# SUNIL BATRA v. DELHI ADM;fNISTRATION

- **Citation:** [1980] 2 S.C.R. 557
- **Court:** Supreme Court of India
- **Decided:** 1979-12-20
- **Case number:** Writ Petition No. 1009 of 1979
- **Bench:** V. R. KRISHNA lYEiR, R. S. Pathak, 0. Chinappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunil-batra-v-delhi-adm-fnistration-7911
- **Pages:** 50

## Headnote

B
Consti/1'.l.tion of India 1950, Article 32-Tortune inflicted on. prisoner in jailfactum of torture brought to notice of court-power and responsibility of CoUrt
'ii to intervene and protect prisoner.
Prisons Act 1894, Ss 27, 29 and 61 & Punjab Prison Manual, Paras 41, 47t
49 and 53--Solitary confinenient, denial of privileges, amenities to prisoners-to C
be imposer/. with judicial appraisal of Sesaions Judge-Prison Manual to be; ready
reach oj prisoners-visits to jails by vis(tors, official and non-official-keeping
of grie1•ance boxes in prisons and remedial ·action on grievances by Sessions
fudges-PeP'i0tlical reports to be forwarded to the High Court-refornis sug.-.
gested in vrison management and procedure.
Legal ~tid-provision, of free legal aid to prisoners-necessity of.
The petitioner, a convict unde;r death sentence, through al letter to one of
the Judges Clf this Court aJleged that torture· was practised, upon another prisoner
·by a jail "\"lli'arder, to extmct money from the victim through his visiting relations.
The letter was converted into a habeas corpus proceeding. The Court issued
notice to the State and the concerned officials. It also appointed amicus curiae
and autho1 ised them to visit the prison, meet the prisoner, see relervant documents 3.nd interview necessary witnesses so as to enable them to inform them"'
selves about the surrounding circumstances and the scenMio of events.
The an-1icus curiae after visiting the jail and examining \Vitnesses reported
that the prisoner sustained serious anal injury because a rod was driven into
that aperture to inflict inhuman torture and that as the bleeding had not stopped,
!:to was removed to tho jail hospital and, later to the Irwin Hospital. It was also
reported that the prisoner's explanation for the anal rupture was an unfulfilled
demand of the wa1der for money, and that attempts were made by the departmentol officers to hush up the crime by overawing the prisoner an<l the jail
doctor and offering a story that the injury was either due to a fall or self-infl.ic ..
tion or due to piles.
Allowing the writ petition.
HELD:
.(Per Krishn> Iyer and Chinnappa Reddy, JJ.)
I. la) Prem Chand the prisoner, hae been
tortured
illegaUy
and
the
"Superintendent cannot absolve himself from responsibility even though he may
not be dire:tly a party.
Lack of vigilance is limited guilt. The primary guilb
cannot be fixed bocause a criminal case is pending or is in the offing. The
State shall take oction against the investigating police for collusive dilatorine!l!i
and deviousness.
(599 FJ
---··-··-....- ---
E
'
B
558
SUPREME COURT REPORTS
[l %0] 2 S.C.R:,
A
(b) The Superintendent is directed to ensure that no corporal punishment
or personal violence on Prem Chand shall be inflicted. No irons shall be
forced on the person in vindictive spirit. [599 ITJ
(c) La1,1:yers nominated by the District Magistrate, Sessions Judge, High
Court or the Supreme Court will be given all' facilitiesi for interviews, visits ancr
confidential co1nmunicaotion with prisoners subject to discipline
and
security·
B
considerations. The lawyers so designated shall bei bound to make periodical:
visits and record and report to the concel')led courts, results which have relevance
to legal grievances. [600 A-BJ
c
( d) Within the next three months, Grievance Deposit Boxes shall be Diilin- y .
tained by or under the orders of the District Magistrate <md the Sessions Judge
which will be opened as frequently as is deemed fit and suitable action taken:
on complaints made. Access to such boxes sha.Jl be afforded to all Prisoners •.
[600 CJ
(e) District Magistrates and Sess_ions Judges shall, persona1ly or through·
iiurroga-tes, visit prisons in their jurisdiction! and afford effective opportunities for--
ventilating legal grievances, shall make expeditious enquiries there into and takesuitable remedial action. In appropriate cases report$ shall be made to the Highr
D
Court for. the latter to initiate, if found necessary,

## Text

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557
SUNIL BATRA
A
v.
DELHI ADM;fNISTRATION
December 20, 1979
{V. R. KRISHNA lYEiR, R. S. PATHAK AND 0. CHINAPPA REDDY, JJ.]
B
Consti/1'.l.tion of India 1950, Article 32-Tortune inflicted on. prisoner in jailfactum of torture brought to notice of court-power and responsibility of CoUrt
'ii to intervene and protect prisoner.
Prisons Act 1894, Ss 27, 29 and 61 & Punjab Prison Manual, Paras 41, 47t
49 and 53--Solitary confinenient, denial of privileges, amenities to prisoners-to C
be imposer/. with judicial appraisal of Sesaions Judge-Prison Manual to be; ready
reach oj prisoners-visits to jails by vis(tors, official and non-official-keeping
of grie1•ance boxes in prisons and remedial ·action on grievances by Sessions
fudges-PeP'i0tlical reports to be forwarded to the High Court-refornis sug.-.
gested in vrison management and procedure.
Legal ~tid-provision, of free legal aid to prisoners-necessity of.
The petitioner, a convict unde;r death sentence, through al letter to one of
the Judges Clf this Court aJleged that torture· was practised, upon another prisoner
·by a jail "\"lli'arder, to extmct money from the victim through his visiting relations.
The letter was converted into a habeas corpus proceeding. The Court issued
notice to the State and the concerned officials. It also appointed amicus curiae
and autho1 ised them to visit the prison, meet the prisoner, see relervant documents 3.nd interview necessary witnesses so as to enable them to inform them"'
selves about the surrounding circumstances and the scenMio of events.
The an-1icus curiae after visiting the jail and examining \Vitnesses reported
that the prisoner sustained serious anal injury because a rod was driven into
that aperture to inflict inhuman torture and that as the bleeding had not stopped,
!:to was removed to tho jail hospital and, later to the Irwin Hospital. It was also
reported that the prisoner's explanation for the anal rupture was an unfulfilled
demand of the wa1der for money, and that attempts were made by the departmentol officers to hush up the crime by overawing the prisoner an<l the jail
doctor and offering a story that the injury was either due to a fall or self-infl.ic ..
tion or due to piles.
Allowing the writ petition.
HELD:
.(Per Krishn> Iyer and Chinnappa Reddy, JJ.)
I. la) Prem Chand the prisoner, hae been
tortured
illegaUy
and
the
"Superintendent cannot absolve himself from responsibility even though he may
not be dire:tly a party.
Lack of vigilance is limited guilt. The primary guilb
cannot be fixed bocause a criminal case is pending or is in the offing. The
State shall take oction against the investigating police for collusive dilatorine!l!i
and deviousness.
(599 FJ
---··-··-....- ---
E
'
B
558
SUPREME COURT REPORTS
[l %0] 2 S.C.R:,
A
(b) The Superintendent is directed to ensure that no corporal punishment
or personal violence on Prem Chand shall be inflicted. No irons shall be
forced on the person in vindictive spirit. [599 ITJ
(c) La1,1:yers nominated by the District Magistrate, Sessions Judge, High
Court or the Supreme Court will be given all' facilitiesi for interviews, visits ancr
confidential co1nmunicaotion with prisoners subject to discipline
and
security·
B
considerations. The lawyers so designated shall bei bound to make periodical:
visits and record and report to the concel')led courts, results which have relevance
to legal grievances. [600 A-BJ
c
( d) Within the next three months, Grievance Deposit Boxes shall be Diilin- y .
tained by or under the orders of the District Magistrate <md the Sessions Judge
which will be opened as frequently as is deemed fit and suitable action taken:
on complaints made. Access to such boxes sha.Jl be afforded to all Prisoners •.
[600 CJ
(e) District Magistrates and Sess_ions Judges shall, persona1ly or through·
iiurroga-tes, visit prisons in their jurisdiction! and afford effective opportunities for--
ventilating legal grievances, shall make expeditious enquiries there into and takesuitable remedial action. In appropriate cases report$ shall be made to the Highr
D
Court for. the latter to initiate, if found necessary, habeas action. [600 D]
E
(f) No solitary or punitive cell, no hard labour or dietary change as painful\
additive, no other punishment or denial of privileges and amenities, no trttsfer
to other prisons \Vith penal consequences, shall be imposed 'vithout judicial'
appraisal of the Sessions Judge and where such intimation, an account of emer~
gency is difficult such information sht&ll be given within two days- of th~
action.
[601 B-C]
2. Jn out era of hun1an rights' consciousness the habeas writ has functional'
plurality and the constitutional regard for human decency and dignity is tested>
•
by this capability.
[563 El
-----;rF
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3. Protection of the prisoner within his rights is part of the
office
of·
Article 32. [564 CJ
4. It behove~·the court to insist that, in the, eye· of law, prisoners zre1 persons,
not animals, and to punish the deviant •guardians.' of the prison system where·
they go berserk and defile the dignity of the human inmate. Prison housesare part o[ Indian earth and the Indian Constitution cannot be held at bay by
jail officials 'dressed in a little, brief authority', when Pa-rt III ~.invoked by a.
convict.
When a prisoner is traumatized, the C'Onstitution suffers a
shock.
[564 D-EJ ,
..
I
5. The courts in America have, through the decisional process, brought the-
.-f-.--.i::
rule of law into the prison system pushing back, pro-tanto, the 'hands-off' doctrine;.
The content of our constitutional liberties being no less, the: dynam;cs. cf habens·
writs ther~ developed help the judicial process heire1.
The full
poteDtifil of
Arts. 21, 19 & 14 after Maneka Gandhi has been unfolded by this Court in
Hoskot and Batra. 1"oday, human rights jurisprudence in1 India }Jas a constituH
tional status ood sweep. [573 A, 574 DJ
,
6. Rulings of this Court have highlighted the fact that the framers of the
Constitution have freed the powers under Art. 32 from the rigid restraints of
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SUNIL BATRA v. DELHI ADMINISTRATION
559
the traditional English writs.
Flexible directives, even affirmative action 1noulded
to grant relief, may realistically bo issued and fall within its fertiJ·, width. [575 f]
Dwarkanath Y. Income Tax Officer [1965] 3 SCR 536 referred to.
7. 'i\fhere
inju~tice, verging on inhumanity, emerges from hacking human
rights ,guaranteed in Part III and the victim beseeches the Court to intervene
and re"lieve, the Court will be a functional futility as a constitutional instriirnentality if it does not go into action until the wrong is righted.
The Court
is not a distant abstraction omnipotent in the books but an activist institution
which is the cynosure of public hope. The court can issue writs to meet the
new challenges.
[576 DJ
8. i\ffirmed in unmistakable& terms that the court has jurisdiction under Art. 32
and so too under Art. 226, a clear power and, therefore,, a public duty to give
relief to sentence· in prison setting.
[576 F1
9. In Sunil Batra v. Delhi Administration (1978) 4 SCC 409 this Court
rejected the 'hands-off' doctrine ~nd ruled that funda-mental rights do not flee:
the person at> he enters the prison although they may suffer shrinkage necessitated
by incarceration. Our Constitutional culture has now crystallised in favour of
prison justice and judicial jurisdiction. [576 H·577 A}
A
B
c
D
10. Where the rights of a prisoner, either under the Constitution. or under
other l'aw, are violated- the v.•rit power of the court can and should run t()I
his; rescue. There is a warrant for this vigil. 'The court proce~ casl<i the convict
_ \/,into t'lll~-prison system and the deprivation of his freedom is not a \,Jind peniten·
'~ tiary altflicti<Jn but a beJighted institutionalisation geared to a social good. The
i.....
court bas a continuing responsibility to ensure that the constitutional purpose· of
the deprivation is not defeated by the prison administration. [577 E-F)
E
11. Whether inside prison or outside, a person shall not be deprived of his
guaranteed freedom save by methods 'right, just and fair'.
[578 E.]
12. A prisoner \\'ears the armour of basic freedom even behind bars and
that on breach thereof by lawless officials the law will respond to hi!l distress
signals through 'writ' aid.
The Indian human ha~ a constant companion-the
F
court armed with the Constitution.
[578 H]
Maneka Gandhi v. Union of India [1979] 1 SCC 248 :
N. Tl. lloskot v.
Mahar,2'htra, [1979] I SCR 192, referred to.
13. Implicit in the power to deprive the sentencee of his personal liberty,
the Court bas to ensure that no more and no less than is \Varrnn1ed b:Y tbci
sentence happens. If the prisoner breaks down because of mental torture,
psychic; pressure or physical infliction beyond the licit limits of lawful in1prisonment the Prison Administration shall be• liable for the excess. On the contrary,
if an influential convict is able to buy advantages and liberties to avoid 011
water down the deprivation implied in the sentence the Prison Establishment will
be caUed to order for such adulteratiom or dilution of court sentences by executive palliation,. if unwarranted by law. [579 B-CJ
14. The court has power and responsibility to intervene and protect the
prisoner against n1ayhem. cn1de or subtle, and may use
habeas corpu5
for
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560
SUPREME COURT REPORTS
[1980J 2 s.c.R.
enforcing in-prison humanism and forbiddance of harsher restraints arid heavier
severities than the sentence carries. [579 E]
I 5. Law in the books and in the courts is of no heJp un1ess
1 it reaches the
prisoner in understandable, language and available form. There is therefore need
.to get ready a Priscners' IIandbook in the regional language and make them
freely available to the inmates. To know the law is the first step to be free
B
from fear of unlaw. [582 CJ
!6(i) The most important right of a prisoner is to integrity of his ph)'Sical
person and mental personaJity. No prisoner can be personally subjected to
deprivations not necessitated by the fact of incarceration and the sentence of
court.
[584 D, 583 CJ
C
(ii) Jnflictions 1nay take n1any protean forms, apart from physical assaults.
Pushing the prisoner into a solitary cell, denial of a necessary amenity, and
more dreadful sometimes, transfer to a distant prison where visits or society of
friends or relatives may be snapped, allotment of degrading labour, a~ignment to
a desperate or tough goog and the like, may be punitive
1 in effect. E\"ery such
affliction or nbridgeJnent is an infraction of liberty or Jife-in its wider sense· and
cannot be sustained unless Art. 21 is satisfied. There must be a corrective legal
D
procedure, fair and reasonable and effective. Such infraction will be arbi~
under Article 14, if it is dependent on unguided discretion, unreasonable under
Art. 19 if it is irremediable and unappealable, and unfair under ~. 21 if it
violates natural justice. Some prisoners, for their own safety, may. desire. segregation.
In such cases, \Vritten consent and immediate report tol higher authority
are the least, if abuse is to be tabooed.
[584 F-H, 586 GJ
E
F
(iii l Visit to prisoners, by fimily. and friends are a solace in insulation : and
only a dehumanised system can derive vicarious delight in depriving prison
inmates of rbis humane amenity. Subject, of course, to liearch and discipline
and other gecurity criteria, the right to society of fellow-men, parents and other
family n1embers cannot be denied in the light of Art. 19 ood its sweep.1 [586 ·H]
17. Prison power, absent judicial watch tower, may tend towards torture.
The judges are gu~rdians of prisoners' rights because they havei a duty.-to secure
the execution af the1 sentences without C)kcesses and to sustain the personal liberties
of prisoners without violence on or violation of the inmates' personality. [588 D,
590 CJ
18. In a den1ocracy, a wrong to some one is a wrong to every one and an
unpunished criminal makes society vicariously guilty.
[59~ DJ
G
19. When offences are alleged to have taken place within the prison,. there
H
should be no tinge or trace of departn1ental collusion or league between the
police and the prison staff.
[605 A]
[Directives for which no specific time limit fixed except the urgency of their
implementation :
I (i) The State shall take early steps to prepare in flindi,
a
Prisoner's
Handbook and circulate copies to bring legal awareness home to the inmates.
Periodical jail bulletins stating bow improvements and habilitative programmes
are brought into the prison may ·create a fellowship which will ease tenSions.
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SUNIL BATRA V. DELHI ADMINISTRATION
561
A prisoners' wall paper, which will freely ventilate grievainces \Yill also reduce
A
•tress.
All! these are implementary of s. 61 of the Prisons Act. (601 D, El
(ii) The State shall take steps to keep up to the Standard Minimum Rules
for Treatment of Prisoners recommended by the United Nations, especially those
relating to work and wages, treatment with dignity, community contact arid
correctional strategies. [601 F]
(iii) The Prisons Act needs rehabilitation and the Prisoni l\.fanual total over·
haul.
A correctionaJ.·cum:orientation course is necessitous for the prison staff
inculcating the constitutional values, therapeutic approaches
and
tension-free
~ management. (601 HJ
.
(iv) TJt~, prisoners' rights shall be protected by' the court by its writ juriscUc1ion plus c:ontempt power. To make this jurisdiction viable, free legal ser\'ices
to the prisoner programmes shall be promoted by professional
organisations
recognised by the Coun such as for e.g. Free Legal Aid (Supreme Court)
Society. 11le District Bar shall, we recommend, keep a cell for prisoner relief.
I602 Al
(Per Pathak J. concurring)
B
c
1. The prisoner Prem Chand bas been tortured while in custody in the Tihar
D
Jail. [605 DJ
2. The Superintendent of the jail to ensure that no- punishment or pe'rsonal
violence is inflicted on Pren1 Chand by reason of the complaint made. in· regard
to the torture. [605 El
3. Pressing need for prison reform and provision for a(lequare facilities to
prisoners, to enable them not only to be acquainted with their legal rights but
.aJso .!o record. their complaints and grievances and to have confidentia-1 interviewS
periodically with lawyers nominated for the1 purpose by the Oi'itrict h.fagistrate
<Jr the Court having jurisdiction.
[605 G]
4. Impt~rative that District Magistrates and Sessions Judges shollid visit the
prisons in their jurisdiction and afford effective opportunity to the prisoners for
ventilating their grievaaces and \Vb.ere the matter lies within their powers, make.
.expeditious enquiry and take suitable remedial action.
[605 H]
5. Sessions Judge should be informed by the jail authorities of any punitive
action taken againsi a prisoner \\o'ithin two days of such :iction. {606 Al
6. A st.'1.tement by the Sessions Judge in regard to his visits, enquiries made
and action tl!lten thereon sball be submitted periodically to the High Court to
·acquaint it vrith the conditions preyailing in the prisons within its jurisdiction.
,(606 BJ
ORIGINAL JURISDICTION: Writ Petition No. 1009 of 1979.
Under Article 32 of the Constitution.
Dr. Y. S. Chitale and Mukul Mudgal for the Petitioner.
Soli J. Sorabjee, Solicitor General of India, and R. N. Sachthey for
the Respondent.
E
F
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B
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£
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562
SUPREME COURT REPORTS
[1980] 2 s.c.R.
The Judgment of V. R. Krishna Iye.r and 0. Chinnappa Reddy,
JJ. was delivered by Krishna Iyer, J.
R. S. Patliak, J. gave a separate Opinion.
KRISHNA IYER, J.-This writ petition origillated, epistolary fashion.
in a letter by a prisoner, Batra, to a. Judge of this Court (one of us).
complaining o~ a brutal assault by a. Head Warder on another prisoner,
Prem Chand. Forms were forsaken since freedom was at stake and the
letter was posted on the Bench to be metamorphosed into a habeas
proceeding and wa' judicially navigated with electric creativity, thanks
to the humanist scholarship of Dr. Y. S. Chitale as amicus curiae, and )Ir
the erudite passion for affirmative court action of Shri Soli Sorabjee,
the learned Solicitor General.
Where the prison process is de-humanised, forensic help, undeflected by the negative cruidities of the adversary system, makes us dare where we might have daunted.
The finest
hour of justice comes when court and counsel constructively collaborate to fashion a relief in the individual case and fathom deeper
tCJ
cure the institutional pathology which breeds wrongs and defies rights.
Here, the individual is a prisoner whose anus was allegedly pierced
with a warder's baton and the institution is the Tiha.r Prison, right hi
the capital of the country and under the nose of the Home Mini~try.
The Perspective
This case is revelatqry of serveral sins in this central penitentiary.
'Something is rotten in the' State of Denmark!'
The constitutional
imperative which informs our perspective in this habeas corpus proceeding must first be set out. The rule of law meets with its Waterloo when the State's minions become law-breakers and so the court,
as the sentinel of the nation and the voice of the Constitution, runs
down the violators wilb its writ and secures compliance with human
rights even behind iJron bars and by prison warders.
This case is
at once a symptom, a symbol and a signpost vis a vis human rights in
prison situations. When prison trauma prevails, prison justice must
invigilate and hence we broaden our 'habeas' jurisdiction. Jurisprudence. cannot slumber when the very campuses ofi punitive justice witness torture.
The petitione.r does not seek the release of the prisoner because a
life sentence keeps him in confinment.
But the dynamic role
of
judicial remedies, after Batrcis case('), imparts to the habeas corpus
writ a versatile vitality and operational utility that makes the healing
presence of the law live up to its reputation as bastion ·of liberty even
within the secrecy of the hidden cell.
Blackstone called it
'the
(l) Sunil Batra v. Delhi Administration [1979] l SCR 392c
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SUNJL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, /.)
563
great and efficacious writ in all manner of illegal confinement' and
Lord Deman proclaimed in 1839 that it had been 'fetr ag~ effectual
to an extent never known in any other country'.
So long as Batra
remaiias good law, judicial policing of Bastille practices will broaden
to embarce the wider range of prison vices.
Dr. Chitale drew our
attention to American legal literature discl(l;ing the trend while Shri
Soll Sorabjee for the Union of India, cited Corwin. Corwin's remarks on American constitutional law, referred to with approval in
Britra, bas our(') assent:
Federal courts have intensified their oversight of State
penal facilities, reflecting a heightened concern with the extent to which the ills that plauge so-called correctional institution overcrowding, understaffing unsanitary facilities, brutality, constant fear of violence, lack; of adequate medica~ and
mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inade-
'1uate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate• the Eighth
Amendment ban on "cruel and unusual punishments."
'Ifae essence of the matter is that in our era of human rights
consciousness the habeas writ has functiona~ plurality and the constitu•
tional regard for human decency auci dignity is tested by this capability.
B·
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We ideologically accept the words of Will Durant(2). "It is time for
it; "
all good men to come to• the aid of their party, whose naTnd is civilization."
Likewise, we endorse, as1 part of our constitutional thought,
what the British Government's White Paper, titled 'People in Prison',
stated with telling effect :
A society that believes in the worth of individual beings
Jr'
can have the quality of its belief judges, at least in part, by
the quality of its prison and probate services and of the re5:ources made available to them.
The learned Solicitor General brought this key-note thought to
our
notice in the matchless diction of Sir Winston Churchi!\ and briefly reG·
ferred to in Batra ( ') in a speech seventy years ago :
The mood and temper of the public in regard to the treatment of crime and criminals is one of the lllO!;t unfailing
tests of the civilisation of any country.
A calm dispassionate
(I) Supplem,nt to Edward S. Corwin's. Th< Constitution p, 245 quoted in
l rnpra at p. 410.
(2) Cited in Suna Batra v. Delhi Adir 1:. (supra) at 422.
(3) Ibid at 423.
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SUPREME COURT REPORTS
[1980] 2 s.c.R.
recognition o~ the rights oft the accused, and even of the convicted criminal, against the State-a constant heart searching by all charged with the duty of punishment-a desire 11.nd
eagerness to rehabilitate in ihe world of industry those who
have paid their due in the hard coinage of punishment :
tireless efforts towards the discovery qi' curative and regenerative processes : unfailing faith that there i~ a treasure, if
you can only find it in the heart of every man. These are
the symbols, which, in the treatment of crime and criminal,
mark and measure the stored-up strength of a nation, and
are sign and proof of the living virtue in it. ( ')
<:
Truly, this is a perspectiv~setter and this is also the import of
the,
Preamble and Art 21 as we will presently see.
We are satisfied that
protection of the prisoner within his rights is part of the office of Art.
32,
'Prisons are built with stones of law' and so it behoves the court to
insis~ that, in the eye of law, prisoners are persons, not animals,
and
punish the deviant 'guardians' of the prison system where they
go
berserk and defile the dignity of the human inmate.
Prison houses
are part 9f Indian earth and the Indian Constitution cannot be 'held
at bay by jail officials 'dressed in a little, brief authority', whetlj Part III
is invoked by a convict
For when a prisoner is traumatized,
the
Constitution ~ffers a shock.
And when the Court takes, cognizance
of such violence and violation, it does, like the Hound of Heaven, 'But
with unhurrying chase, And unpurterbed pace, Deliberate speed, and
Majestic instancy' follow the official offender and frown down the
outlaw adventure,
if'
The Facts
What are the facts which have triggered off this judicial action ?
The resume of facts, foul on its face, reveals the JegnI issues raised,
brings into focus the basics of prisoner's rights and helps the court
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forge remedial directives so as to harmonise the expending habeas jurisprudence with dawning horizons of human rights and enlightened measures of prison discipline.
Batra, a convict under death sentence
lodged in the Tihar Central Jail, came to know of a crime of torture
practised upon another prisoner, Prem Chand, allegedly by a jail warder,
Maggar Singh, as a means to extract money from the victim through his
n
visiting relations.
Batrn braved the consequences of Jail indignatiO)l
(1) Winston Churchill \Vhen speaking, on July 25, 1910., as Home Secret<'-ry
iii the House of Commons.
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SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer,!.) 565
and brought the incident to the ken of the Court, resulting in these
proceedings which, though not strictly traditional, are clearly in the
nature of habeas corpus writs and therefore, within the wider sweep
of Art. 32.
The court issued notice to the State and the concerned
officials, appointed Dr. Y. S. Chitale and Shri Mukul Mudgal
.as!
amicus, authorised them to visit the prison, meet the prisoner
and
see relevant documents and interview necessary witnesses so as to
enable them to inform themselves about the surrounding circumstances and the cruel scenario of events.
Counsel on both sides
have
sensitized the issue of prison justice admirably and catalysed the
caus" of jail reforms effectively.
The democratic hope of the profession is its 'people's orientation, not its lucrative potential nor its intellectual intricacies.
And service in the field of the handicapped human
sectors, like prisoners, is a social justice contribution.
The enthusiastic work done in the case by the young lawyer, Shri Mudgal, assisting Dr. Chitale, deserves our commendation, even as the unreserved
support rendered to the Court by Shri Sachthey is in the good tradition
of the Bar.
!lack to the facts.
One Central episode round which the skein
of further facts is wound is beyond doubt, viz. that Prem Chand, the
prisoner, sustained serious anal injury on or about Augnst 26, 1979,
because a rod was driven into that sore ape.rture to inflict inhuman torc:
ture.
The contemporaneous entry in the Jail Hospital register reads :
E.
One prisoner Prem Chand s/o Pyara Lal has developed tear of anus du~ tq forced iq.sertion of stick by! Remarks
of Superinsomeone,. He require surgical repair and his bleed- ~ tendent.
Noted
27
ing has not stopped. He is to go to Irwin Hospital j Aug., 79 sd D.S.1.2.35 p.m.
ca.sulty immediately.
Sd/·
p
(DR. KAPOOR)
2·00 p.m.
The prisoner's later narration to the doctor in the Irwin Hospital corroboraies the case.
The unsuccessful and unworthy attempts, pre>-
sumably by overawing the prisoner and even the doctor, and other
dubious devices, which we do not now scan, to do away with this
primary incriminating factor by offering incredible alternatives like
ruptw-e of the anus by a fall or self-infliction or due to piles and sillier
stories. only show how the subtle torture of the officials could extract
falsehoods from the victim and even medical officers, exclupatory of
the official criminal whoever he be.
There are some traces of attempts
to hush up the crime where the higher officers have not been that'
innocent.
We are taken aback that the tardy polica investigation;
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SUPREME COURT REPORTS
[1980] 2 S.C.R •.
:.ti.
with its lethargic pact4 and collusive ways, ha~ hardly done credit to the
Police Department's integrity, a fact that the Government will
take
note of, withont institutional sheltering of police delinquents. Imagine
a police investigator, hunting for contradictions obviously to absolve
the head warder by interrogating Dr. Kapoor who bad made
an
entry in the hospital register and told Dr. Chitale that the prisoner
had an anal rupture which could not be self-inflicted or caused by a
fall and was so serious as to require immediate removal to Irwin Hospital, and making him say, long afterwards on 2-10-1979 by delaying
the laying of the chargesheet thus :
"A prisoner named Prem Chand •/o Prehlad was pro-
<(;
duced before me for treatment on the afternoon of Snnday
26th August, 1979.
He was bronght by some wa;der.
He was complaining of bleeding from boils on the buttocks.
'This was also told by the warder who brought him.
He was given the required treatment as he was kept under
observation on his request.
Next day during th"' ward rounds when I examined him,
he was having tears of anu~ and bleeding.
On inquiring he
told that this has happened due to forced insertion of a stick
irito his anus.
Then he was referred to Irwin Hospital for further treatment.
V. K Kapoor 2-10-79"
Can human nature be such rubbec ?
More than the probity of the investigation and the veracity of the
ol<' . doctor are at stake-hope in human integrity without which human
dignity will be the first casualty.
•G
These observations are not impressionistic but we leave it at
that since our primary purpose is to protect the person of the prisoner,
not to prosecute the offender.
We do not wish to prejudice
that
proce8s.
Regrettably, the 'hearsay' affidavit of the Under Secretary
(Home), Delhi Administration, Shri Nathu Ram, blinks at the
jail
vices and merely dresses up the official version without so much as an
inquisitorial audit of the lurid happenings in a premier correctional
institution of the nation.
We deplore the indifferent affiant's omnibus approval of every official conduct, whereas we should, instead,
have expected Government, which sincerely swears by human rights
and whose politiciil echelons in succession, over the decades; are not
strangers to the actualities in these detention campuses to have put
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SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, J.) 567
:aside the tendency to white-wash every action with an official flavour.
Where human rights afe at stake prestige has no place.
After the prisoner was subjected to brutal hurt he was removed to
the jail hospital and later to the Irwin Hospital but an his re-transfer
be was neglected; but we do not pursue the identity of the culprit or
the crime or the treatment since a police investigation i' under way.
Nevertheless, we cannot but remark that whatever damage might hav(l
been done upto now, a secon<l investigation by a C.B.I. officer is justified, if truth has been suppressed.
Dr. Chitale pointed out certain
---- _ i poignant facts such as the prisoner himself having been pressured into
-statements contrary to the case of anal infliction.
We do not make
comments on them although we are unhappy at the way the busines~
of investigation has been done.
Indeed, the potential for oblique
mutual help between the police and the prison staff makes Jail offences
by jail ofucia1s undetectable; and so0 to obviate this possibility, the
CB.I. may well be entrusted, as a regular practice, with such cases
The prisoner being a person, we cannot write him off.
The alleged offender, Warder Maggar Singh, may be left aside for
:a while.
Thertj are other aspects of thei torture which demand deeper
probe and panacea.
The prisoner's explanation for the anal rupture
is stated to be an unfulfilled demand for mOJJey, allegedly a general
practice.
This shows, if true, that bribery, at the point of barbarity,
is a flourishing trade within 1he house of punishment itse1f.
How
stern should the sentence be for such official criminals andl how diligent
should the State be to stamp out this wicked temptation ! If you want
to end prison delinquencies you must abolish the motivations and opportunities.
A
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The counter-case, if we may so call it, of the Warder as discl0sed
F
•
in the Superintendent's report, is equally disturbing, if true :
On 25-8-79 evening life prisoner Prem Chand S/o Sh.
Prahlad was produced before the Deputy Superintendent for
takinii Mandrix tablets. As he was in state of intoxicatiQn
because of taking Mandrix tablets which he admitted before
the Deputy Superintendent, he was kept in a cell pending
orders of the Superintendent. Central Jail. He was taken to
the jail hospita] the next day i.e. on 26-8-79 on a: report from
the above said prisoner as he had pain in his anus and was
bleeding. The prisoner remained admitted into the jail hospital
upto 27-8-79, 2 p.m. when the Dr. V. K. Kapoor, Medical
Officer, recommended for the shifting of this prisoner to the
Irwin Hospital with the report mentioned in the petition.
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SUPREME COURT REPORTS
[1980] 2 s.c.R.
The prisoner Prem Chand was shifted accordingly by Shri
Bachan Singh, Assistant Superintendent on duty on 27-8-79.
TI1e undersigned was informed that a case u/s 385 IPC
had been registered against warder Maggar Singh in-charge
of the ward No. 11 i.e. 40 cells with the police station Janak·
puri and investigation had started in this case. The result of
the investigation is still awaited. The prisone~ was, however,
received back in the jail on 29-8-79 Qn being discharged
from the Irwin Hospital.
The prisoner, Prem Chand, was kept in a 'punishment cell' which,
according to counsel for the Administration, was not as bad as a solitary cell, although Dr. Chitale says that this was similar to the type of
insulated confinement condemned as unconstitutional by this Court in
Sunil Batra's case (supra). Coming to the competing version put forward by the prison officials through the counter-affidavit of the Under
Secretary, the story, even if true, is strongly suggestive of a mafia-culture
prevasive illl the Tihar prison. A background of the ethos of the campus
may be gleaned from portions of the report of the Superintendent,
Central Jail, Tihar, made by him with reference t~ the alleged torture
which is the subject matter of this case.
A number of prisoners in the Tillar Jail are habitual
offenders, professional criminals who have been inmates of
the jail from time to time. A number of the said prisoners
are rarely visited by their relatives due to the fact that they
. do not want to associate with such persons. I~ has been seen
that such prisone.rs are mainly visited by other professionals
or habitual offenders in the field with whom they have had
former associations. . . . It has been noticed these types of
prisoners have been able to develop a certain raport with some
of the lower staff in the jail namely Head Warders, Warders
etc. and obtain certain facilities illegally including smuggling
of numbers of items, i.e. drugs etc. for their use. It may also
be submitted that to check smuggling of narcotic( drugs
against prisoners who indulge in such activities 30 cases of
narcotic offences were got registered against the prisoners
with the Janakpuri Police Station during this year .... That
95 prisoners were transferred from the jail to Haryana due to
administrative reasons which include indiscipline and violation
of jail regulations by them and otherwise derogatory behaviour
during the last year. . . . . . This year also about 22 cases
have
been recqmmended by
Superintendent,
Jail
for
transfer . . . . In para 5 68 (b) and the note thereunder of the
,.
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. SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !.) 569
Jail Manuai the habituals are required to be kept separate
from the casual prisoners but due to non-availability 'of any
other jail in Delhi they are being kept in Tihar Jail, which
requires a lot ofj vigilance on the part of the jail officers. (b)
It may also be mentioned that due to paucity of accommodation, the said jail is occupied by double the
number of
prisoners than it is otherwise authorised.
To aggravate the malady, we have tQe fact that a substantial number
of the prisoners am under-trials who have to face, their case in court
j
and are presumably innocent until convicted. By being sent to Tihar
A
B
Jail they are, by contamination, made criminals-a custodial perversity
which violates the test of reasonableness in Art. 19 and of fairness in
C
Art. 21. How cruel would it be if one went to a hospital for a check-
' up .and by being kept along with contagious cases came home with a
new disease ! We sound the tocsin that prison reform is now a constitutional compulsion and its neglect may lead to drastic court action.
It would appear that around 300 persons are taken in and out
D
daily between the prison and the courts. And when there are political
agitations. and consequent police arrests and remand to custody, the
under-trial strength swells in numbers. Since many Qfficers busy themselves with production· of p.risoners in court, the case of the Superintendent is that the. other. prisoners "try to .do mischief, make thefts of
other prisonets who go on work, smuggle things and everz resort to
E
assaults."
To sum up, the Tihar prison is an arena of tension ,trauma, tantrums .and crimes of .violence, vulgarity and ccrruption. And to cap it all,
there occurs the contamination of pre-trial accused with habituals and
"injurious prisoners of international gang." The crowning piece is that
p
the jail officials themselves are allegedly in league with the criminals
in thei cells. That is, there is a large network of criminals, officials and
non-officials in the house of . correction ! Drug racket, alcoholism,
smuggling. violence, theft, unconstitutional punishment by
way
of
solitary cellular life and transfers to other jai~·are not uncommoo. The
Administration, if it does not immediately have the horrendous sitU;t-,
G
lion examined by an impartiJil, authoritative body, and sanitize the
campus, complacent affidavits of Under Secretaries
and
glittering
entries from dignitaries on their casual visits, cannot help.
'
While the Establishment sought to produce before the Court
extracts from the Visitors' Book to show that many impartial and dis-,
H
tinguished persons had complimented the jail authorities on the way
managed the prison, Dr. Chitale placed before us some internal evidence
15-21SCI/80.
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SUPREME COURT REPORTS
[1980] 2 S.C.R.
from the materials on record, supplemented strongly by personal observations recorded while he was an internee in this very prison by Sbri
Kuldip Nayar, a responsible journalist with nil apparent motive for
mendacity nor inclination for subjectivity, in bis book "In Jail".
There
was nothing in the author's view which money could not buy within
the recesses of the prison campus. Giving a factual narrative, Shri Nayar
wrote: .... -..
' ...... one could get as much money as one wanted from
outside-again, at a price. The.re was, a money order and mail
service that perhaps was more dependable than what the postal
department c~uld offer.
For instance, when a prisoner in my ward wanted two
hundred rupees, he sent a note through a warder to his people
in Old Delhi and in less than twenty-four hours he had
the money. He paid sixty-six· rupees as collecting chargesthirty-three per cent was the
prescribed
"money
order
charge." ...... Dharma Teja, the shipping magnate who
served his sentence in Tihar, for instance, had thousands of
rupees delivered to him, we were told. And if one could pay
the jail functionaries one could have all the comforts one
sought. Teja bad all the comforts-he had an air cooler in his
cell a radio-cum-record player set and even the facility of
using the phone. . . . Haridas Mundhra, a businessman who
was convicte.d of fraud, was ano~er rich man who spent some
time in tihar. Not only did he have' all the facilities, but be
could also go out of the jail whenever he liked; at times
he would be out for several days and travel even upto
Calcutta.
All this of course, cost a lot of money.
An even
richer prisoner was Ram Kishan Dalmia; he spent most of bis
jail terrn in hospital. He was known for his generosity to jail
authorities, and one doctor received a car as a gift.
But more than businessmen it was the smugglers jailed in Tihar
who were lavish spenders. Their food came from Moti Mahal and
their whisky from Connaught Place. They had not only wine but also
women.
"Babuji, not tarts but real society girls," one warder said.
The women would be brought in when "the Sahiblog" went home for
lunch, and their empty offices became "recreation rooms."
Corruption in jail was so well organised and so systematic that
everything went like clockwork once the price had been paid.
Jail
employees at almost all levels were involved, and everyone's share was
fixed.
There was never a dispute; there has to be the proverbial
honour among thieves.'
SUNIL BATRA v. DELHI ADMINISTRATION (Krishna Iyer, !.) 5 71
One wonders whether such an indictment made by an established
A
-writer had inclined the Government at least to appoint an
Inquiry
Commission to acquaint itself with the criminal life-style of correctional institutinns.
The higher officials also have their finger in the
pie, if Nayar were veracious:
'Perhaps the way almost everyone had his cut was most
evident in our milk supply. It came in bulk to the main
gate (phatak) there, enough milk for the top officials was
taken out of the cans, which were then topped up with water.
And as the cans moved to the wards, all those who handled
them appropriated their share,,again topping np with water.
B.
Even more
shocking than the corruption
was the
ingenious "slave system" we found in the jail. The slaves
were boys between ten and eighteen employed as 'helpers",
and there were scores of them.
They cooked, washed utensils, cleaned rooms,
fetched water and did much
backbreakinE lab.our to "help" the men who were paid to do
these chores. They would be woken up before 6 a.m.