# • SUNIL BATRA ETC v. DELW ADMINISTRATION AND ORS. ETC

- **Citation:** [1979] 1 S.C.R. 392
- **Court:** Supreme Court of India
- **Decided:** 1978-08-30
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer, S. Murtaza Fazal -~, c-.~--ALI, P; N. Sll!NGHAL, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunil-batra-etc-v-delw-administration-and-ors-etc-7587
- **Pages:** 120

## Headnote

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-- Prisons Act 1894--Seclion 30-Scope ·of-Solitary confinement-Imposition
of bar-fett"ers ulider s. 56 on a prisoner-Whether violates Artic(es .. 14,_ 19, 21
of _the Constitution 1950.- :-~ -
Practice and Procedure-ll/ecessity of social welfare organisation to inten·ene
in the litigative procesJ .
. -.
P~iso~ Act 1894.~nd Punjab Jail Manual-Need for revision to re-fleet the
deeper rneaning in the behavioural norms, correctional a!ti:ude1 and hunrane
Orientdtion for the prison staff and prisoners alike.
-- ·-- --=::-
Words & Phrases-~Under sentence of Death'. and
~apart /rOm all other
prisonerJ'-Meaning of.
. Section 30(2) _of the Prisozis Act provides that every priSoner under sentence
of death shall be confined in 3: cell aPart from all other prisoners and shall · be
placed by day and by night under the charge of a giiard.
The petitioner in W.P. No. 2202 of 1977 who was a convict under sentence
of death challenged his solitary confinement. 1It was contended on his behalf
that s. 30(2) does not authorise placing a prisoner under sentence of death
in solitary confinement and that the jail authority could not arrogate to itself
the power to impose such punishment under the garb of giving effect to s. 30(2).
On the other hand it was contended on behalf of the State that the section merely
permits statutory segregation for safety of the prisoner in the prisoner's own
interest and that instead of striking down the provision, the Court should adopt
a course of so reading down the section as to denude it of its ugly inhuman
features.
The petitioner in W.P. 565 of 1977 contended· that s. 56 of the Prisons Act
which confers unguided, uncanalised, and arbitrary powers on the Superintendent
.to confine !J. prisoner in. irons is ultra vires Arts. 14 and 21 of the Constitution.
Dis~ing the petitions.
HEID~; -(~ Chandrachud CJ. Fazal Ali, Shinghal and Desai, JJ.).
1. Section 30(2) does not empower the prison authority to impose solitary
confinement upon a prisoner under sentence of death.
Even jail
discipline
inhibits solitary confinement as a measure of jail punishment. [499H] '
2. It ha'; been well established that convicts are not by mere reason of the
conviction denuded of all the fundamental rights which they otherwise possess.
For example a man of profession who is convicted would stand stripped of his
right to hold consultations while serving out his sentence; but the Constinition
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
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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.)
393
a convict is entitled to the precious right guaranteed by Art. 21 that he shall
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not be deprived of his life or personal liberty except according to the procedure
established by law.
[4950-H]
Procunier v. Martiney 40 L. Ed. 2d. 224 at 248; Wolff v. Mcdonnel 41 L.
Ed 409 at 501; D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh & Ors.
[1975] 2 SCR 24 referred to.
3. Sections 73 and 74 of the Indian Penal Code leave no room for doubt
that solitary confinement is by itself a substantive punishment which can be
imposed by a court of law. It cannot be left to the whim and caprice of prison
authorities.
The limit of solitary confinement that can be imposed under
Court's order is strictly JJrescribed by the Penal Code, [498 B-C]
4. Solitary confinement is so revolting to the modern sociologist and law
reformer that the Law Commission recommended that the punishment of solitary
confinement is out of tune with modern thinking and should not find a place in
the Penal Code as a punishment to be ordered by any criminal court even
though it may be necessary as a measure of jail discipline. [498 F-G]
5. The explanation to s.44(8) of the Prisons Act makes it clear that a
person is not wholly segregated from other prisoners in that he is not removed
from the sight of other prisoners and he is entitled to have his meals in associatio

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SUNIL BATRA ETC .. ,
v.
DELW ADMINISTRATION AND ORS. ETC.
August 30, 1978
[Y. V. CHANDRACHUD, C.J:, V. R. KRISHNA IYER, S. MURTAZA FAZAL
-~, :'c-.~--ALI, P; N. Sll!NGHAL AND D. A. DESAI, JJ.]
~
\ .' .
.
' .
-- Prisons Act 1894--Seclion 30-Scope ·of-Solitary confinement-Imposition
of bar-fett"ers ulider s. 56 on a prisoner-Whether violates Artic(es .. 14,_ 19, 21
of _the Constitution 1950.- :-~ -
Practice and Procedure-ll/ecessity of social welfare organisation to inten·ene
in the litigative procesJ .
. -.
P~iso~ Act 1894.~nd Punjab Jail Manual-Need for revision to re-fleet the
deeper rneaning in the behavioural norms, correctional a!ti:ude1 and hunrane
Orientdtion for the prison staff and prisoners alike.
-- ·-- --=::-
Words & Phrases-~Under sentence of Death'. and
~apart /rOm all other
prisonerJ'-Meaning of.
. Section 30(2) _of the Prisozis Act provides that every priSoner under sentence
of death shall be confined in 3: cell aPart from all other prisoners and shall · be
placed by day and by night under the charge of a giiard.
The petitioner in W.P. No. 2202 of 1977 who was a convict under sentence
of death challenged his solitary confinement. 1It was contended on his behalf
that s. 30(2) does not authorise placing a prisoner under sentence of death
in solitary confinement and that the jail authority could not arrogate to itself
the power to impose such punishment under the garb of giving effect to s. 30(2).
On the other hand it was contended on behalf of the State that the section merely
permits statutory segregation for safety of the prisoner in the prisoner's own
interest and that instead of striking down the provision, the Court should adopt
a course of so reading down the section as to denude it of its ugly inhuman
features.
The petitioner in W.P. 565 of 1977 contended· that s. 56 of the Prisons Act
which confers unguided, uncanalised, and arbitrary powers on the Superintendent
.to confine !J. prisoner in. irons is ultra vires Arts. 14 and 21 of the Constitution.
Dis~ing the petitions.
HEID~; -(~ Chandrachud CJ. Fazal Ali, Shinghal and Desai, JJ.).
1. Section 30(2) does not empower the prison authority to impose solitary
confinement upon a prisoner under sentence of death.
Even jail
discipline
inhibits solitary confinement as a measure of jail punishment. [499H] '
2. It ha'; been well established that convicts are not by mere reason of the
conviction denuded of all the fundamental rights which they otherwise possess.
For example a man of profession who is convicted would stand stripped of his
right to hold consultations while serving out his sentence; but the Constinition
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
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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.)
393
a convict is entitled to the precious right guaranteed by Art. 21 that he shall
A
not be deprived of his life or personal liberty except according to the procedure
established by law.
[4950-H]
Procunier v. Martiney 40 L. Ed. 2d. 224 at 248; Wolff v. Mcdonnel 41 L.
Ed 409 at 501; D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh & Ors.
[1975] 2 SCR 24 referred to.
3. Sections 73 and 74 of the Indian Penal Code leave no room for doubt
that solitary confinement is by itself a substantive punishment which can be
imposed by a court of law. It cannot be left to the whim and caprice of prison
authorities.
The limit of solitary confinement that can be imposed under
Court's order is strictly JJrescribed by the Penal Code, [498 B-C]
4. Solitary confinement is so revolting to the modern sociologist and law
reformer that the Law Commission recommended that the punishment of solitary
confinement is out of tune with modern thinking and should not find a place in
the Penal Code as a punishment to be ordered by any criminal court even
though it may be necessary as a measure of jail discipline. [498 F-G]
5. The explanation to s.44(8) of the Prisons Act makes it clear that a
person is not wholly segregated from other prisoners in that he is not removed
from the sight of other prisoners and he is entitled to have his meals in association with one or more other prisoners. Even such separate confinement cannot
exceed three months, Para 847 of the Punjab Jail Manual, if literally enforced
would keep a prisoner totally out of bounds, that is, beyond sight and sound.
Neither 5eparate confinement nor cellular confinement of a condemned prisoner
would be as tortuous or horrendous as solitary confinement of a condemned
prisoner. Section 30(2) merely provides for confinement of a prisoner under
sentence of death in a cell apart from other prisoners. Such confinement can
neither be cellular confinement nor separate confinement and in any event it
<:annot be solitary confinement. [499E-H]
6. A "prisoner under sentence of death" in the context of s. 30(2) can only
mean a prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or avoided by any judicial or constitutional
procedure. Till then a person who is awarded capital punishment cannot be
said to be a prisoner under sentence of death. There is an inordinate time Jag
between the sentence of death passed by the Sessions Judge and the final disposal
of appeal by the High Court or Supreme Court depending on the circumstances
of each case or the rejection of an application for mercy by the President or the
Governor. It cannot be said that under s. 30(2) such prisoner, from the time
the death sentence is awarded by the Sessions Judge has to be confined to a cell
apart from other prisoners. [5~1F, 502C, 501C, 501£]
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7. Jail custody is something different from custody of a convict suffering
simple or rigorous imprisonment.
The purpose behind enacting s. 366 (2) of
the Code of Criminal Procedure is to make the prisoner available when the
sentence is required to be executed.
Unless special circumstances exist, even
in cases where a person is kept in a cell apart from other prisoners with day and
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night watch, he must be within the sight and sound of other prisoners and be
able to take food in their company, [502 E-G]
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SUPREME COURT REPORTS
[1979] 1 S.C.R.
8. Section 30(2) as interpreted is not violative of Art. 20. When a prisoner
is committed under a warrant for jail custody under s. 366(2), Cr. P.C. and if
he is detained in solitary confinement which is a
punishment prescribed by
s. 73, I.P.C. it will amount to imposing punishment for the same offence more
than once, which would be violative of Art.
20(2).
But as the prisoner is
not to be kept in solitary confinement and the custody in vihich he is kept under
s. 30(2) would preclude detention in solitary confinement, there is no chance of
imposing a second punishment upon him and, therefore, s. 30(2) is not violative
of Art. 20. [502H; 503 A-Bl
9. Personal liberty of the person who is incarcerated is to a great extent
curtailed by punitive detention. It is even curtailed in preventive detention. The
liberty to move, mix, mingle, talk, share company with co-prisoners, if substantially curtailed, would be violative of Art. 21 unless the curtailment has the backing of law. Section 30(2) establishes the procedure by which it can be curtailed
but it must be read subject to the interpretation placed in this judgment. Once
s. 30(2) is read down, its obnoxious element is erased and it cannot be said
that it is arbitrary or that there is deprivation of personal liberty without the
authority of law.
[504E-F]
10. Classification according to sentence for security purposes is valid and
therefore s. 30(2) does not violate Art. 14. The restriction imposed by s. 30(2)
is not unreasonable. It is imposed keeping in vie¥.r the safety of the prisoner
and the prison security and does not violate Art. 19.
[505F]
11. There is no warrant for an implicit belief that every prisoner under
sentence of death is necessarily violent or dangerous requiring his segregation.
The rationale underlying s. 30(2) is that the very nature of the position and
predicament of a prisoner under sentence of death leads to a certain situation
and present problems peculiar to such persons and warrant their separate classification and treatment as a measure of jail administratiori and prison discipline.
It can hardly be questioned that prisoners under sentence of death form a
separate class and their sepf!,rate classification has to be recognised. [505 A-C]
12. Section 30(2) as interpreted does not mean that the prisoner is to be
completely segregated except in extreme cases of necessity which must be specifically made out and th.nt too after he becomes a prisoner under sentence of
death.
[505F]
13. Section 56 is not violative of Arts. 14 and 21.
[51 IC]
The power under s. 56 can be exercised only for reasons and considerations
which are germane to the objective of the statute, viz.; safe custody of the
prisoner, which takes in considerations regarding the character and propensities
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of the prisoner. These and similar considerations bear direct nexus with the
safe custody of prisoners as they are aimed primarily at preventing their escape.
The determination of the necessity to put a prisoner in bar fetters has to be made
after application of mind to the peculiar and special characteristics of each
individual prisoner. The nan.ire and length of sentence or the magnitude of the
crime committed by the prisoner are not relevant for the purpose of determining
that question.
[509A-C]
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14. ·There are sufficient guidelines in s. 56. It contains a number of safeguards against misuse of bar fetters by the Superintendent. Such circumscribed
peripheral discretion with-duty to give reasons which are revisable by the higher
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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.)
395
authority cannot be described as arbitrary so as to be violative of Art. 14. The
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Superintendent can put the prisoner in bar fetters only after taking into consideration the peculiar and special characteristics of each individual
prisoner.
No ordinary routine reasons can be sufficient.
Duty to record reasons in the
Superintendent's Journal as well as the prisoner's history ticket will narrow the
discretionary power conferred on him.
The reasons must be recorded in the
language intelligible and understandable by the prisoner.
A further obligation
is that the fetters imposed for the security, shall be removed by the SuperintenB
dent as soon as he is of opinion that this can be done with safety. The Superintendent wi11 have to review the case at regular and frequent inteivals for ascertaining whether the fetters can be removed.
[510-A-B, 509E-H]
15. Moreover, the section does not permit the use of bar fetters for an unusually long period, day and night, and that too when the prisoner is confined
in ti! secure cell fron1 where escape is somewhat inconceivable.
[511B]
Per Krishna Iyer, J. concurring
I. The vires of section 30 and section 56 of the Prisons Act upheld. These
and othet provisions, being somewhat out of tune with current
penelogical
vallies, to be revised by fresh legislation.
Prison Manuals are mostly callous
colonial compilations and even their copies are mostly beyond the prisoner's
~en.
Punishments, in civilized societies, must not degrade human dignity or
\_i.·C1und fltsh and spirit.
The cardinal sentencing goal is correctional, changing
the consciousness of the criminal to ensure social defence. Where prison treatment abandons the reformatory purpose and practises dehumanizing techniques
it is wasteful, counter-productive and irrational hovering on the hostile brink of
unr<tlllonableness (Article 19). (4888-C]
t..-..(2) Solitary confinement, even if mollified and modified marginally, is not
~knCtiOned by s. 30 for prisOners 'under sentence of death'. But it is legal under
that ff(.ti(.'111 to separate such sentences from the rest of the prison community
during hours when prisoners are generally locked in.
The special watch, day
and night. of such sentencees by guards upheld. Infraction of privacy may be
inevitable. but guards must concede minimun1 human privacy
in
practice.
f488E]
. (3) Prisoners 'under ·sentence of death' shall not be denied any of the commuflity amenities, including games, newspapers, books, moving around
and
meeting prisoners and visitors, subject to reasonable
regulation
of
prison
management.
Section 30 is no substitute for sentence of imprisonment
and
merely prescribes the manner of organizing safe jail custody authorised
by
s. 366. Cr. P. C. [488F]
(4) If the prisoner desires loneliness for reflection and remorse, for prayers
ahd making peace with his maker, or
opportunities for meeting family or
friends. such facilities shall be liberally granted, having regard to the stressfull
spell of terrestial farewell his soul may be passing through, the . compassion
society owes to him whose life it takes.
[488HJ
(5) The crucial holding under s.
30(2) is that a person is
not
'under
sentence of death', even if the sessions Court has sen~nced. him to death subject
to confirmation by the High Court.
He is not 'under sentence of death' even
if the High Court imposes, by confirmation or fresh. appellate infliction, death
penalty, so long as an appeal to the Supreme Court is likely to be 9r has been
moved or is pending.
Even if -thi_s Court ·has· awarcfed capital ~ep.tence, s. 30
9--526SC1178
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396
SUPREME COURT REPORTS
(1979) ] S.C.R.
does not cover him so long as his petition for mercy to the Governor and/or
to the President permitted by the Constitution, Code and Prison Rules, has not
been disposed of.
Of course, once rejected by the Governor or the President,
and on further application there is no stay of execution by the authorities, he
is 'under sentence of death', even if he goes on making further mercy petitions.
During that interregnum he attracts the custodial segregation specified ins. 30(2).
To be 'under sentence of death' means 'to be under a finally executable death
sentence'.
[488H, 489A-C]
(6) Further restraint on such a condemned prisoner is not ruled out, if
c1ear and present danger of violence or likely violation of custody is, for good
reasons, made out, with due regard to the rules of fair play implied in natural
justice.
Minimal hearing shall be accorded to the affected prisoner if he is
subjected to further severity.
[489D]
(7) On the necessity for prison reform and revision of Jail Manuals held:-
(a) Section 56 must be tamed and trimmed by the rule of law 8nd shall
not turn dangerous by making prison 'brass' an imperium in imperio.
The superintendent's
power shall be
pruned and his
discretion,
bridled for the purpose. [489 El
(b) Under-trials shall be deemed to be in custody, but not undergoing
punitive imprisonment.
So much so, they shall be accorded more
relaxed conditions than convicts.
[489E]
(c) Fetters, especially bar fetters, shall be shunned as violative of human
dignity, within and without prisons.
The indiscriminate
resort to
handcuffs when accused persons are taken to and from court and
the expedient of forcing irons on prison inmates are illegal and shall
be stopped forthwith save in a small category of cases.
Reckless
handcuffing and chaining in public degrades, puts to shame
finer
sensibilities and is a slur on our culture.
[489F]
( d) Where an undertrial has a credible tendency for violence and escape
a humanely graduated degree of 'Iron' restraint is permissible if-only
if-other disciplinary alternatives are unworkable.
The
burden of
proof of the ground is on the custodian.
And if he fails, he will
be liable in lt.w.
[ 4890]
( e) The 'iron' regimen shall in no case go beyond the intervals, conditions and maxima laid down for punitive 'irons'. They shall be for
short spells, light and never applied if sores exist. [489H]
(f) The discretion to impose 'irons' is subject to quasi-'.judicial oversights
even if purportedly imposed for reasons of security.
[490A]
(g) A previous hearing, minimal may be, shall be afforded to the victims.
In exceptiona.1 cases, the hearing may be soon afrer. [490 Il]
(h) The gornnds for 'fetters' shall be given to the victim. And when
the decision to fetter is made, the reasons shall be recorded in the
journal and in the history ticket of the prisoner in the State language.
If he is a stranger to that language it shall be communicated to him,
as far as possible, in his language. This applies to cases as much of
prison punishment as of 'safety fetters. [490 B-C]
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SUN!L BATRA ·- DELHI ADMN. (Krishna Iyer, J.)
397
(i) Absent provision for independent review of preventive and punitive
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action, for discipline or security, such action shall be invalid as
arbitrary and unfair and unreasonable. The prison officials will then
be liable civilly and criminally for hurt to the person of the prisoners.
The State will u.rgenUy set up or strengthen the necessary infra ..
structure and process in this behalf-it already exists in embryo in
the Act.
[490C-D]
{j) Legal aid shall be given to prisoners to seek justice f.rom prison
authorities, and, if need be, to challenge the decision in Court-in cases
where they are too poor to secure on their own. If lawyer's services
are not given, the decisional process becomes unfair and unreasonable, especially because the rule of law perishes for a disabled
prisoner if counsel is unapproachable and beyond purchase. By and
large, prisoners are poor, lacking legal literacy, under the trembling
control of the jailor, at his mercy as it were, and unable to meet
relation or friends to take legal action. Where a remedy is all but
dead the right lives only in print. Article 19 will be violated
in
such a case as the process will be unreasonable. Article 21 will be
infringed since the procedure is unfair and is arbitrary. [490E-F]
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(k) No 'fetters' shall continue beyond day time as noctural fetters on
locked-in detenus are ordinarily uncalled for, viewed from cons
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derations of safety. [490G]
(1) The prolonged continuance of 'irons', as a punitive or preventive
step, shall be subject to previous approval by an external examiner
like a Chief Judicial Magistrate or Sessions Judge who shall briefly
hear the victim and record reasons.
They are ex-officio visitors
of most Central Prisons.
[490G]
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(ttl) The Jnsvector-General of Prisons shall, with quick despatch consider
revision petitions, by fettered prisoners and direct the continuance
or discontinuance of the irons. In the absence of such prompt decision,
the fetters shall be deemed to have been negatived and shall be
removed. [490H-491A]
(8) The Jurisdictional reach and range of this Court's Writ to hold prison
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caprice and cn1elty in
constitutional leash is
incontestable.
Prisoner have
enforceable liberties devalued may be but not demonetized, and under on balilic
scheme, Prison Power must bow before Judge Power if fundamental freedom
are in jeopardy. Activist legal aid as a pipeline to carry to the court the breaches
of prisoners' basic rights is a radical humanist concomitant of the rule of prison
law. And in our constitutional order it is axiomatic that the prison laws do not
swallow up the fundamental rights of the legally unfree, and as sentinels on
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the qui vive, courts will guard freedom behind bars, tempered, of course, by
environmental realism but intolerant of torture by executive echelons.
The
policy of the laW and the parmountcy of the Constitution are beyond purchase
by authoritarians glibly invoking 'dangerousness' of inmates and peace in prisons.
If judicial realism is not to be jettisoned, judicial activism must censor the
argument of unaccountable prison autonomy.
[409H, 410A, 412G-413B]
(9) Class actions, community litigations, representative suits, test cases and
public interest proceedings are in advance on our traditional court processes
and foster people's vicarious involvement in our justice system with a
broad
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SUPREME COURT REPORTS
[ 1979] [ S.C.R.
A
based concept of locus standi so necessary in a democracy where the masses
are in many senses weak.
The intervention of social welfare organisations in.
litigati\'€. proce.sses pregnant with wider implications is a healthy mediation,
between the people and the rule of law.
Wisely permitted, participative justice,
promoted through mass based organizations and public bodies with
special
concern seeking to intervene, has a democratic potential for the little men and
Jaw.
[414H, 4158]
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(10) Rehabilitation effort as a necessary component of incarceration is part
of the Indian criminal justice system as also of the United States. The custodial
staff can make a significant contribution by enforcing the rule of prison law and
preparing convicts for a law-abiding_ life after their release.
The important
proposition is that it is a crime of punishment to further torture a person undergoing imprisonment, as the remedy aggravates the malady and thus ceases to be
a reasonable justification for confiscation of personal freedom and is arbitrary
because it is blind action not geared to the goal of social defence, which is one·
of the primary ends of in1prisonn1ent. [416H, 416C, 417Fl
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Mohanuned Giasuddin v.
State of Andhra Pradesh
1977(3) SCC 287,
Shelton v. Tucker 364 US 476 (1950) at p. 468 referred to.
( 11) The Court does not 'rush in' to demolish provisions where
judicial
endeavour, p.n1e[oratively interpretational, may
achiev~ both
constitutionality
and compassionate resurrection. The semantic technique of updating the living
sense of a dated legislation is, perfectly legitimate, especially when, in a developing country like ours, the corpus juris is, in some measure a Raj hang over.
Courts must, with intelligent imagination, inform themselves of the values of
the Constitution and, with functional flexibility, explore the meaning of meanings
to adopt that Constitution which hllmane1y constitutiona.iises the statute in
question.
The jurisprudence of statutory construction, especially when a vigorous break with the pttst and smooth reconciliation with a rndical constitutional
value-set are the object, uses the art of reading down and reading wide, as part
of interpretational engineering.
[419D-E, 420E, 422B]
Weems v. United States 54 L. ed. p. 801, Harvard Law Review Vol. 24
(1970-71) p. 54-55.
R. L. Arora v. State of Uttar Pradesh (1964) 6 SCR 784,
referred to.
(12) Part III of the Constitution does not part company with the prisoner
at the gates, and judicial oversight protects the prisoner's shrunken fundamental
rights, if flouted upon or frozen by the prison authority.
Is a person under
death sentence, or undertrial unilaterally dubbed dangerous liable to suffer
extra torment too deep for fears ? Emphatically no, lest social justice, dignity
of the individual, equality before the law, procedure established by law and the
seven lamps of freedom (Art. 19) become chimerical constitutional clap trap.
The operation of Articles 14,19 and 21 may be pared down for a prisoner but
not puffed out altogether.
The necessary sequitur is that even a prisoner.
standing trial has basic liberties which cannot be bartered away.
( 428H-429B,
429EJ
(13) So the law is that for a prisoner all fundamental rights are an enforceable reality though restricted by the fact of imprisonment. When human rights
are hashe.:1 behind bars, constitutional justice impeaches such law. [430 C-B]
A. K. <Topalan v. State of Madras 1950 SCR 88; R. C. CoiJper v. Union of
India (1971) SCR 512; Kharak Singh v. State of U.P.
(1964)
SCR
232~
Maneka Gandhi v. Union of India (1978) 1 SCR 218, referred to.
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SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.)
399
( 14) ls solitary confinement or similar stressful
alternative,
putting the
~prisoner beyond the zone of sight and speech and society and wrecking his psyche
without decisive prophylactic or penological gains, too discriminating to be valid
.under Article 14, too unreasonable to be intra vires Article 19 and too terrible to
qualify for being human law under Article 21 ?
If the penal law merely
permits safe custody of a 'condemned' sentencee, so as to ensure his instant
availability for execution with all the legal rituals on the appointed day, is
not the hurtful severity of hermetic insulation during the tragic gap between the
first judgment and the fall of the pall, under guise of a prison regulation,
beyond prison power?
[43 lF-G]
(15) It is a certainty that a man in the death row who has invited that fate
by one murder and is striving to save himself from the gallows by frantic forensic
proceedings and mercy petitions is not likely to make his hanging certain by
committing any murder within the prison. [434B]
( 16} A n1ere administrative officer's deposition about 1he behavorial may be
of men under contingent sentence of death cannot weigh with us when the
limited liberties of expression and locomotion of prisoners are sought to be
unreasonably pared down or virtually wiped out by oppressive cell insulation.
Where total deprivation of the truncated liberty of
prisoner locomotion is
challenged the validatory burden is on the State.
[ 436C-D]
(17) Criminological specialists have consistently viewed with consternation,
-the imposition of solitary confinement punitively and, obviously,
preventive
·segregation stands on a worse footing since it does not have even a disciplinary
veneer.
Our human order must reject 'solitary confinement' as horrendous.
[444 H, 445 A-BJ
In re R::unanjulu Naidu AIR 1947 Mad 381 approved.
A
B
c
D
James C. Colemen-Abnormal Psychology and Modern Life p. 105 : Royal
E
·Commission on Capital Punishment 1949-1953 Report pp. 216-217.
Law Commission of lndia-42nd Report.
Referred to.
(18) Petitioner is under 'statutory
confinement' under the
authority of
·section 30(2) of the Prisons Act read with section 366(2) Cr. P.C. It will be a
stultification of judicial power if, under guise of using section 30(2) of the
Prisons Act, the Superintendent inflicts what is substantially solitary confinement
·. which is a species of punishment exclusively within the
jurisdiction of the
criminal court.
Held Petitioner shall not be solitarily confined.
[447B]
(19) Law is not a formal label, nor logomachy but a working technique
·-of justice.
The Penal Code and the Criminal Procedure Code regard punitive
solitude too harsh and the Legislature cannot be intended to permit preventive
, 'SOiitary confinement, released even from the restrictions of Sections 73 and 74
IPC, Section 29 of the Prisons Act and the restrictive Prison Rules.
It would
'·be extraordinary that a far worse solitary confinement, marked as safe custody,
sans .maximum, sans intermission, sans judicial oversight or natural justice,
would be sanctioned. [447D-E]
(20) Section 30 of the Prisons Act can be applied only to a prisoner "under
sentence of death". Section 30(2) which speaks of ''such" prisoners necessarily
relates to prisoners under sentence of death. We have to discover when we can
designate a prisoner as one under sentence of death.
Confinement inside
a
'prison does not necessarily impart cellular isolation. Segregation of one person
F
G
H
400
SUPREME COURT REPORTS
[1979] 1 S.C.It.
A
all alone in a single cell is solitary confinement. That is a separate punishment
which the Court alone can impose. It would be a subversion of this statntory
provision (Section 73 and 74 IPC) to impart a meaning to Section 30(2) of the
Priscns Act whereby a disciplinary variant of solitary confinement
can
be
clamped down on a prisoner, although no court has awarded such a punishment. [448B, 448D]
B
(21) "Apart from alJ other prisoners" used in Section 30(2) is also a phrase
c
of flexible import, segregation into an isolated cell is not warranted by the word.
All that it connotes is that in a cell where there are a plurality of inmate~. the
death sentencee will have to be kept separated from the rest in the same cell
but not too close to the others. And this separation can be effectively achieved
because the condemned prisoner will be placed under the charge of a guard
by way and by night.
[448-F-G]
(22) Prison offences are listed in section 45 and section 46 deals with punishment for such offences. Even if a grave prison offence has been committed,
the punishment does not carry segregated cellular existence and permits life in
association in mess and exercise in view and voice but not in communication
with other prisoners.
Punitive separate
confinement shall not
exceed three
months, and section 47 interdicts the combination of cellular confinea:rent and
D
"separate confinement" "Cellular confinement" is a stricter punishment than
separate confinement and it cannot exceed 14 days because of its rigour. Less
severe is cellular confinement under section 46(10) of the Prisons Act and uD.O'er
section 46(8). Obviously, disciplinary needs of keeping apart :'I prisoaner do not
involve any harsh element of punishment at all.
An analysis of the provision
of the Penal Code and of the Prisons Act yields the clear inference that section
30(2) relates to separation without isolation, keeping apart without close conE
finement.
[449B, 450B-C, 450F, 450H]
F
G
H
(23) The Court awards only a single sentence viz. - death. But it cannot be
instantly executed because its executability is possible only on confirmation by
the High Court.
In the meanwhile, the sentencee cannot be let loose for he
must be available for decapitation when the judicial processes are exhausted.
So it is that section 365(2) takes care of this awesome interregnum by committing the convict to jail custody.
Form 40 authori~·es safe keeping,
The
'safe keeping' in jail custody is the limited jurisdiction of the jailor. The convict is not sentenced to imprisonment.
He is not sentenced to solitary confinement. He is a guest in custody in the safe keeping of the host-jailor until the
terminal hour of terrestial farewell whisks him away to the
halter.
The
inference is inevitable that if the 'condemned' man were harmed by physical
or mental torture the law would not tolerate the doing, since injury and !'mfety
are obvious enemies.
To distort safe-keeping into a hidden opportunity to
cage the ward and to traumatize him is to betray the custody of the law. Safekeeping means keeping his body and mind in fair condition. To torture his mind
is unsafe keeping.
Injury to his personality is not safe keeping.
To preserve
his flesh and crush his spirit is not safe keeping.
Any executive action which
spells infraction of the life and liberty of a human being kept in prison precincts~
purely for safe custody, is a challenge to the basic notiOn of the rule of lawunreasonable, unequal, arbitrary and unjust.
(451 D-H, 452B, D.F]
(24) A convict is 'under sentence of death' when, and only when, the
capital genalty inexorably operates by the automatic process of the law.
'
•
•
'
•
J
• ..
1·
SUNIL BATRA v. DELHI ADMN. (Krishna Iyer, J.)
40 I
Abdul Azeez v. Karnataka [1977] 3 SCR 393 : D. K. Sharma v. M. P. Stal<
A
[1976] 2 SCR 289 referred to. [4540]
( 25) A self-acti1ag sentence of death does not come into existence in view
of the impediment contained in section 366 ( 1) even though the Se~ions Court
might have pronounced that sentence. Assuming that the High Court has confirmed that death sentence or has de novo imposed death sentence, even then,
there is quite a likelihood of an appeal to the Supreme Court and when an
B
appeal pends against a conviction and sentence in regard to an offence punishable with death sentenCe such death sentence even if confirmed by the High
Court shall not work itself , until the Supreme Court has pronounced judgment
Articles 72 rnd 161 provide for commutation of death sentence
even
like
sections 433, 434 and 435 Cr. P.C. Rules 547 and 548 made under the Prison
Act, provide for a petition for commutation by the prisoner.
It foUows that
during the pendency of a petition for mercy before the State Governor or the
C
President of India' the death sentence shall not be executed. Thus, until rejection
of the clemency motion by these two high dignitaries it is not possible to predicate that there is a self-executory death sentence and he becomes subject to it
only when the clemency applicl.ltion by the prisoner stands rejected.
[455BD, 456B, H, 457A]
(26). The goals of prison keeping, especially if it is mere safe keeping, can
be attained without requiring a prisoner to live in the exacerbated conditions
of bare-floor solitude.
Functionally speaking, the court has a distinctive duty
to reform prison practices and to inject constitutional consciousness into the
system.
Sastre v.
Rackefeller 312F.
Suppl. 863 (1970).
Wolfe v.
Mc
Donnell 41 I.. Ed. 2d. p. 935.
[465 B-Cl
(27) The great problems of law are the grave crises of life and both can be
solved not by the literal instructions of printed enactments but by the interpretative sensitization of the heart to 'one still,
sad
music
of
humanity.
[4710]
(28) . The humane thread of jail jurisprudence that runs right through is
that no prison authority enjoys amnesty for unconstitutionality
and forced
farewell to fundamentaJ right is an institutional outrage in our system where
stone walls and iron bars shall bow before the rule of law.
[471H-472A]
(29) Many states like Tamil Nadu, Kerala etc. have abandoned the disciplinary barbarity of bar fetters.
The infracticu of the prisoner's free<lon1 by
bar fetters is too serious to be viewed Jightly and the t+asic features of reasonableness must be built into the administrative process for constitutional surviva1.
Therefore, an outside agency, in the sense of an officer higher than the Superintendent or external ~o the prison department, must be given the power to review
the order of 'irons'. Rule 423 speaks of the Inspector General of Prisons having
to be informed of the circumstances necessitating fetters and belcbains.
Rule
426 has a similar import. A right of appeal or revision from the action of the
Superintendent to the Inspector Geni!ral of Prisons and quick action by way of
review are implicit in the provisions.
[477D, 477F·478A]
D
E
F
G
(30) One of the paramount requirements of a valid law is that it must be
within the cognizance of the community if a competent search for it were made.
H
Legislative tyranny may be unconstitutional if the State by devious methods
like pricing legal publications monopolised by government too high denies the
402
SUPREME COURT REPORTS
[ 1979] l s.c.R.
A
equal protection of the laws and imposes unreasonable restrictions on exercise
of fundamental rights [485G, 486B]
B
c
D
Bhuvan Mohan Patnaik v. State of A.P. [1975] 3 SCC 185, 189.
(31) The roota of our Constitution lie deep in the finer spiritual sources of
social justice, beyond the melting pot of bad politicking, feudal crudities and
sublimated sadism, sustaining itself by profound faith in Man and his latent
divinity, and so it is that the Prisons Act provisions and the Jail Manual itself
must be revised to reflect this deeper meaning
in
the
behavioral
norms,
correctional attitudes and humane orientation for the prison staff and prisoners
aliko.
[492E]
ARGUMENTS
For the Petitioner in Writ Petition No. 2202 of 1977.
1. Section 30 by its language does not enjoin the jail authorities to confine
a prisoner under sentence of death to solitary confinement.
It provides that a
prisoner under sentence of death should be confined in a cell apart from all
other prisoners aiid shall be placed day and night under the charge of a guard.
Such a prisoner is entitled to participate in all the recreational and rehabilitation
activities of the jail and is also entitled to the con1pany of other prisoners.
2. Section 30 requires that a prisoner "under sentence of death.. shall be
confined in the rllanner prescribed by sub-section (2). The expression '.under'
sentence of death' also oc·.:::urs ins. 303 1.P.C. In [1976] 2 SCR 289 the Suprcn1C
Collrt held tha'.t the expression 'must be restricted to a sentence which is final,
conclusive and ultimate so far as judicial remedies are concerned'. As far as
death sentence is concerned the trial does not end in the Sessions Court and
E
confirmation proceedings in the High Court are a continuation of the trial,
[1975] 3 S.C.R. 574.
In other words until the High Court confirms a sentence
of death, there is no operative executable sentence of death.
Article 134 of
the Constitution also provides for an appeal to the Supreme Court in certain
cases where the High Court has awarded death penalty.
F
3. The conditions of solitary confinement have the t~~dency of depriving a
prisoner of his normal faculties MJ.d may have the tendency to destroy
a
prisoner's mentality.
Justice, Punishment, Treatment by Leonard Orland 1973
Edn. 297, 307-308: Havelock Ellis,-The Criminal p. 327; History of solitary
confinement and its effects-134 US 160.
4. Solitary confinement is imposed as a punishment under sections 73 and 74
I.P.C. and under the Prisons Manual as a matter of prison discipline.
It does
not exceed 14 days at a time.
In the case of prisoner who is under a sentence
<i
of death, as construed by the jail authorities, however, such confinement continues over long periods.
11
5. The Law Commission of India in its 42nd Reports at p. 78 has recom·
mended the abolition of solitary confinement. Courts have also condemned it.
A.LR. 1947 Mad. 386; 134 US 160. 167, 168.
6. There are compelling reasons that a narrow construction should be put
on Sec. 30 which will reduce the extreme rigour and penahy of the law. Only
a court has the authority to inflict a punishment.
The jail authorities do not
have a right to inflict any punishment except as a matter of jail discipline.
As
•
•
j
•
I
SUNIL BATRA V'. DELHI ADMN. (Krishna Iyer, J.)
403
· s. 30 empowers the jail authorities to impose an additional punishment of solitary
A
confinement, it is submitted that it is violataive of Art. 20( 1) of the Constitution.
7. The expression under 'sentence of death' should be constt.i:ed to mean
, 'under a fi~1al executable, operative .sentence of death'. There is legislative injunction against the execution of a sentence of death in Ss. 366, 413, 414, 415, 432
and 433 Cr. P. C. A sentence of death cannot be executed till the appeal, if any,
has been finally disposed of by the Court.
A prisoner has also the right to
make mercy petitions
to the Governor or the President as the case may be.
Para 548 of the Prison Rules provides that in no case is the sentence of death
to be carried out before the Government's reply to the mercy petition is received.
Till this time arrives, a prisoner under sentence of death is entitled to be treated
as a human being with a hope for the future, entitled to struggle for rehabilita·
tion.
Till the final stage has 2.rrived, such a prisoner ca1u1ot be treated as a
· lost, condemned human being.
8. Section 30 is violative of Art.
14 of the Constitution.
It imposes the
penal~y of solitary confinement on condemned prisoners without any distinction.
The Prison Manual does contain provision for dangerous prisoners who OX.y,
as a matter of prison discipline, be kept in solitary confinen1ent. Failure to make
a distinction between a safe prisoner under sentence of death and a hostile and
dta.ngerous prisoner introduces arbitrariness in the treatment accorded to prisoners
under sentence of death and thus is violative of Article 14.
9. A prisoner is not det1rived of his personal
liberties [1975]2 SCR 24.
Article 21 is subject to Article 14.
[1978] 1 S.C.C. 248.
The expression 'life'
as used in Article 21 means fiomething more than mere animal existence and
·the inhibition against ~ts deprivation extends to all those limits and faculties by
which life is enjoyed.
.For t!ie Respondent in W.P. 2202/77
J. Criminal !law of T ndia recognises capital punishment.
It is awarded in
very few case~. It is tiot the rule but rather the exception, [1974) 3 S.C.R. 340.
2.