE- INHUMAN CONDITIONS TN 1382 PRISONS
525
the State Legal Se'rvices Authority to implement the directions A
given above. [Para 57] [551-H; 552-A]
3.8 The State Governments are directed to study the
availability of medical assistance to prisoners and take remedial
steps wherever necessary. (Para 571 [552-C-D]
3.9 The State Governments arc directed to constitute an B
appropriate Board of Visitors in terms of Chapter XXIX of the
Model Prison Manual indicating their duties and responsibilities.
This exercise should be completed by 30th November, 2017. [Para
57] [552-E-F]
3.10 The suggestion of encouraging the establishment of C
'open Jails' or 'open prisons' is certainly worth considering. [Para
571 [552-F)
3.11 The Ministry of Women & Child J)evelopment of the
Government of India which is concerned with the implementation
of Juvenile Justice (Care and Protection of Children) Act, 2015
is directed to discuss with the concerned officers of the State D
.. -, Governments and formulate procedures for tabulating the number
of children (if any) who suffer an unnatural death in child_ care
institutions where they arc kept in custody either because they
are in conflict with law or because they need care and protection.·
Necessary steps should be tak!!n in this regard by 31st J)ecember,
E
2017. [Para 57) [552-A-B)
Rudu! Sah " State of Bihar (1983) 4 S.CC 141 : [1983]
3 SCR 508; SebastianM. Hongrayv. Unionoflndia{1984)
3 SCC 82 : [1984] 3 SCR 544; Nilabati Behera v.
State of Orissa (1993) 2 SCC 746 : [1993) 2 SCR 581;
Kewal Pati v. State of Bihar (1995) 3 SCC 600 : [1995]
3 SCR 207; D.K.Basu v'. State of West Benga (1997) 1
sec 416 : [1996) 10 Suppl. SCR 284 - relied on.
Nina Rajan Pillai & Ors. v. Union of India 180 (2011)
DLT 104; Kewalbai v: The State of Maharashtra. 2013-
(3) Botn CR (Cri) 601; Bheduki Buragohain v. State
of Assam. 2013 (2) GLT 370; Madhuben Adesara v.
State of Gujarat (Decision of Gujarat High Court in R/
SCR.A./536/2010 (unreported)); Banalata Dash v.
State of Orissa & Ors. AIR 2012 Ori 97; Amandeep v.
F
G
H
526
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 14 S.C.R.
State of Punjab &Am: (2013) 169PLR191; Tmt. Rohini
Lingam v. State (2008) 5 MLJ 822; Salm & Am: v. State
of Kera/a & Ors. (Decision of Kerala High Court in
CRP No. 1170/2015); Ravindra Nath Awasthi v. State
of' UP 2009 2 AWC 2090 (All); Mst. Madina v. State
of' Rajasthan & Ors. 2000 Cri LJ 4484; Dukhuram v.
State of Chhattisgarh & Ors. 2011 (3) MPHT 81;
Sa11tosh Kumari v. State of H.P & Ors. 2008 ACJ 1684;
State ofJammu & Kashmir v. Sajad Ahmad Dar
(Decision of J&K High Court in LPAHC No. 36/
2015); Mrs. Meena Singh v. State of Bihar 2001 Cri
LJ 3573; Lawyers for Justice (Non-Government
Organization) v. State of M.P AIR 2015 MP 212approved.
Ajab Singh v. State of UP (2000) 3 SCC 521; Murti
Devi v. State of Delhi (1998) 9 SCC 604; Rohtash Kumar
v. State of Ha1yana (2013) 14 SCC 290 - referred to.
Case Law Reference
[19831 3 SCR 508
relied on
Para 41
[19~4] 3 SCR 544
relied on
Para 42
(1993] 2 SCR 581
relied on
Para 43
[1995) 3 SCR 207
relied on
Para 44
f 1996) 10 Suppl. SCR 284
relied on
Para· 45
(2000) 3 sec 521
referred to
Para 46
(1998) 9 sec 604
referred to
Para 46
(2013) 14 sec 290
referred to
Para 46
180 (2011) DLT l04
approved
Para 47
2013 (3) Born CR (Cri) 601
approved
Para 47
2013 (2) GLT 370
approved
Para 47
AIR 2012 Ori 97
approved
Para 47
(2013) 169 PLR 191
approved
Para 47
(2008) 5 MLJ 822
approved
Para 47
2009 2 AWC 2090 (All)
approved
Para 47
2000 Cri LJ 4484
approved
Para 47
2011 (3) MPHT 81
approved
Para 47
RE- INHlJMAN CONDITIONS IN 1382 PRISONS
2008 AC.l 1684
approved
Para 47
2001 Cri LJ 3573
approved
Para 47
AIR 2015 MP 212
approved
Para 47
CIVIL ORIGINAL HJRISDICTION: Writ Petition (Civil) No.
406of2013.
lJnder Article 32 of the Constitution oflndia.
WITH
I. A. No. 68248 of 2017.
Gaurav Agrawal, Adv. (AC).
527
A
B
K.K. Vcnugopal, AG, C. D. Singh, D.K. Thakur, D. K. Singh, c
AAGs, Colin Gonsalves, Sr. Adv., R.M .. Bajaj, Ms. Binu Tamta,
Ms. Sushma Suri, B.K. Prasad, Ms. Sushma Manchanda, M.K. Maroria,
Guntur Prabhakai~ Ms. Prerna Singh, Shuvodecp Roy, SayoojMohandas
M., M. Shocb Alam, Ms. Fauzia Shakil, Ujjwal ·Singh, Mojahid Karim
Khan. Apoorv Kurup, Ms. Sakshi Kakkar, AC Box\ Patro, Anshuman
Srivastava, Apoorva Bhumesh, Ms .. Hemantika Wahi, Ms. Jcsal Wahi,
D
Ms. Puja Singh, Ms. Mamta Singh, Ms. Seema Shanna, Varindcr Kumar
Shanna, Shariq Ahmed, 13.K. Satija, Tapcsh Kumar Singh, Mohd.
Waquas, Aditya Pratap Singh, V. N. Raghupathy, Lagnesh Mishra,
Parikshit P. Angadi, Mishra Saurabh, Ankit Kr. Lal, Ms. Yanshaja Shukla,
Maha ling Pandarge, N ishant R. Katneshwarkar, Sapam Biswajit Meitei,
E
Ashok Kumar Singh, Ranjan Mukherjee, T. G. Narayanan Nair,
Mrs. K. Enatoli Serna, Edward Belho, Amit Kumar Singh, K. Luikang
Michael, Z. H. Isaac Haiding, Ms. Anindita Pujari. Ashok Panigrahi,
Ms. Uttara Babbar, Ms. Akanksha Choudhary, S. S. Shamshery, Amit
Sharma, Ankit .Raj, Ms. Ruchi Kohli, Ms. Aruna Mathur, Avnccsh
Arputham, Ms. AnuradhaArputhmn, Amit Arora, Ms. Simran Jeet (for
F
M/s Arputham Aruna & Co.), Gopal Singh, Rituraj Biswas, M. Yogesh
Kanna, Ms. Mahalakshmi, Ms. SujathaBagadhi, S. Udaya Kumar Sagar,
Mrityunjai Singh. Adarsh Kumar Upadhyay, Saurabh Agrawal.
Ms.Komal Mundhra, Ms. Rachana Srivastava, Ms. Monika, Sukrit R.
Kapoor, Raja Chatterjee, Ms. Runa Bhuyan, Chanchal Kr. Ganguly,
G .
K.Y. Jagdishvaran;· Mrs. G. Indira~ M.S.Doabia, S.S. Rawat,
Y.G. Pragasam, Prabu Ramasubramanian, Manu Sundaram, T.N. Rartla
Rao, Hitesh Kumar Sharma, Ms. T. Ycera Reddy, D. Mahesh Babu,
Ms. Ritu Kumar,· Satya Mitra, Kamal Mohan Gupta, Advs. for the
Respondents.
H·
528
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B
c
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F
G
SUPREME COURT REPORTS
[2017] 14 S.C.R.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. Custodial violence has always been
a matter of great concern for all civilized societies. Custodial violence
could take the form of third degree methods to extract information-the
method used need not result in any physical violence but could be in the
form of psychological violence. Custodial violence could also include a
violation of bodily integrity through sexual violence-it could be to satisfy
the lust ofa person in authority or for some other reason. The 'Mathura
Rape Case' is one such incident that most arc familiar with. Custodial
violence could, sometimes, lead to the death of its victim who is in a
terribly disadvantaged and vulnerable condition. All these fonns of
custodial violence make it abhorrent and invite disparagement from all
sections of civilized society.
2. Like most societies, we are not strangers to custodial violence
and unnatural deaths but our vibrant democracy nermits us to debate
and discuss these issues with rational arguments. However, right sounding
noises critical of custodial violence (in any form) cannot achieve any .
useful purpose unless persons in authority hear the voices of the victims
or the silence of the dead and act on them by taking remedial steps.
There must be a greater degree of sensitivity among those in authority
with regard to persons in custody and it has been the endeavour of the
constitutional courts in our country, over ~everal decades, to consistently
flag this issue. The results have been somewhat mixed but the effort will
continue as :ong as Article 21 remains in our Constitution. This message
goes out loud and clear, as also the message that the dignity of the
individual is not a plaything for those in authority.
3. Chief Justice R. C. Lahoti highlighted one aspect of custodial
deaths, namely, unnatural deaths in prisons. This was through a letter
addressed to this Court which has been treated as a public interest
litigation. We have been very ably assisted in understanding the concern
raised and in appreciating different perspectives on the issue by the
learned Amicus Curiae Mr. Gaurav Agrawal who has spent considerable
time and effort in placing all relevant material before us and for this he
deserves our gratitude.
4. In our judgment andorderofS1h February, 20161 we had drawn
attention to four issues regarding prisons raised in the letter addressed
H
1 Re-Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700
RE- INHUMAN CONDITIONS IN 1382 PRISONS
529
[MADAN B. LOKUR, J.]
by former Chief Justice Lahoti. The four issues are: (i) Overcrowding in
A
.. , prisons; (ii) Unnatural death of prisoners; (iii) Gross inadequacy of staff,
and (iv) Available staff being untrained or inadequately trained
5. In the order of 5'
11 February, 2016 we had dealt with the issue
of overcrowding in prisons and had issued certain directions. In the
present decision, we consider unnatural deaths in prisons. On this issue
B
of unnatural deaihs in prisons, the only reliable information available is
from the National Crime Records Bureau or the NCRB. The website of
the NCRB2 indicates that deaths in judicial custody, both natural and
unnatural. are as under:
·
I
Year
Natural deaths
Unnatural deaths
c
i
20l2
1345
126
I
2013
1482
ll5
I
2014
1507
195
I
2015
1469
115
6. The distinction made by the NCRB between natural and
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unnatural deaths is unclear. For example, if a prisoner dies due to a lack
of proper medical attention or timely medical attention, would that be
classified as a. natural death or an unnatural death? This needs to be
explained as submitted by the learned Amicus.
7. Be that as it may, the break-up of unnatural deaths given by
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the NCRB on its website is as under:
Year
Suicide Murder
Death
Assault by
Negligence
Others
by
due to
outside
by jail
inmates
firing
clements
staff
2012
87
4
10
4
0
22
F
2013
70
8
J
12
0
23
2014
94
12
2
4
J
82
2015
77
11
0
7
0
19
8. Again, there is a lack of clarity in the classification ofunnatural
deaths in the category of' others'. What does this category encompass?
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We have not been provided any infonnation in this regard by the Union
of India and it is submitted by the learned Amicus, that the NCRB should
be directed to explain the difference not only between a natural death
and an unnatural death but also to clarify the sub-categorization of 'others'
unnatural deaths.
1 ncrb.gov. in
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9. On the issue ofdefining natural and unnatural deaths, the
learned Amicus drew our attention to the Guidelines on Investigating
Deaths in Custody issued by the International Committee of the Red
Cross (ICRC). According to the ICRC, 'death' is the irreversible cessation
of all vital functions, including brain activity. Death is 'natural' when it is
caused solely by disease and/or the aging process. It is 'unnatural' when
its causes are external, such as intentional injury (homicide, suicide),
negligence or unintentional inju1y (death by accident). We have perused
the guidelines provided by the ICRC and are of the view that these
guidelines deserve consideration and circulation by the Central
Government and all the State Governments.
NHRC and suicide prevention
l 0. It has been pointed out by the learned A micus that a
disproportionately large number of unnatural deaths are attributable to
suicides. In this regard, it has been brought to our notice by the learned
Amie us that in relation to suicides in prisons, the National Human Rights
D Commission or the NHRC has published a monograph sometime in
December 2014 entitled "Suicide in Prison - prevention strategy and
implication from human rights and legal points of view". This monograph
records that during the period 2007-2011, deaths in prisons on account
of suicide formed 71 % of the total P.'.1mber of unnatural deaths. It was
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a]so pointed out that the average suicide rate amorig ~he general public
for this period is 11 (per 100,000) whereas the average suicide rate in
prison is 16.9 (per 100,000). In other words, the average suicide rate in
prisons is over 50% more than in normal conditions. The monograph
refers to certain c01mnunications issued by the NHRC from time to time
on the aspect of custodial deaths, but we will refer to them in somewhat
greater detail a little later.
11. The study conducted by the NHRC as reflected in the
monograph suggests that there are two primary causes for all jail suicides -
the first is the environment in the jail, which is apparently 'conducive' to
suicidal behaviour, and the second is the crisis situation faced by an
inmate.
12. Detailing the characteristics of a prison environment that make
suicides in prisons more likely, the NHRC monograph mentions the
following:
·
1. Authoritarian environment.
RE- INHUMAN CONDITIONS IN 1382 PRISONS
[MADAN B. LOKUR, .l.]
2. No apparent control over the future.
3. Isolation from family, friends and community.
4. The shame of incarceration.
5. Dehumanizing aspects of incarceration.
6. Fears.
7. Staff insensitivity to the arrest and incarceration
phenomenon
8. Hostility and bullying by other inmates.
9. Lack of adequate medical and psychological counseling and
treatment facility
IO.Delay in deciding the parole.
Similarly, the characteristics of a crisis situation are mentioned and they
are as follows:
1. Recent excessive drinking and/or use of drugs.
2. Recent loss of stabilizing resources.
3. Severe 'guilt or shame over the offence.
4. Same-sex rape.
5. Current mental illness.
6. Poor health or terminal illness.
7. Approaching an emotional breaking point.
13. The NHRC has suggested various protective factors or
measures that could be employed to reduce the number of suicides in
prisons. Among them arc visits and contact that the prisoner could have
with the family, constructive occupation in prison, instilling hopes and
plans for the future and support from staff.
14. The NHRC also conducted a National Seminar on Prison
·Reforms on l S'h April, 2011. The recommendations made in the National
Seminar have also been indicated in the monograph as also some
actionable points for suicide prevention programmes. In its conclusion,
the NHRC has recorded that the success of efforts to prevent suicides
in prisons depends on the ability and willingness to identify the vulnernbility
of each prisoner, provide necessary supervision and support and offer
·alternative ways of coping and reducing emotional distress. It is noted
that any proposed piecemeal solution to the problem of suicides in prisons
will not result in any long-term improvement.
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15. \\'hat we have mentioned above is only a brief indication of
the extent to which the NHRC has put in an effort to bring about a
composite monograph and a detailed study on suicides in prisons. In our
view, this would certainly be useful to prison officials and staff in reducing,
if not eliminating suicides in prisons. The monograph prepared by the
NHRC, in our opinion, deserves to be freely distributed amongst the
staff and prisons all over the country since it is a document of immense
utility insofar as suicide prevention in prisons is concerned.
Relevant communications issued by the NHRC
16. Apart from the above efforts of the NHRC, our attention has
been drawn by the learned Amicus to various communications sent by
the NHRC to the Chief Secretaries of all the States and the Union
Territories. The first such communication is dated 14'" December, 1993
on the subject of reporting of custodial deaths/rapes within 24 hours. A
request was made in the communication that District Magistrates and
Superintendents of Police may be given suitable instructions to report to
the Secretary General of the NHRC any custodial death or custodial
rape within 24 hours of occurrence or of these officers coming to know
of such an incident.
J 7. Another communication dated 21 "'June, 1995 was sent by the
NHRC to all the Chief Secretaries of States and the Union Territories
clarifying that not only deaths in police custody but also deaths in judicial
custody ought to be reported. This clarified the communication of l 4'h
December, 1993 which was perhaps misunderstood by the Chief
Secretaries and their subordinates to mean that the intention of the NHRC
was to obtain infonnation only with regard to deaths in police custody
and not deaths in judicial custody.
18. On 1 O'h August, 1995 the NHRC addressed a communication
to the Chief Ministers of all the States on the necessity of video-recording
of post-mo1tem examinations in cases of custodial deaths. The reason
behind this communication was that a post-mortem report is a very
valuable record and has considerable importance in assisting in drawing
conclusions on the cause of death of a person, particularly in a police
lock-up or in a jail. The NHRC noted that though the process ofvideorccording of the post-mortem examination would involve extra cost,
human life is more valuable than the cost of video-recording and in any
case, occasions necessitating video-recording should ideally be very
limited.
RE- INHUMAN CONDITIONS IN 1382 PRISONS
[MADAN B. LOKUR, J.J.
19. The NHRC addressed a communication on 27'h March, 1997
to the Chief Ministers/ Administrators of all the States/Union Territories
requesting adoption of the Model Autopsy Fonn and the additional
procedure for inquest. The Model Autopsy Form was prepared after
ascertaining the views of the States and discussing with experts in the
field the necessity of having such a document. The Fonn was modeled
on the United Nations Model Autopsy Protocol but was not adopted as
it is. Some incidental improvements were made, particularly with regard
to the conduct of inquests. The communication enclosed therewith the
Model Autopsy Form and the additional procedure for inquest as
annexures to the said letter.
20. The NHRC sent a communication dated 3ra January, 2001 to
all the Home Secretaries regarding the revised instructions to be followed
while sending post-mortem reports in cases of custodial death. In order
to streamline the procedure, the NHRC issued certain instructions and
among them were the following:
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1.
The post-mortem report along with the videograph and the D
magisterial enqui1y report must be sent to the NHRC within two
months of the incident.
2.
The post-mortem rep011 should be sent in the profonna attached
to the letter dated 27'" March, 1997.
3.
The magisterial enquiry into a custodial death should be completed
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as soon as possible but within a period of two months.
4.
In some cases of custodial death, the viscera are sent for
examination after the post-mortem examination and a report is
called for. Since this may take some time, it was instructed that
the post-mortem report and other documents should be sent to
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the NHRC without waiting for the viscera repo11, which could
be sent later on.
21. On 21" December, 200 I the NHRC addressed a
communication to all Chi cf Ministers and Administrators of all the States
and Union Territories giving modified instructions regarding videography
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of post-mortem examinations in respect of deaths in judicial custody. It.
was clarified that the requirement of videographing of post-mortem
examinations in respect of deaths in jail would be applicable only where
the preliminaiy inquest by the Magistrate had raised suspicion of foul
play or where any complaint alleging foul play was made to the concerned
authorities or there was any other reas011 to suspect foul play.
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22. It is clear from the above that the role of the NHRC is
extremely important whenever there is an unnatural death in a prison.
Although the NHRC bas issued detailed instructions from time to time, it
docs appear however that these instructions are not being taken seriously
but arc being foll owed more in the breach.
Nelson Ma~dela Rules
23. The learned Amicus submitted that the General Assembly of
the United Nations adopted the Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules) adopted on l 71h
December, 2015. These Rules provide useful internationally accepted
guidelines for implementation by prison administrations across the country.
He drew our particular attention to Rules 58 to 63 which deal with
prisoner contact with the outside world. It was submitted that merely
because a person is in prison, it docs not mean that he or she should be
cut off from the outside world. In fact, the prisoner should be allowed to
communicate with his family and friends at regular intervals and should
also be permitted to communicate and consult with a legal adviser of his
or her choice. This by itself could have a soothing effect on the prisoner.
He submitted that prisoners should be informed of important items of
news through newspapers. periodicals or special institutional publications
so that contact with the outside world is maintained. This. according to
the learned Amie us, would substantially reduce the feeling of isolation
that a prisoner has and would have an impact on his or her mental stability
thereby reducing the possibility of any hannfu 1 activity by the prisoner.
24. On the specific issue of custodial deaths, the learned Amicus
drew our attention to Rule 71. of the Nelson Mandela Rules to submit
that any custodial death, disappearance or serious injury shall be reported
without delay to a judicialm other competent auth01ity that is independent
of the prison administration. The learned Amicus also pointed out that
the Mandela Rules require the prison administration to treat the body of
a deceased prisoner with respect and dignity.
Model Prison Manual
25. The learned Attorney General responded to the submissions
of the Amicus by making a preliminary submission before adverting to
the issue ofunnatural deaths in prisons. He submitted that the subject of
prisons was a State subject in Entry 4 of List II of the Seventh Schedule
to the Constitution and as such the Central Government could not legislate
on the subject or pass any binding directions but could only issue
;
RE- INHUMAN CONDITIONS IN 1382 PRISONS
[MADAN B. LOKUR, J.]
535
advisories to the State Governments. Really therefore, the burden of A
improving prison conditions was on the State Governments but the Central
Government would be more than willing to render assistance to this
Court and to the States in improving prison .conditions, within constitutional
limits. With this caveat, the learned Attorney General adverted primarily
to the Model Prison Manual 2016 issued by the Government of India
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through the Ministry of Home Affairs.
26. It was submitted that Chapter VII of the Manual and
lartieularly paragraph 7.95. r thereof, provides that in the event of a
custodial death, the procedure laid down in the Code of Criminal
Procedure, 1973 and the guidelines issued by the NHRC should be
followed. On this basis, it was submitted that the guidelines issued by the
NHRC are treated more or less as binding and are scrupulously followed.
c
27. Reference was also made to Chapter XIII of the Manual and
the section therein on 'Accidents and. Suicides'. Particular reference
was made to paragraph 13.38 which is to the effect that when a sudden
or violent death or suicide takes place in a prison, immediate notice shall
D
be sent to the concerned Superintendent and the Medical Officer.
Paragraph Jl3 .41 relates to custody of articles that could be used to
commit suicide such as knives and tools used in workshcds and barber's
or tailor's equipment as well as ropes for wells. It is provided that care
should be taken that no such object is left about in the prison that may be
used for committing suicide. In fact in paragraph 13.42 it is stated that
prisoners with apparently suicidal tendencies should be carefully watched
and not left alone in a cell. Such prisoners should also be referred to
counselors and psychiatrists and should be supervised closely. Chapter
XIII of the Manual also provides that reasonable caution should be taken
to guard against accidents when convicts are employed on dangerous
work such as blasting, excavation or other works of a dangerous
_character. It is also provided in paragraph 13.44 that poisonous drugs,
surgical instruments and other similar items should not be left within the
reach of prisoners.
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28. The said Chapter XIII of the Manual contains a section devoted
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to the issue of prevention of fires and yet another section is devoted to
epidemics and precautions to be taken when an epidemic occurs such
as cholera, cnteric fevers, gastroenteritis etc. It is provided that infected
prisoners should be segregated and kept under medical observation and
appropriately treated. Paragraph 13.62 provides that whenever an
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epidemic occurs, the Medical Officer shall at once arrange for vaccination
or inoculation as the case may be of all prisoners, prison personnel and
members of their families. Paragraph 13.63 provides that overcrowding
must be strictly avoided both in the hospital as well as in every cell and
ward. This Chapter also contains a section devoted to hunger strikes
and the procedure to be followed in cases of hunger strikes and forcible
feeding of prisoners on a hunger strike.
29. The learned Attorney General brought to our notice that NGOs
also have a role to play in rehabilitation programmes of prisoners as mentioned
in Chapter XXll of the Manual. He also submitted that legal aid is provided
to prisoners and in fact Chapter XVI of the Manual is devoted entirely
to legal aid and the right of a prisoner to free legal representation or legal
aid. There is also a reference in the Manual to the Under Trial Review
Committee adverted to in our order dated 5'h February, 2016.
30. The learned Attorney General submitted that there exists a
grievance rcdrcssal system as mentioned in Chapter XXI of the Manual.
Consequently, if any prisoner has any grievance, he or she can bring it to
the notice of the authorities through a complaint box installed in the prison
at an easily accessible place. In this context, he drew our attention to
the' Perspective' section of the Manual containing a section on the rights
and duties ofprisoners which includes the right to human dignity, the
right to basic minimum needs, the right to communication, the right to
access to law, the right against arbitrary prison punishment, the right to
meaningful and gainful employment and finally the right to be released
on the due date.