CHARLES SOBRAJ versus THE SUPTD., CENTRAL JAIL, TIHAR, NEW DELHI

CHARLES SOBRAJ

THE SUPTD .• CENTRAL JAIL. TIHAR. NEW DELHI

August 31, 1978

[V. R. KRISHNA IYER, D. A. DESAI AND 0, CHINNAPPA REDDY, JJ.J

Pol1[1]ers of the Supre1ne Court to interfere tO right the ll'rong and restore the rule of law-Constitution of India 1950, Art. 136.

Funda11ze11tal Rights-Whether the prisoners can invoke their constitutional rights under Part III of the Constitution-Prison justice and Art. 21 of the Con-stitution--Prison justice is sort of solemn covenant running with the power of the Court to sentence the accused-Judicial discretion vis-a-vis priso11 acllninis· tration and p1 l~oners' rights, explained-Correctional confinen1e1tt and Court's. jurisdiction.

The petitioner convict having to serve two sentences of long imprison-ment, plus record of one escape and one attempt of suicide and interpol reports of many crimes abroad in addition to several cases pending in India against him, through this writ petition contended that barbarity and inhuman· )) trcatn1ent have been hurled at him and that intentional discrimination has· been his lot throughout and, therefore, sought the assistance of this Court for directing the jail authorities to give him finer foreigners as companions, and to re111ove him from high security ward like Ward-I to more relaxed \vard .. by invoking the provisions of Artit:les 14, 19 and 21 of the Ccnstitntion.

Disn1issing the Writ Petition the Court,

HELD : ( 1) Imprisonment does not spell farewell to fundamental rights. although, by realistic re-appraisal, Courts will refuse to recognise the fulf panoply of Part III of the Constitntion enjoyed by free citizen. Whenever fundamental rights are flouted or legislative protection ignored to any prisoner's prejudice, this Court's writ will run breaking through stone \Valls and iron bars, to right the wrong and restore the rule of law. Then the parrot-cry of disci-pline \ViU not deter, of security will not scare, of discretion will not dissuade, th~ judicial process. For if courts 'cave in' when great rights are gouged \Vithin the sound-prOOf, sight-proof precincts of prison houses. where often dis-senters and minorities are caged, Bastilles will be re-enacted. \Vhen ]a\\' ends. tyranny begins; and history whispers, iron has never been thtJ1 ans\\·er to the· rights of men. [514 H, 515 A-BJ

(2) Art. 21 of the Constitution read with Art. i9(i)(d) an<l (5) is capa-ble of wider application than the imperial mischief which ga.ve its birth and must dral\' its meaning from the evolving standards of decency and dignity that mark the progress of mature society. Fair procedure is the soul of Art. 21f reai;onableness of the' restriction is the· essence of Art. 19(5) and sweeping dis-cretion degenerating into arbitrary discrimination is anathema for Art. 14. Constitutional Karuna is thus injected into incarceratory strategy to produce prison justice. [515 C-Dl

Sunil Batra v. Delhi Adn1n. & Ors. and Charles Gur1anukl1 Sobraj v. State of Delhi [1979] 1 SCR 392 referred to.

Kharak Singh v. State of U.P., [1964] 1 SCR 357; applied.

(3) P1ison justice implies Court's continuing duty and authority to ensure that the judicial warrant which deprives person of his life or Jiberty i~ not exceeded~ subverted or stultified. It is sort ·of solemn covenant running with the power to sentence. Where prison practice or internal instruction pla~es harsh restrictions on jail life, breaching guaranteed rights, the Court directly comes in. Every prison stntence is conditioned deprivation of life and liberty, with civiliz.ed· norms built in and unlimited trauma interdicted. Jn this sense judicial· policy of prison practices is implied in the sentenci~g power. The Criminal judiciary have thus duty to guardian their sentencees and visit prisons \\-·hen necessary. The penological goals which may be rega-rded as reasonab1e justification for restricting the right to move freely within the confines of penitentiary are now well settled. And if prisoners have title to Articles 19, 21 and 14 rights, subject to the limitations, there must be some correlation between depriviation of comfort and legitimate function of correctional system.

[515 G. 516-E, F-G]

(4) Deterrence, both specific and general rehabilitation, and institutional secmity are vital considerations. Compassion wherever possible and cruelty only where inevitable is the art of correctional confinement. When prison policy advanC¢S such valid goal, the Court will not intervene officiously. But when an inmate is cruelly restridted in manner which supports no such relevant purpose, the restriction becomes unreasonable and arbitrary, and unconstitution-ality is the consequence. Traumatic futility is obnoxious to pragmatic legality. Sociai defence is the raison d'etre of the penal code and bears upon judicial control over prison administration. If whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself i"I crea:ed or if medical facilities and basic elements of care and comfort neces-sary to sustain life are refused, then also the humane jurisdiction of the Court will become operational based <>n Art. 19. [516 G-H, '17 D-E]

(5) Prisoners retain all rights enjoyed by free citizens except those Jo~t necessarily as an incident of confinement. Rights enjoyed by prisoners under Arts 14, 19 and 21 though limited are not static and will rise to human heights ~·hen chalJengirig situations arise. [518 A-BJ

R .. C. Cooper v. Union of India, [1971] 1 SCR 512; Maneka Gandhi v. Union vf India & Anr., [1978] 1 SCR 248, Mohammad Giasuddin v: State of Andhra l'rades/i, [1978] 1 SCR 153; reiferred to.

(6) However, prison system may make rational distinctions in making assignments to inmates of vocationa1, educational and work opportunities avail-able, but it is constitutionally impermissible to do.so without functional classi-fication system. Courts cannot be critical of the administration if it nlakes classification between dangerous prisoners and ordinary prisoners. distinction between the under trials and convicts is reasonable. In fact lazy relaxation on se(:urity is prof"'8ional risk inside prison. [517 F, G, 519 B, C]

The petitioner being foreigner cannot claim rights under Art. 19. over he is now convict and is not in solitary confinement. I519 D] OBSERV A.TlON:

More-

[The Court must not rush in where· the jailor fears country. may not make the priron boss the sole sadistic

to tread. \Vhile the arbiter of incarcerated

hu1na!1s, the community may be in no mood to handover central prisons to be run by Courts. Each instrumentaJity must function within its province.]

ORIGINAL JURISDICTION: Writ Petition No. 4305 of 1978.

Under Article 32 of the Constitution.

N. M. Ghatate and S. V. Deshpande. for the Petitioner

Soli !. Sorabjee, Adell. Sol. General and Girish Chandrn for the Respondent.

The Order of the Court was delivered by

KRISHNA IYER, J. litigation with social dimension, even in blinkered adversary system, serves larger cause than the limited lis before the court. This petition, with non-specific reliefs, is one such.

Sobraj, the petitioner, by the frequency of his forensic .:om-plaints against incarceratory torture and Dr. Ghatate, his counsel, by the piquancy of his hortative advocacy of freedom behind bars, have sought to convert the judicial process from constitutional sentinel of prison justice-which, emphatically, it is-into meti-culous auditor-general of jail cells-which, pejoratively, it is not-although, on occasions, 'thin partition do their bounds divide'. Often, as here, the fountain of confusion in penitentiary jurisprudonce is forgetfulness of fundamentals. Once the legal basics are stated, Sobraj, with his disingenuous, finical grievances, will be out of court.

What arc the governing principles, decisionally set down by this court in Batra and Sobraj? Has the court jurisdiction to . decide prisoners' charges of violation of rights ? If it has, can it meddle with the prison administration and its problems of security and discipline from an 'innocent' distance 'I Put tersely; both the 'hands off' doc-trine and the 'take over' theory have been rebuffed as untenable extremes and middle ground has been found of intervening when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner and declining where lesser matters of institu-tional order and man management, though irksome to some, are alone involved.

Contemporary profusion of prison torture reports makes it neces-sary to drive home the obvious, to shake prison top brass from the callous complacency of unaccountable autonomy within that walled-off world of human held incommunicado. Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, this Court's writ will run, breaking through stone walls and iron ])ars, t<Y right the wrong and restore the rule of law. Then the

parrot-cry of discipline will not deter, of security will not scare, of discretion will not dissuade, the judicial process. For if courts 'cave in' when great rights are gouged within the sound-proof, sight-proof precincts of prison houses, where, often, dissenters and minorities are caged, Bastilles will be re-enacted. When law ends tyranny begins; and history whispers, iron has never been the answer to the rights of men. Therefore we affirm that imprisonment does not spell farewell to fundamental rights although, by realistic re-appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by free citizen.This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution. Art. 21, read with Art. 19(1) (d) and (5), is capable of wider application than the imperial mischief which gave its birth and must draw its meaning from the evolving standards of decency and dignity that mark the progress of mature society, as Batra and Sobraj have underscored and the American Judges have highlighted. Fair proce-dure is the soul of Art. 21, reasonableness of the restriction is the essence of Art. 19(5) and sweeping discretion degenerating into arbilrary discrimination is anathema for Art. 14. Constitutional karuna is thus injected into incarceratory strategy to produce prison justice. And as an annotation of Art. 21, this Courli has adopted, in Kharak Singh's case(') that expanded connotation of 'life' given by Field, J. which we quote as reminder:

"Something more than mere animal existence. The

inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruc-tion of any other organ of the body through which the soul communicates with the outer world".

The next axiom of prison justice is the court's continuing duty and authority to ensure that the judicial warrant which deprives person of his life or liberty is not exceeded, subverted or stultified. lt is sort of solemn covenant running with the power to sentence.

The U.S. Courts have intensified their oversight of State penal facilities reflecting heightened concern with the extent to- which the ills that plague so-called correctional institutions violate basic rights, points out Edward S. Crowin.('). Although, the learned author, and,

-·-~----{!) [1964J I SCR 357. 1'2) Supplement to Edward S. Corwin's 'The Constitution• and What it means Today; I 976 Edn. p. 245.

indeed, the decisions show that reliance is placed on the Eighth Amendment, as we have earlier pointed out, the same sensitized attention and protective process emanate from the humane provisions of Part III of our Constitution. Viewed differently, supJJO§ing court sentences person to simple imprisonment or assigns him 'B' class treatment and the jail autho-rities unwittingly or vindictively put him under rigorous imprison-ment or subject him to 'C' class treatment, does it not show contempt of the court's authority and deprivation of li11erty beyond degree validated by the court warrant ? Likewise, where prisoner is sub-jected to brutality, exploiting the fact that he is helplessly within the custody of the Jail Administration, does it not deprive the prisoner of his life and liberty beyond the prescribed limits set by the court? Yet again, where conditions within prison are such that inmates incarcerated th~rein will inevitably and necessarily become more sociapathic than they were prior to the sentence, is not the court's punitive purpose, charged with healing hope, stultified by the prison authorities? Of course, where prison practice or internal instruc-tion places harsh restrictions on jail life, breaching guaranteed rights, ihe court directly comes in. Every prison sentence is conditioned deprivation of life and liberty, with civilised norms built in and un-limited trauma interdicted. In this sense, judicial policing of prison practices is implied in the sentencing power. The Criminal judiciary have tlms duty to guardian their sentences and visit prisons when necessary. Many of them do not know or exercise this obligation.Another jurisdictional facet may be touched upon in view of the widely worded relief sought to treat Sobraj 'in human and dignified manner, keeping in view the adverse effect. of his confinement upon his mental and physical conditions'. The penologica\ goals which may be regarded as reasonable jusiifieation for restricting the rigl1t to move freely within the confines of penitentiary are now well-settlep. And if prisoners have title to Article 19, 21 and 14 rights, subject to the limitation we have indicated, there must be some correlation between deprivation of freedom and the legitimate functions of correctional system. It is now well-settled, as stream of rulings of courts proves, that deterrence, both specific and general, rehabilitation and instir tutional security are vital considerations. Compassion wherever possi-· ble and cmelty only where inevitable is the art of correctional con-finement. When prison policy advances such valid goal, the court will not inervene officiously.

CHARLES SOBRAJ v. SUPDT. CENTRAL JAIL (Krishna Iyer, J.)517

This overall attitude was incorporated as standard by the American National Advisory Commission on Crimine Justice Stand-ards and Goals :-

by the

,, . . . . . . rehabilitative purpose is or ought to be implicit in every sentence of an offender unless ordered otherwise by the sentencing court".(')

The U.S. Supreme Court summed up:

"In series of decisions this court has held that. even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving tl1e same basic purpose."(')

But when an inmate is cruelly restricted in manner which sup-ports no such relevant purpose, the restriction becomes unreasonable and arbitrary, and unconstitutionality is the consequence. Traumatic futility is obnoxious to pragmatic legality. Social defence is the raison d'etre of the penal code and bears upon judicial control over prison administration. If whole atmosphere of constant fear of violence. frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care and comfort necessary to sustain life are refused then also the humane jurisdiction of the court will become operational based on Art. 19: Other forms of brutal tmreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in penal system but we wish to lay down only broad guideline tliat where policies, with 'Zoological touch', which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in reha-bilitation, the court is not helpless. Hom;ver, prison system may make rational distinctions in making assignments to inmates of voca-tional, educational and work opportunities available hut it is consti-tutionally impermissible to do so without functional clas!ification system. The mere fact tl1at prisoner is poor or rich, high-born or ill bred, is certainly irrational as differential in 'secular socialist republic'. Since the petitioner charges the jail staff with barbaric and inhuman treatment in prison we are called upon to delineate the broad boundaries of _judicial jurisdiction vis-a-vis prison administration and prisoner's rights.

(1) "To solve the age-old Problem of Crime" Roger Lanphear, J. D. p-19.

(2) Ibid p. 21

The court is reluctant to intervene in the day-to-day opera-tion of the State penal system; but undue harshness and avoidable · tantrums, under the guise of discipline and security, gain no i111niu-nity frum court writs. The reason is, prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement. Moreover, the rights enjoyed by prisoners under Articles 14, 19 and 21, though limited, are not static and will rise to human heiihts when challenging situations arise. Cooper(') an'! Maneka Gandhi(') have thus compulsive conseguercc benignant to prisoners. The petitioner in the present case has contended that barbaric and inhuman treatment have been hurled at him and that intentional discrimination has been his lot throughout. These allegations invit-ed us to examine the limits and purpose of judicial jurisdiction but we have to apply the principles so laid down to the facts of the present case. Starry abstractions do not make sense except in the context of concrete facts. That is why we agree with the propositions of law urged by Dr. Ghatate but disagree with the distre» and discrimina-tion his client wails about.. True, confronted with cruel conditions of confinement, the court has an expanded role. True, the light to life is more than mere animal existence, or vegetable subsistence.(') True, the worth of the human person and dignity and divinity of every individual inform articles 19 and 21 even in prison setting. True, constitutional provisions and municipal laws must be interpretc ed in the light of the normative Jaws of nations, wherever possible and prisoner does not forfeit his Part III rights. But what are the facts here ?

Charles Sobraj is no longer an under-trial, having to s~rve two sentences of long imprisonment. He is given all the amenities of 'B' class prisoner. He goes on hunger strike but medical men take care of him. Ward I, where he is lodged, gives him the facili-ties of wards XIII and XIV where he wants to be moved. He has record of one escape and one attempt at suicide and Interpol reports of many crimes abroad. There are several cases . pending in India against him. Even so, the barbarity of bar fetters inflicted on him by qualmless jail staff was abandoned under orders -of this Court. Now. he seeks the other extreme of coddling as if jail were country club or good hotel. Give me finer foreigners as companions, he demands. Don't keep convict cooks and warders as

(I) [1971] I SCR 512.

(2) [1978] I SCR 248

(3) Mohammed Giasuddin v. State of Andhra Pradesh, [I 978] 1 SCR l SJ.

jailmates in my cell he rails. Remove me from high security . ward like Ward I to more relaxed ward like Ward 14 or 13, he solicits. These delicate and genteel requests from prisoner with his record and potential were turned down by the Superintendent and the reasons for such rejection, based ou security, rules and allergy of other inmates to be his risky fellow-inmates have been stated on oath. We cannot be critical of the Administration if it makes classification between dangerous prisoners and ordinary prisoners. In the present case, the Superintendent swears, and it is undisputed, that the petitioner is not under solitary confinement. We further aver that distinction between under-trials and convicts is reasonable and the petitioner is now convict. In fact, lazy re-laxation on security is professional risk inside prison.

The court must not rush in where the jailor fears to tread. While the country may not make the prison boss the sole sadistic arbiter of incarcerated humans, the community may be in no mood to hand over central prisons to be run by courts. Each instrumentality must function withiu its proviuce. We have no hesitation to hold that while Sobraj has done litigative service for prison reform, he has signally failed to substantiate any legal iujury. We, therefore, dis-miss the writ petition, making it clear that strictly speaking the petitioner being foreigner cannot claim rights under Art. 19, but we have discussed at some length the import of Articles 14, 19 and 21 because they are interlaced and in any case apply to Indian citizens.

Petition dismissed.