INHUMAN CONDITIONS IN 1382 PRISONS I.A. NO. 26542 OF 2018 IN WRIT PETITION (CIVIL) NO. 406 OF 2013versus.

1230                SUPREME[2018]
                            COURT 14 REPORTS
                                     S.C.R. 1230            [2018] 14 S.C.R.


 A             RE : INHUMAN CONDITIONS IN 1382 PRISONS
                              I.A. No. 26542 of 2018
                                         IN
                        Writ Petition (Civil) No. 406 of 2013
 B                            DECEMBER 13, 2018
              [MADAN B. LOKUR, S. ABDUL NAZEER AND
                             DEEPAK GUPTA, JJ.]
              Prisons Act, 1894 – Rights of prisoners on death row – Held:
 C     Convict on death row is entitled to have meetings with his immediate
       family members, lawyers or even mental health professionals – Such
       convict is entitled to move within the confines of the prison like any
       other convict undergoing rigorous imprisonment, however, certain
       restrictions may be necessary for security reasons, but even then, it
       would be necessary to comply with natural justice provisions with
 D     an entitlement to file an appeal – All other issues left open for
       consideration by the Justice Amitava Roy Committee – Committee to
       look into the issues raised in the present application in greater depth
       – Constitution of India – Arts. 14 and 21.
              Prisons Act, 1894 – s.30 – Prisoner, when a death row
 E     prisoner – Held: A prisoner can be said to be a death row prisoner
       when his sentence is beyond judicial scrutiny and would be operative
       without any intervention from any other authority.
              Sunil Batra v. Delhi Administration and others (1978)
              4 SCC 494 : [1979] 1 SCR 392 – followed.
 F            Sunil Batra (II) v. Delhi Administration (1980) 3 SCC
              488 : [1980] 2 SCR 557 ; Kishore Singh Ravinder Dev
              v. State of Rajasthan (1981) 1 SCC 503 : [1981] 1 SCR
              995 ; Frances Coralie Mullin v. Administrator, Union
              Territory of Delhi (1981) 1 SCC 608 : [1981] 2 SCR
              516 ; Rakesh Kaushik v. B.L. Vig (1980) Suppl. SCC
 G
              183 : [1980] 3 SCR 929 – relied on.
                              Case Law Reference
       [1979] 1 SCR 392                followed                    Para 5
       [1980] 2 SCR 557                relied on                   Para 6
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                                        1230
        RE : INHUMAN CONDITIONS IN 1382 PRISONS                           1231


[1981] 1 SCR 995                relied on                   Para 6        A
[1980] 3 SCR 929                relied on                   Para 8
[1981] 2 SCR 516                relied on                   Para 10
      CIVIL ORIGINAL JURISDICTION : Interlocutory Application
No. 26542 of 2018 in Writ Petition (Civil) No. 406 of 2013                B
      (Under Article 32 of the Constitution of India)
      Gaurav Agrawal, A.C.
       A. N. S. Nadkarni, ASG, Ms. Aparna Bhat, Ms. Shivangi Singh,
Yash V., R. M. Bajaj, Ms. Binu Tamta, R. Bala, Ms. Sushma Manchanda,      C
Ms. Suhasini Sen, Ms. Aarti Sharma, G. S. Makker, B. V. Balram Das,
Raghavendra Mohan Bajaj, Guntur Prabhakar, Ms. Prerna Singh, Anil
Shrivastav, Rituraj Biswas, Satyendra Kumar Srivastav, Shuvodeep Roy,
Somnath Banerjee, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha,
Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja Singh, Tapesh Kumar
Singh, Kumar Anurag Singh, Aditya Pratap Singh V.N. Raghupathy,           D
Lagnesh Mishra, Parikshit P. Angadi, C. K. Sasi, Ms. Nayantara Roy,
Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar, Leisangthem
Roshmani Kh., Maibam Babina, Ms. Anupama Ngangom, Ranjan
Mukherjee, K. V. Kharlyngdoh, Daniel Stone Lyngdoh, K. N.
Madhusoodhanan, Ms. Nitya Madhusoodhanan, T. G. Narayanan Nair,           E
Rajesh Srivastava, Mrs. K. Enatoli Sema, Amit Kumar Singh Anindita
Pujari, Ms. Aarti Krupa Kumar, Amit Sharma, Ankit Raj, Ms. Indira
Bhakar, Ms. Nidhi Jaswal, Ms. Ruchi Kohli, Ms. Aruna Mathur, Avneesh
Arputham, Ms. Anuradha Arputham, Ms. Geetanjali for M/s Arputham
Aruna & Co., Shuvodeep Roy, Rituraj Biswas, M. Yogesh Kanna, Mrs.
                                                                          F
Sujatha Bagadhi, S. Partha Sarathi, P. Venkat Reddy, Prashant Tyagi for
M/s Venkat Palwai Law Associates, Rajan Kumar Chourasia, Jitendra
Kumar Tripathi, Harish Pandey, Ms. Rachana Srivastava, Ms. Monika,
Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, Abhishek Manchanda,
Ms. Kajal Dalal, Ms. Dimple Nagpal for M/s PLR Chambers, K. V.
Jagdishvaran, Mrs. G. Indira, V. G. Pragasam, S. Prabu                    G
Ramasubramanian, S. Manuraj, T. N. Rama Rao, Hitesh Kumar Sharma,
Mrs. T. Veera Reddy, Advs. for the appearing parties.



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1232                    SUPREME COURT REPORTS                    [2018] 14 S.C.R.


 A               The Order of the Court was passed by
                 MADAN B. LOKUR, J
               1. This application for directions and declarations has been filed
       in which it is prayed, inter alia, that prisoners sentenced to death by any
       court have a right to be treated at par with other convicted prisoners and
 B     should be provided all similar facilities as are provided to other prisoners.
       It is also prayed that solitary confinement of prisoners on death row or
       their separate and cellular confinement be struck down as
       unconstitutional.
              2. We do not think it necessary to go into all the issues raised in
 C     the application but find it necessary to place in perspective certain aspects
       of the rights of prisoners.
              3. One of the important questions before us is: When could it be
       said that a convict is under the sentence of death? Could it be said that
       when the Trial Court convicts a prisoner and sentences him to death,
 D     then that prisoner is a death row prisoner? Or, could it be said that when
       the death sentence is beyond judicial scrutiny, that is after the sentence
       is upheld by this Court, the mercy petition is rejected and a challenge to
       the rejection is dismissed, then the prisoner is a death row prisoner?
               4. It was submitted by the learned Amicus that even after the
       convict is sentenced to death by the Trial Court, he is entitled to be
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       treated and dealt with like any other convicted prisoner and is therefore
       entitled to the opportunity to work on voluntary basis. The convict is also
       entitled to other facilities such as participating in educational programmes,
       vocational training and skill development as well as other institutional
       facilities available to other convicted prisoners.
 F             5. The issue must be considered in a humanitarian and
       compassionate manner. That apart the law laid down by this Court in
       Sunil Batra v. Delhi Administration and others1 is quite clear. It has
       been held in paragraph 223 of the Report that a prisoner under sentence
       of death can only mean a prisoner whose sentence of death has become
 G     final, conclusive and indefeasible and which cannot be annulled and voided
       by any judicial or constitutional procedure. In other words, a prisoner
       can be said to be a prisoner on death row when his sentence is beyond
       judicial scrutiny and would be operative without any intervention from
       any other authority. Till then, such a prisoner cannot be said to be under
       a sentence of death in the context of Section 30 of the Prisons Act,
 H     1
           (1978) 4 SCC 494
            RE : INHUMAN CONDITIONS IN 1382 PRISONS                                  1233
                      [MADAN B. LOKUR, J]

1894. That being the position, as also mentioned in paragraph 101 of the             A
Report, a prisoner is entitled to every creature comfort and facilities
such as bed and pillow, opportunity to commerce with human kind, writing
material, newspapers, books, meeting with family members etc.
      6. The above view has been reiterated in Sunil Batra (II) v.
Delhi Administration2 in paragraph 42 of the Report and in Kishore                   B
Singh Ravinder Dev v. State of Rajasthan3 in paragraphs 10 and 13 of
the Report. In paragraph 10 of the Report in Kishore Singh, it was held
that there is no difference between a separate cell and solitary
confinement. Therefore, a convict on death row is entitled to move within
the confines of the prison like any other convict undergoing rigorous
imprisonment. However, certain restrictions may be necessary for                     C
security reasons, but even then, it would be necessary to comply with
natural justice provisions with an entitlement to file an appeal.
          7. Paragraph 10 reads as follows:
          “10. We cannot agree that either the Section or the Rules can be
          read in the absolutist expansionism the prison authorities would           D
          like us to read. That would virtually mean that prisoners are not
          persons to be dealt with at the mercy of the prison echelons. This
          country has no totalitarian territory even within the walled world
          we call prison. Articles 14, 19 and 21 operate within the prisons in
          the manner explained in Sunil Batra (I) [ Under Article 32 of the          E
          Constitution] , by a Constitution Bench of this Court. It is significant
          that the two opinions given separately in that judgment agree in
          spirit and substance, in reasoning and conclusions. Batra in that
          case was stated to be in a separate confinement and not solitary
          cell. An identical plea has been put forward here too. For the
          reasons given in Sunil Batra (I) case [ Under Article 32 of the            F
          Constitution] we must overrule the extenuatory submission that a
          separate cell is different from solitary confinement. The
          petitioners will, therefore, be entitled to move within the
          confines of the prison like others undergoing rigorous
          imprisonment. If special restrictions of a punitive or harsh               G
          character have to be imposed for convincing security reasons, it
          is necessary to comply with natural justice as indicated in Sunil
          Batra (J) case [ Under Article 32 of the Constitution]. Moreover,
          there must be an appeal not from Caeser to Caeser, but from a
2
    (1980) 3 SCC 488
3
    (1981) 1 SCC 503
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1234                   SUPREME COURT REPORTS                      [2018] 14 S.C.R.


 A              prison authority to a judicial organ when such treatment is meted
                out.” (Emphasis supplied by us).
              8. In paragraph 13 of the Report in Kishore Singh, it was directed
       that the rulings of this Court in the cases of Sunil Batra and Rakesh
       Kaushik v. B.L. Vig4 on prison administration be converted into rules
 B     and instructions forthwith so that violation of prisoners’ freedom can be
       avoided and habeas corpus litigation may not proliferate. Paragraph 13
       of the Report reads as follows:
                “13. We find that the old rules and circulars and instructions issued
                under the Prisons Act are read incongruously with the Constitution
 C              especially Article 21 and interpretation put upon it by this Court.
                We, therefore, direct the State Government of Rajasthan
                — and indeed, all the other State Governments in the
                country — to convert the rulings of this Court bearing on
                Prison Administration into rules and instructions forthwith
                so that violation of the prisoners’ freedoms can be avoided
 D              and habeas corpus litigation may not proliferate. After all,
                human rights are as much cherished by the State as by the citizen.”
                (Emphasis supplied by us).
              9. In our opinion, the decisions of this Court have quite clearly
       defined when a prisoner could be said to be on death row and have also
 E     taken care of the rights of prisoners on death row as well as those who
       are a security risk. No further elucidation is necessary.
              10. With regard to the entitlement of a prisoner on death row to
       have meetings and interviews with his lawyers or members of his
       immediate family or even mental health professionals, we are of opinion
 F     that such meetings and interviews should be permitted. We follow the
       view expressed by this Court in Frances Coralie Mullin v.
       Administrator, Union Territory of Delhi5. In paragraph 8 of the Report,
       it was specifically noted by this Court, after referring to the Universal
       Declaration of Human Rights and the International Covenant on Civil
       and Political Rights that as a part of the right to live with human dignity,
 G     a prisoner is entitled to have interviews with members of his family and
       friends and no prison regulation and procedure to the contrary can be
       upheld as being constitutionally valid under Articles 14 and 21 of the
       Constitution unless it is reasonable, fair and just. Similarly, there cannot
       4
           1980 Supp SCC 183
       5
 H         (1981) 1 SCC 608
         RE : INHUMAN CONDITIONS IN 1382 PRISONS                                    1235
                   [MADAN B. LOKUR, J]

be any doubt that a prisoner must be entitled to have discussions with his          A
lawyers so that he has effective legal representation and access to justice
as well as remedies for justice. In our opinion, the law laid down by this
Court in Frances Coralie Mullin would be equally applicable to death
row prisoners for meeting mental health professionals for a reasonable
period of time with reasonable frequency so that their rights can be
                                                                                    B
adequately protected at all stages.
       11. We make it clear that we have only reiterated the law laid
down by this Court over several decades and which is based not only on
the provisions of our Constitution but is also in conformity with international
instruments. As held by this Court, the rights of prisoners as enunciated
by this Court would be available not only in a particular State but would           C
be available to them in all the States and Union Territory Administrations
across the country. Accordingly, the State Governments and Union
Territory Administrations must modify the prison manuals, regulations
and rules accordingly.
       12. We request the Justice Amitava Roy Committee to look into                D
all the issues raised in the application in greater depth in addition to its
Terms of Reference.
       13. Since we are leaving all other issues open for consideration
by the Justice Amitava Roy Committee, the applicant is at liberty to
assist the Justice Amitava Roy Committee in this regard.                            E
       14. The application is disposed of.

Divya Pandey                                             Application disposed of.


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