RE-INHUMAN CONDITIONS IN 1382 PRISONS VS Vs.
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 406 of 2013, Judgment Date: Feb 05, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.406/2013
RE - INHUMAN CONDITIONS IN 1382 PRISONS
O R D E R
Madan B. Lokur, J.
1. Prison reforms have been the subject matter of discussion and decisions
rendered by this Court from time to time over the last 35 years.
Unfortunately, even though Article 21 of the Constitution requires a life
of dignity for all persons, little appears to have changed on the ground as
far as prisoners are concerned and we are once again required to deal with
issues relating to prisons in the country and their reform.
2. As far back as in 1980, this Court had occasion to deal with the
rights of prisoners in Sunil Batra (II) v. Delhi Administration.[1] In
that decision, this Court gave a very obvious answer to the question
whether prisoners are persons and whether they are entitled to fundamental
rights while in custody, although there may be a shrinkage in the
fundamental rights. This is what this Court had to say in this regard:
“Are prisoners persons? Yes, of course. To answer in the negative is to
convict the nation and the Constitution of dehumanization and to repudiate
the world legal order, which now recognises rights of prisoners in the
International Covenant on Prisoners’ Rights to which our country has signed
assent. In Batra case,[2] this Court has rejected the hands-off doctrine
and it has been ruled that fundamental rights do not flee the person as he
enters the prison although they may suffer shrinkage necessitated by
incarceration.
3. A little later in the aforesaid decision, this Court pointed out the
double handicap that prisoners face; the first being that most prisoners
belong to the weaker sections of society and the second being that since
they are confined in a walled-off world their voices are inaudible. This is
what this Court had to say in this regard:
“Prisoners are peculiarly and doubly handicapped. For one thing, most
prisoners belong to the weaker segment, in poverty, literacy, social
station and the like. Secondly, the prison house is a walled-off world
which is incommunicado for the human world, with the result that the bonded
inmates are invisible, their voices inaudible, their injustices unheeded.
So it is imperative, as implicit in Article 21, that life or liberty, shall
not be kept in suspended animation or congealed into animal existence
without the freshening flow of fair procedure.”
4. In Rama Murthy v. State of Karnataka[3] this Court identified as
many as nine issues facing prisons and needing reforms. They are:
(i) over-crowding;
(ii) Delay in trial;
(iii) Torture and ill-treatment;
(iv) Neglect of health and hygiene;
(v) Insubstantial food and inadequate clothing;
(vi) Prison vices;
(vii) Deficiency in communication;
(viii) Streamlining of jail visits;
(ix) Management of open air prisons.
This Court expressed the view that these major problems need immediate
attention. Unfortunately, we are still struggling with a resolution of at
least some of these problems.
5. In T. K. Gopal v. State of Karnataka[4] this Court advocated a
therapeutic approach in dealing with the criminal tendencies of prisoners.
It was pointed out that there could be several factors that lead a prisoner
to commit a crime but nevertheless a prisoner is required to be treated as
a human being entitled to all the basic human rights, human dignity and
human sympathy. It was pointed out that it is this philosophy that has
persuaded this Court in a series of decisions to project the need for
prison reforms. This is what this Court had to say:
“The therapeutic approach aims at curing the criminal tendencies which were
the product of a diseased psychology. There may be many factors, including
family problems. We are not concerned with those factors as therapeutic
approach has since been treated as an effective method of punishment which
not only satisfies the requirements of law that a criminal should be
punished and the punishment prescribed must be meted out to him, but also
reforms the criminal through various processes, the most fundamental of
which is that in spite of having committed a crime, maybe a heinous crime,
he should be treated as a human being entitled to all the basic human
rights, human dignity and human sympathy. It was under this theory that
this Court in a stream of decisions, projected the need for prison reforms,
the need to acknowledge the vital fact that the prisoner, after being
lodged in jail, does not lose his fundamental rights or basic human rights
and that he must be treated with compassion and sympathy.”
6. In this background, a letter on 13th June, 2013 addressed by Justice
R.C. Lahoti, a former Chief Justice of India to Hon’ble the Chief Justice
of India relating to conditions in prisons is rather disturbing. Justice
R.C. Lahoti invited attention to the inhuman conditions prevailing in 1382
prisons in India as reflected in a Graphic Story appearing in Dainik
Bhaskar (National Edition) on 24th March, 2013. A photocopy of the Graphic
Story was attached to the letter.
Justice R.C. Lahoti pointed out that the story highlights:
Overcrowding of prisons;
Unnatural death of prisoners;
Gross inadequacy of staff and
Available staff being untrained or inadequately trained.
7. Justice R.C. Lahoti also pointed out that the State cannot disown
its liability to the life and safety of a prisoner once in custody and that
there were hardly any schemes for reformation for first time offenders and
prisoners in their youth and to save them from coming into contact with
hardened prisoners.
8. Justice R.C. Lahoti ended the letter by submitting that the Graphic
Story raised an issue that needed to be taken note of and dealt with in
public interest by this Court and that he was inviting the attention of
this Court in his capacity as a citizen of the country. We may say that
Justice R.C. Lahoti has brought an important issue to the forefront,
dispelling the view:
“Judges rarely express concern for the inhumane treatment that the person
being sentenced is likely to face from fellow prisoners and prison
officials, or that time in prison provides poor preparation for a
productive life afterwards. Courts rarely consider tragic personal pasts
that may be partly responsible for criminal behavior, or how the
communities and families of a defendant will suffer during and long after
his imprisonment.”[5]
9. By an order dated 5th July, 2013 the letter was registered as a
public interest writ petition and the Registry of this Court was directed
to take steps to issue notice to the appropriate authorities after
obtaining a list from the office of the learned Attorney General.
10. In reply to the notice issued by this Court, several States and
Union Territories gave their response either in the form of communications
addressed to the Registry of this Court or in the form of affidavits. It is
not necessary for us to detail each of the responses. Suffice it to say
that on the four issues raised by Justice R.C. Lahoti there is general
consensus that the prisons (both Central and District) are over-crowded,
some unnatural deaths have taken place in some prisons, there is generally
a shortage of staff and it is not as if all of them are adequately and
suitably trained to handle issues relating to the management of prisons and
prisoners and finally that steps have been taken for the reformation and
rehabilitation of prisoners. However, a closer scrutiny of the responses
received indicates that by and large the steps taken are facile and lack
adequate sincerity in implementation.
11. In view of the above, the Social Justice Bench of this Court passed
an order on 13th March, 2015 requiring the Union of India to furnish
certain information primarily relating to the more serious issue of over-
crowding in prisons and improving the living conditions of prisoners. The
order passed by the Social Justice Bench on 13th March, 2015 reads as
follows:-
“We have heard learned Additional Solicitor General and would like
information on the following issues:
The utilization of the grant of Rs.609 crores under the 13th Finance
Commission for the improvement of conditions in prisons.
The grant to the States in respect of the prisons under the 14th Finance
Commission.
Steps taken and being taken by the Central Government as well as by the
State Governments for effective implementation of Section 436A of the Code
of Criminal Procedure, 1973.
Steps taken and being taken by the Central Government and the State
Governments for effective implementation of the Explanation to Section 436
of the Code of Criminal Procedure, 1973 and the number of persons in
custody due to their inability to provide adequate security/surety for
their release on bail.
The number of persons in custody who have committed compoundable offences
and are languishing in custody.
Steps taken for the effective implementation of the Repatriation of
Prisoners Act, 2003.
We expect all the State Governments to fully cooperate with the Central
Government in this regard since the matter involves Article 21 of the
Constitution and to furnish necessary information within three weeks.
List the matter on 24th April, 2015.”
12. In compliance with the aforesaid order, the Union of India through
the Ministry of Home Affairs filed a detailed affidavit dated 23rd April,
2015. It was stated in the affidavit that all States and Union Territories
were asked to provide the information as required by this Court but in
spite of reminders and meetings, the information had not been received from
the State of Uttarakhand and the Union Territories of Dadra & Nagar Haveli,
Daman & Diu and Lakshadweep.
13. It was stated that one of the problems faced in aggregating the
information that had been received was that management information systems
were not in place in a comprehensive manner. To remedy this situation an e-
prisons application was being designed so that all essential data could be
centrally aggregated. It was stated in the affidavit that a draft project
report was being prepared through a project management consultancy so that
an e-prisons application could be rolled out with integrated information in
all States and Union Territories comprehensively for better monitoring of
the status of prisoners, particularly undertrial prisoners.
14. In response to the first issue, it was pointed out in the affidavit
in the form of a tabular statement that funds were made available under the
13th Finance Commission for the improvement of conditions in prisons in
respect of several States. We are surprised that no grant was allotted in
as many as 19 States and in the States where grants were allotted, the
utilization was less than 100%, except in the State of Tripura.
15. With regard to the grant under the 14th Finance Commission, it was
stated that the 14th Finance Commission had reported that the States have
the appropriate fiscal space to provide for the additional expenditure
needs as per their requirements. The 14th Finance Commission did not make
any specific fund allocation in favour of the Central Government but the
States had projected their demands individually and the tabular statement
in that regard is annexed to the affidavit. As far as the Union
Territories are concerned, apart from Delhi and Puducherry none of the
Union Territories had projected any demand.
16. With regard to the third issue regarding effective implementation of
Section 436A of the Code of Criminal Procedure, (for short the Cr.P.C.),
the affidavit stated that an advisory had been issued by the Ministry of
Home Affairs of the Government of India on 17th January, 2013 to all the
States and Union Territories to implement the provisions of Section 436A of
the Cr.P.C. to reduce overcrowding in prisons. Among the measures
suggested in this regard by the Ministry of Home Affairs was the
constitution of a Review Committee in every district with the District
Judge in the Chair with the District Magistrate and the Superintendent of
Police as Members to meet every three months and review the cases of
undertrial prisoners. The Jail Superintendents were also required to
conduct a survey of all cases where undertrial prisoners have completed
more than one fourth of the maximum sentence and send a report in this
regard to the District Legal Services Committee constituted under The Legal
Services Authorities Act, 1987 as well as to the Review Committee. It was
also suggested that the prison authorities should educate undertrials of
their right to bail and the District Legal Services Committee should
provide legal aid through empanelled lawyers to the undertrial prisoners
for their release on bail or for the reduction of the bail amount. The
Home Department of the States was also requested to develop a management
information system to ascertain the jail-wise progress in this regard.
17. The aforesaid advisory dated 17th January, 2013 was followed up
through a letter of the Union Home Minister to the Chief
Ministers/Lieutenant Governors on 3rd September, 2014. It was pointed out
in the letter that as per the statistics provided by the National Crime
Records Bureau (NCRB) as on 31st December, 2013 the number of undertrial
prisoners was 67.6% of the entire prison population and that the percentage
was unacceptably high. In this context it was suggested that the
provisions of Section 436 of the Cr.P.C. as well as Section 436A of the
Cr.P.C. had to be made use of. It was also suggested that steps be taken
to utilize the provisions of plea bargaining, the establishment of fast
track courts, holding of Lok Adalats and ensuring adequate means for the
production of the accused before the Court directly or through video
conferencing.
18. Yet another letter was sent to the Director General of Prisons of
all States/Union Territories on 22nd September, 2014 by the Ministry of
Home Affairs drawing attention to the directions of this Court in Bhim
Singh v. Union of India dated 5th September, 2014[6] relating to Section
436A of the Cr.P.C. and to take necessary steps to comply with the orders
passed by this Court.
19. In a similar vein, yet another advisory was issued by the Government
of India on 27th September, 2014. It was averred in the affidavit that as a
result of these advisories and communications, some undertrial prisoners
have been released in implementation of the provisions of Section 436A of
the Cr.P.C.
20. With regard to the fourth issue concerning the effective
implementation of Section 436 of the Cr.P.C., the affidavit stated that an
advisory was issued way back on 9th May, 2011 in which it was pointed out,
inter alia, that prison overcrowding compels prisoners to be kept under
conditions that are unacceptable in light of the United Nations Standard
Minimum Rules for Treatment of Offenders to which India is the signatory.
It was pointed that as per the statistics prepared by the NCRB as on 31st
December, 2008 prisons in India are overcrowded to the extent of 129%. The
advisory highlighted some measures taken by some of the States to reduce
the number of undertrial prisoners, including their release under the
provisions of the Probation of Offenders Act, 1958 and encouraging NGOs in
association with District Legal Services Committees to arrange legal aid
for unrepresented undertrial prisoners as well as to implement the
guidelines issued by the Bombay High Court in Rajendra Bidkar v. State of
Maharashtra, CWP No. 386 of 2004 (unreported decision).
21. With regard to the fifth issue relating to the number of persons who
have been languishing in jails in compoundable offences, a chart was
annexed to the affidavit which indicated, by and large, that quite a few
States had taken no effective steps in this regard particularly Andhra
Pradesh, Assam, Chhattisgarh, Haryana, Kerala, Mizoram, Nagaland, Odisha,
Punjab, Rajasthan, Telangana, Tripura and Uttar Pradesh. The reason why
many undertrial prisoners had not been released was their inability to
provide security and surety for their release. The steps taken to have
these prisoners released from custody were not indicated in the affidavit.
22. With regard to the effective implementation of the Repatriation of
Prisoners Act, 2003 it was stated that agreements on transfer of sentenced
persons have been bilaterally signed with 25 countries but the agreements
are operational after ratification by both sides only with respect to 18
countries. In addition, transfer arrangements have been made with 19
countries under the Inter-American Convention on Serving Criminal Sentences
Abroad thereby making the total number of countries with which transfer
arrangements have been made for prisoners to 37 countries.
23. Keeping in view the affidavit dated 23rd April, 2015 filed by the
Ministry of Home Affairs and the somewhat lukewarm response of the States
and Union Territories, the Social Justice Bench passed the following
directions on 24th April, 2015:
“We have perused the affidavit filed by the Ministry of Home Affairs on
23rd April, 2015 and have heard learned counsel.
The admitted position is 67% of all the prisoners in jails are under trial
prisoners. This is an extremely high percentage and the number of such
prisoners is said to be about 2,78,000 as on 31st December, 2013.
Keeping this in mind and the various suggestions that have been made in the
affidavit, we are of the view that the following directions need to be
issued:
A Prisoners Management System (a sort of Management Information System) has
been in use in Tihar Jail for quite some time, as stated in the affidavit.
The Ministry of Home Affairs should carefully study this application
software and get back to us on the next date of hearing with any
suggestions or modifications in this regard, so that the software can be
improved and then deployed in other jails all over the country, if
necessary.
We would like the assistance of the National Legal Services Authority
(NALSA) in this matter of crucial importance concerning prisoners in the
country. We direct the Member Secretary of NALSA to appoint a senior
judicial officer as the nodal officer to assist us and deal with the issues
that have arisen in this case.
For the purpose of implementation of Section 436A of the Code of Criminal
Procedure, 1973 (for short “the Code”), the Ministry of Home Affairs has
issued an Advisory on 17th January, 2013. One of the requirements of the
Advisory is that an Under Trial Review Committee should be set up in every
district. The composition of the Under Trial Review Committee is the
District Judge, as Chairperson, the District Magistrate and the District
Superintendent of Police as members.
The Member Secretary of NALSA will, in coordination with the State Legal
Services Authority and the Ministry of Home Affairs, urgently ensure that
such an Under Trial Review Committee is established in every District,
within one month. The next meeting of each such Committee should be held on
or about 30th June, 2015.
4. In the meeting to be held on or about 30th June, 2015, the Under
Trial Review Committee should consider the cases of all under trial
prisoners who are entitled to the benefit of Section 436A of the Code. The
Ministry of Home Affairs has indicated that in case of multiple offences
having different periods of incarceration, a prisoner should be released
after half the period of incarceration is undergone for the offence with
the greater punishment. In our opinion, while this may be the requirement
of Section 436A of the Code, it will be appropriate if in a case of
multiple offences, a review is conducted after half the sentence of the
lesser offence is completed by the under trial prisoner. It is not
necessary or compulsory that an under trial prisoner must remain in custody
for at least half the period of his maximum sentence only because the trial
has not been completed in time.
5. The Bureau of Police Research and Development had circulated a Model
Prison Manual in 2003, as stated in the affidavit. About 12 years have gone
by and since then there has been a huge change in circumstances and
availability of technology. We direct the Ministry of Home Affairs to
ensure that the Bureau of Police Research and Development undertakes a
review of the Model Prison Manual within a period of three months. We are
told that a review has already commenced. We expect it to be completed
within three months.
6. The Member Secretary of NALSA should issue directions to the State Legal
Services Authorities to urgently take up cases of prisoners who are unable
to furnish bail and are still in custody for that reason. From the figures
that have been annexed to the affidavit filed by the Ministry, we find that
there are a large number of such prisoners who are continuing in custody
only because of their poverty. This is certainly not the spirit of the law
and poverty cannot be a ground for incarcerating a person. As per the
figures provided by the Ministry of Home Affairs, in the State of Uttar
Pradesh, there are as many as 530 such persons. The State Legal Services
Authorities should instruct the panel lawyers to urgently meet such
prisoners, discuss the case with them and move appropriate applications
before the appropriate court for release of such persons unless they are
required in custody for some other purposes.
7. There are a large number of compoundable offences for which persons are
in custody. No attempt seems to have been made to compound those offences
and instead the alleged offender has been incarcerated. The State Legal
Services Authorities are directed, through the Member Secretary of NALSA to
urgently take up the issue with the panel lawyers so that wherever the
offences can be compounded, immediate steps should be taken and wherever
the offences cannot be compounded, efforts should be made to expedite the
disposal of those cases or at least efforts should be made to have the
persons in custody released therefrom at the earliest.
A copy of this order be given immediately to the Member Secretary,
NALSA for compliance.
List the matter on 7th August, 2015 for further directions and updating the
progress made.
For the present, the presence of learned counsel for the States and Union
Territories is not necessary. Accordingly, their presence is dispensed
with.”
24. The order dated 24th April, 2015 made a pointed reference to the
extremely high percentage of undertrial prisoners and the total number of
prisoners as on 31st December, 2013.
25. Reference was also made to the fact that the Bureau of Police
Research and Development had circulated a Model Prison Manual in 2003 but
since about 12 years had gone by, the Ministry of Home Affairs was directed
to ensure that the Bureau of Police Research and Development undertakes a
review of the Model Prison Manual within a period of three months.
26. Directions were also issued for the assistance of the National Legal
Services Authority (NALSA) to assist the Social Justice Bench and deal with
the issues that had arisen in the case.
27. A direction was also issued to ensure that the Under Trial Review
Committee is established within one month in all districts and the next
meeting of that Committee in each district should be held on or about 30th
June, 2015. NALSA was required to take up the issue of undertrial
prisoners particularly in the State of Uttar Pradesh where as many as 530
persons were in custody only because of their poverty.
28. Pursuant to the aforesaid order and directions, NALSA filed a
compliance report on 4th August, 2015 in which it was stated that steps
have been taken to ensure that Under Trial Review Committees are set up in
every district and the State Legal Services Authorities had also been asked
to take up the cases of prisoners who were unable to furnish bail bonds and
to move appropriate applications on their behalf.
29. The compliance report stated that with regard to the Prisoners
Management System, the Ministry of Home Affairs had already appointed a
project management consultant to prepare a detailed project report for the
e-Prisons project. It was stated that there were four prison software
applications that had been developed by (i) National Informatics Centre
(ii) Goa Electronic Ltd. (iii) Gujarat Government through TCS and (iv)
Phoenix for Prison Management System in Haryana. The various applications
would be evaluated and discussed in a conference of the Director General
(Prisons)/Inspector General (Prisons) to be held on 20th August, 2015.
30. The compliance report also indicated a break-up of the meetings of
the Under Trial Review Committees that had been set up in the various
States and that reports of the meeting that were directed to be held on or
about 30th June, 2015 were still awaited from a few States and Union
Territories.
31. As regards the Model Prison Manual it was submitted that a draft had
been prepared and was circulated for comments and a further meeting was
scheduled to be held in August, 2015 to finalize the draft.
32. With regard to the cases of undertrial prisoners who were unable to
furnish bail bonds it was stated that as many as 3470 such persons were in
custody due to their inability to furnish bail bonds and a maximum number
of such undertrial prisoners were in the State of Maharashtra, that is, 797
undertrial prisoners. It was stated that as many as 3278 undertrial
prisoners were those who were involved in compoundable offences and efforts
were being made to expedite the disposal of their cases.
33. Keeping in view the compliance report as well as some of the gaps
that appeared necessary to be filled up, the Social Justice Bench passed an
order dated 7th August, 2015 requiring, inter alia, the Under Trial Review
Committee to include the Secretary of the District Legal Services Committee
as one of the members of the Review Committee. The Ministry of Home
Affairs was directed to issue an appropriate order in this regard.
34. With regard to the Model Prison Manual, it was suggested to the
learned Additional Solicitor General appearing on behalf of the Union of
India that the composition of the Committee looking into the Model Prison
Manual should be a multi-disciplinary body involving members from civil
society and NGOs as well as other experts. It was also directed that the
Model Prison Manual should look into providing a crèche for the children of
prisoners.
35. With regard to the large number of undertrial prisoners in the State
of Maharashtra, it was directed that the matter should be reviewed and an
adequate number of legal aid lawyers may be appointed so that necessary
steps could be taken with regard to the release of undertrial prisoners in
accordance with law, particularly those who had been granted bail but were
unable to furnish the bail bond due to their poverty.
The order dated 7th August, 2015 reads as follows:-
“We have gone through the compliance report filed on behalf of NALSA and we
appreciate the work done by NALSA within the time frame prescribed.
We find from the report that the Under Trial Review Committees have been
established in large number of districts but they have not been established
in all the districts across the country. Mr. Rajesh Kumar Goel, Director,
NALSA - the nodal officer will look into the matter and ensure that,
wherever necessary, the Under Trial Review Committee should be established
and should meet regularly.
We are told that the Under Trial Review Committee consists of the District
Judge, the Superintendent of Police and the District Magistrate. Since the
issues pertaining to under trial prisoners are also of great concern of the
District Legal Services Authorities, we direct that the Under Trial Review
committee should also have the Secretary of the District Legal Services
Authority as one of the members of the Committee. The Ministry of Home
Affairs will issue a necessary order in this regard to the Superintendent
of Police to associate the Secretary of the District Legal Services
Authority in such meetings.
It is stated that so far as a software for the prisoners is concerned, the
Ministry of Home Affairs has appointed a Project Management Consultant and
at present there are four kinds of software in existence in the country
with regard to prison management. It is stated that a meeting will be held
on 20th August, 2015 with the Director General (Prisons)/Inspector General
(Prisons) to evaluate the existing application software.
We expect an early decision in the matter and early implementation of the
decision that is taken.
It is stated that a Model Prison Manual is being looked into since the
earlier Manual was of considerable vintage. We are told that a meeting is
likely to be held towards the end of this month to finalize the Model
Prison Manual.
Learned ASG is unable to inform us about the composition of the Committee
that is looking into the Model Prison Manual. We have suggested to him (and
this suggestion has been accepted) that a multi-disciplinary body including
members from Civil Society, NGOs concerned with under trial prisoners as
also experts from some other disciplines, including academia and whose
assistance would be necessary, should also be associated in drafting the
comprehensive Model Prison Manual.
To the extent possible, the Model Prison Manual should be finalized at the
earliest and preferably within a month or two, but after having extensive
and intensive consultations with a multi-disciplinary body as above.
In the Model Prison Manual, the Ministry of Home Affairs should also look
into the possibility of having a creche for the children of prisoners,
particularly women prisoners as it exists in Tihar Jail.
We find that the number of under trial prisoners in the State of
Maharashtra is extremely large and we also think that there are not
adequate number of legal aid lawyers to look into the grievances of under
trial prisoner. Mr. Rajesh Kumar Goel, Director, NALSA says on behalf of
NALSA that necessary steps will be taken to appoint adequate number of
legal aid lawyers so that necessary steps can be taken with regard to the
release of under trial prisoners in accordance with law including those who
have been granted bail but are unable to furnish the bail bond.
List the matter on 18th September, 2015.”
36. When the matter was taken up by the Social Justice Bench on 18th
September, 2015, Mr. Gaurav Agrawal, Advocate was appointed as Amicus
Curiae to assist the Social Justice Bench.
37. On that date, the learned Additional Solicitor General informed the
Social Justice Bench that the Ministry of Home Affairs had duly written to
the Directors General of all the States and Union Territories to ensure
that the Secretary of the District Legal Services Committee is included as
a member in the Under Trial Review Committee. The learned Additional
Solicitor General also informed that the Model Prison Manual was likely to
be made available sometime in the middle of December, 2015.
38. It was pointed out on behalf of NALSA by Mr. Rajesh Kumar Goel that
some clarity was required with respect to paragraph 4 of the order dated
24th April, 2015. In view of this request, it was clarified that there is
no mandate that a person who has completed half the period of sentence, in
the case of multiple offences, should be released. This was entirely for
the Under Trial Review Committee to decide and there was no direction given
for release in this regard.
39. With regard to the large number of undertrial prisoners in
Maharashtra who were entitled to bail, it was submitted that out of 797
such undertrial prisoners nearly 503 had been released and that steps were
being taken with regard to the remaining undertrial prisoners.
40. The order passed by the Social Justice Bench on 18th September, 2015
reads as follows:-
“This petition pertains to what has been described as inhuman conditions in
1382 prisons across the country.
On our request, Mr. Gaurav Agrawal, Advocate has agreed to assist us in the
matter as Amicus Curiae since the complaint was received by Post. The
Registry should give a copy each of all the documents in this matter to Mr.
Gaurav Agrawal.
Learned Additional Solicitor General has drawn our attention to the order
dated 7th August, 2015 and in compliance thereof he has stated that the
Ministry of Home Affairs has written to the Directors General of all the
States/Union Territories on 14th August, 2015 to ensure that the Secretary
of the District Legal Services Committee is included as a member in the
Under Trial Review Committee. A similar letter was written by NALSA on 11th
August, 2015. NALSA should follow up on this and ensure that it is
effectively represented in the Under Trial Review Committee.
It is not yet clear whether the Under Trial Review Committee has been set
up in every District. Learned Additional Solicitor General and Mr. Rajesh
Kumar Goel, Director, NALSA will look into this and let us know the
progress on the next date of hearing.
As far as the software for Prison Management is concerned, it is stated by
the learned Additional Solicitor General that all the Directors General of
Police have been asked to intimate which of the four available software is
acceptable to them. He further states that the software will be integrated
on the cloud so that all information can be made available regardless of
which software is being utilized. He expects the needful to be done within
a period of about two months.
We expect the Directors General of Police in every State/Union Territory to
respond expeditiously to any request made by the Ministry of Home Affairs
in this regard.
With regard to the Model Prison Manual of 2003, it is stated by the learned
Additional Solicitor General that meetings have been held in this regard
and it is expected that the Model Prison Manual will be made available by
sometime in the middle of December, 2015. He states that people from
academia as well as NGOs are associated in the project. It is expected that
the Prison Manual will also take care of establishing a creche in respect
of women prisoners who have children.
With regard to the release of under trial prisoners, particularly in the
States of Uttar Pradesh and Maharashtra, as mentioned in our order dated
24th April, 2015, learned Additional Solicitor General says that at the
present moment he does not have any instructions in this regard, but the
Ministry of Home Affairs will write to the State Governments/Union
Territories to take urgent steps in terms of our orders.
Mr. Rajesh Kumar Goel, Director, NALSA says that legal aid lawyers have
been instructed to take steps for the possible release of under trial
prisoners in accordance with law.
Mr. Rajesh Kumar Goel has also drawn our attention to paragraph 4 of the
order dated 24th April, 2015. We make it clear that there is no mandate
that a person who has completed half the period of his sentence, in the
case of multiple offences, should be released. This is entirely for the
Under Trial Review Committee and the competent authority to decide and
there is absolutely no direction given by this Court for release of such
under trials. Their case will have to be considered by the Under Trial
Review Committee and the competent authority in accordance with law.
Mr. Rajesh Kumar Goel, Director, NALSA says that steps are being taken to
appoint an adequate number of panel lawyers.
With reference to the release of under trial prisoners, he says that in the
State of Maharashtra, as per the information available, 797 under trial
prisoners were entitled to bail and with the efforts of the State Legal
Services Authority, nearly 503 have since been released. Steps are being
taken with regard to the remaining under trial prisoners.
Mr. Rajesh Kumar Goel, Director, NALSA says that the Member Secretaries of
the State Legal Services Authority will be advised to compile relevant
information with regard to the cases of compoundable offences pending in
the States so that they can also be disposed of at the earliest. We expect
the States of Uttar Pradesh and Maharashtra to expeditiously respond to the
letter written by NALSA since the maximum number of cases pertaining to
compoundable offences are pending in these States.
List the matter on 16th October, 2015.”
41. Pursuant to the aforesaid order, NALSA filed another compliance
report dated 14th October, 2015 in which it was stated that an Under Trial
Review Committee had been set up in every district. However, the annexure
to the compliance report indicated that no information was available from
the State of Jammu & Kashmir and in some States particularly Gujarat and
Uttar Pradesh and the Union Territory of Andaman & Nicobar Islands, the
Secretary of the District Legal Services Committee was not made a member of
the Review Committee.
42. It was also stated that the State Legal Services Authority had been
requested to appoint an adequate number of panel lawyers and to instruct
them to take steps for the early release of undertrial prisoners.
43. When the matter was taken up on 16th October, 2015 the Social
Justice Bench expressed its distress that only three States had responded
to the information sought by the Ministry of Home Affairs with regard to
holding the quarterly meeting of the Under Trial Review Committee on or
before 30th September, 2015. Learned counsel appearing for the Union of
India stated that the matter would be taken up with all the State
Governments with due seriousness and it would be ensured that such meetings
are held regularly. It was also stated that the latest status report would
be filed in the second week of January, 2016.
44. Learned amicus curiae informed the Social Justice Bench that the
Under Trial Review Committee had been set up in every district and a
representative of the District Legal Services Committee was included in the
said Committee.
The order dated 16th October, 2015 reads as follows:-
“It is very disconcerting to hear from learned counsel for the Union of
India that there is no information available except from three States with
regard to the release of under trial prisoners.
A meeting of the Under Trial Review Committee was supposed to be held on or
before 30th September, 2015, but only three States have responded to the
information sought by the Ministry of Home Affairs, Government of India.
Learned counsel for the Union of India says that the matter will now be
taken up very seriously with all the State Governments and the Union
Territories and it will be ensured that the meetings are regularly held in
terms of the Advisories given by the Ministry of Home Affairs at least once
in every three months.
Learned counsel for the Union of India also says that the latest status
report will be filed in the second week of January, 2016.
In the meanwhile, learned amicus curiae informs us that the Under Trial
Review Committee has been set up in every District and a representative of
the District Legal Services Authority has been included in all the Under
Trial Review Committees and, therefore, to this extent the order dated 18th
September, 2015 has been complied with.
List the matter on 29th January, 2016. We make it clear that learned
counsel for the Union of India should be fully briefed in all aspects of
the case.”
45. In compliance with the order passed on 16th October, 2015 an
affidavit dated 22nd January, 2016 was filed by the Ministry of Home
Affairs in which it was stated that a detailed evaluation of the software
for the e-Prisons Project had been completed and guidelines had also been
circulated to all the States for their proposals and for exercising their
option for selecting the appropriate software.
46. It was stated in the affidavit that a provision for funds had been
made for the application software from the Crime and Criminal Tracking
Network & System (CCTNS) project and an amount of Rs.227.01 crores had been
approved for the implementation of the e-Prisons Project. It was stated
that the e-Prisons proposals had been received from seven States and other
States/Union Territories had been asked to expedite their proposal for
evaluation by the Ministry of Home Affairs.
47. With regard to the Model Prison Manual, it was stated that the
revised Model Prison Manual had been approved by the competent authority
and it was circulated to all States and Union Territories. The revised
manual also included a provision for a suitable crèche for the children of
women inmates in the prison.
48. With regard to the quarterly meetings of the Under Trial Review
Committee, the affidavit disclosed the dates on which such Committees had
met but on a perusal of the chart annexed to the affidavit there is a clear
indication that not every such Committee met on a quarterly basis. This is
most unfortunate.
49. With regard to the undertrial prisoners who could be considered for
release under the provisions of Section 436A of the Cr.P.C., some progress
had been made except in the States of Assam, Bihar, Chhattisgarh, Goa,
Karnataka, Meghalaya, West Bengal, and the Union Territories of Dadra &
Nagar Haveli and Lakshadweep. It was stated in the affidavit that
notwithstanding the lack of detailed information it did appear that due to
the institutionalization of the exercise, the number of undertrial
prisoners eligible for release under Section 436A of the Cr.P.C. had been
considerably reduced in some States.
50. In the hearing that took place on 29th January, 2016 it was pointed
out that considerable progress had been made inasmuch as the Model Prison
Manual had been finalized and perhaps circulated to all the States and
Union Territories; Under Trial Review Committees had been set up in every
district but unfortunately many of such Committees were not meeting on a
regular basis every quarter; the application software for prison management
had more or less been identified but a final decision was required to be
taken in this regard; steps were required to be taken for the release of
undertrial prisoners particularly in the State of Uttar Pradesh and the
State of Maharashtra and wherever necessary, the number of panel lawyers
associated with the State Legal Services Authority/District Legal Services
Committee were required to be increased to meet the requirement of early
release of undertrial prisoners and prisoners who remain in custody due to
their poverty and inability to furnish bail bonds. In addition, it was
pointed out that steps should be taken to ensure that wherever persons are
in custody under offences that are compoundable, steps should be taken to
compound the offences so that overcrowding in jails is reduced.
51. Has anything changed on the ground? The prison statistics available
as on 31st December, 2014 from the website of the NCRB[7] indicate that as
far as overcrowding is concerned, there is no perceptible change and in
fact the problem of overcrowding has perhaps been accentuated with the
passage of time. The figures in this regard are as follows:
| |Central Jails |District Jails |
|Capacity |1,52,312 |1,35,439 |
|Actual |1,84,386 |1,79,695 |
|% |121.1% |132.7% |
|Undertrials |95,519 (51.8%) |1,43,138 (79.7%) |
52. The maximum overcrowding is in the jail in the Union Territory of
Dadra & Nagar Haveli (331.7%) followed by Chhattisgarh (258.9%) and then
Delhi (221.6%).
53. It is clear that in spite of several orders passed by this Court
from time to time in various petitions, for one reason or another, the
issue of overcrowding in jails continues to persist and apart from anything
else, appears to have persuaded Justice R.C Lahoti to address a letter of
the Chief Justice of India on this specific issue of overcrowding in
prisons.
54. We cannot forget that the International Covenant on Civil and
Political Rights, to which India is a signatory, provides in Article 10
that: “All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person.” Similarly,
Article 5 of the Universal Declaration of Human Rights (UDHR) provides: “No
one shall be subjected to torture or cruel, inhuman or degrading treatment
or punishment.” With reference to the UDHR and the necessity of treating
prisoners with dignity and as human beings, Vivien Stern (now Baroness
Stern) says in A Sin Against the Future: Imprisonment in the World as
follows:
“Detained people are included because human rights extend to all human
beings. It is a basic tenet of international human rights law that nothing
can put a human being beyond the reach of certain human rights protections.
Some people may be less deserving than others. Some may lose many of their
rights through having been imprisoned through proper and legal procedures.
But the basic rights to life, health, fairness and justice, humane
treatment, dignity and protection from ill treatment or torture remain.
There is a minimum standard for the way a state treats people, whoever they
are. No one should fall below it.” [8]
55. In a similar vein, it has been said, with a view to transform
prisons and prison culture:
“Treating prisoners not as objects, but as the human beings they are, no
matter how despicable their prior actions, will demonstrate an unflagging
commitment to human dignity. It is that commitment to human dignity that
will, in the end, be the essential underpinning of any endeavor to
transform prison cultures.”[9]
56. The sum and substance of the aforesaid discussion is that prisoners,
like all human beings, deserve to be treated with dignity. To give effect
to this, some positive directions need to be issued by this Court and these
are as follows:
The Under Trial Review Committee in every district should meet every
quarter and the first such meeting should take place on or before 31st
March, 2016. The Secretary of the District Legal Services Committee should
attend each meeting of the Under Trial Review Committee and follow up the
discussions with appropriate steps for the release of undertrial prisoners
and convicts who have undergone their sentence or are entitled to release
because of remission granted to them.
The Under Trial Review Committee should specifically look into aspects
pertaining to effective implementation of Section 436 of the Cr.P.C. and
Section 436A of the Cr.P.C. so that undertrial prisoners are released at
the earliest and those who cannot furnish bail bonds due to their poverty
are not subjected to incarceration only for that reason. The Under Trial
Review Committee will also look into issue of implementation of the
Probation of Offenders Act, 1958 particularly with regard to first time
offenders so that they have a chance of being restored and rehabilitated in
society.
The Member Secretary of the State Legal Services Authority of every State
will ensure, in coordination with the Secretary of the District Legal
Services Committee in every district, that an adequate number of competent
lawyers are empanelled to assist undertrial prisoners and convicts,
particularly the poor and indigent, and that legal aid for the poor does
not become poor legal aid.
The Secretary of the District Legal Services Committee will also look into
the issue of the release of undertrial prisoners in compoundable offences,
the effort being to effectively explore the possibility of compounding
offences rather than requiring a trial to take place.
The Director General of Police/Inspector General of Police in-charge of
prisons should ensure that there is proper and effective utilization of
available funds so that the living conditions of the prisoners is
commensurate with human dignity. This also includes the issue of their
health, hygiene, food, clothing, rehabilitation etc.
The Ministry of Home Affairs will ensure that the Management Information
System is in place at the earliest in all the Central and District Jails as
well as jails for women so that there is better and effective management of
the prison and prisoners.
The Ministry of Home Affairs will conduct an annual review of the
implementation of the Model Prison Manual 2016 for which considerable
efforts have been made not only by senior officers of the Ministry of Home
Affairs but also persons from civil society. The Model Prison Manual 2016
should not be reduced to yet another document that might be reviewed only
decades later, if at all. The annual review will also take into
consideration the need, if any, of making changes therein.
The Under Trial Review Committee will also look into the issues raised in
the Model Prison Manual 2016 including regular jail visits as suggested in
the said Manual.
We direct accordingly.
57. A word about the Model Prison Manual is necessary. It is a detailed
document consisting of as many as 32 chapters that deal with a variety of
issues including custodial management, medical care, education of
prisoners, vocational training and skill development programmes, legal aid,
welfare of prisoners, after care and rehabilitation, Board of Visitors,
prison computerization and so on and so forth. It is a composite document
that needs to be implemented with due seriousness and dispatch.
58. Taking a cue from the efforts of the Ministry of Home Affairs in
preparing the Model Prison Manual, it appears advisable and necessary to
ensure that a similar manual is prepared in respect of juveniles who are in
custody either in Observation Homes or Special Homes or Places of Safety in
terms of the Juvenile Justice (Care and Protection of Children) Act, 2015.
59. Accordingly, we issue notice to the Secretary, Ministry of Women and
Child Development, Government of India, returnable on 14th March, 2016.
The purpose of issuance of notice to the said Ministry is to require a
manual to be prepared by the said Ministry that will take into
consideration the living conditions and other issues pertaining to
juveniles who are in Observation Homes or Special Homes or Places of Safety
in terms of the Juvenile Justice (Care and Protection of Children) Act,
2015.
60. The remaining issues raised before us particularly those relating to
unnatural deaths in jails, inadequacy of staff and training of staff will
be considered on the next date of hearing.
..……………………..J
(Madan B. Lokur)
………………………J
New Delhi; (R.K. Agrawal)
February 5, 2016
-----------------------
[1] (1980) 3 SCC 488
[2] (1978) 4 SCC 494
[3] (1997) 2 SCC 642
[4] (2000) 6 SCC 168
[5] Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to
Constitutional Discourse by Eva S. Nilsen, Boston University School of Law
Working Paper Series, Public Law & Legal Theory Working Paper No. 07-33
[6] MANU/SC/0786/2014
[7] http://ncrb.nic.in
[8] Vivien Stern, A Sin Against the Future: Imprisonment in the World 192
(1998).
[9] The Mess We’re In: Five Steps Towards the Transformation of Prison
Cultures by Lynn S. Branham, Indiana Law Review, Vol. 44, p. 703, 2011
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