Holding

Prison torture and denial of fundamental rights to inmates are within the Supreme Court's jurisdiction, and the Court may order a judicial enquiry and enforce prison‑reform measures.

Summary

Ramesh Kaushik, a life‑time inmate of Tihar Jail, filed a quasi‑habeas corpus petition under Article 32 alleging systematic torture, corruption, drug‑racketeering, sexual exploitation and class‑based privileges within the prison. The petition claimed violations of Articles 14, 19 and 21 of the Constitution and sought judicial intervention to curb the alleged criminal nexus of senior officials and privileged prisoners. The Supreme Court held that prison torture and the denial of fundamental rights to inmates are within its constitutional jurisdiction and cannot be ignored. Relying on earlier decisions such as Sunil Batra v. State (Delhi Administration) and the principles of the International Standard Minimum Rules for Prisons, the Court emphasized the court's duty to ensure that the penological purpose of imprisonment—rehabilitation and deterrence—is not defeated by institutional abuse. It directed the District and Sessions Judge of Delhi, who is a member of the Board of Visitors, to conduct an open enquiry into the specific allegations and to verify compliance with the directives issued in the Sunil Batra cases. The Court also ordered that the findings be reported back within a stipulated time and that appropriate remedial action be taken. Consequently, the petition was allowed and a judicial enquiry was ordered.

Issues considered

Whether prison torture and abuse are within the Supreme Court's constitutional jurisdiction under Article 32.
Whether the fundamental rights guaranteed by Articles 14, 19 and 21 can be enforced for prisoners through writ jurisdiction.
Whether the classification of prisoners into B and C classes violates the principle of equality before law.
Whether the Court can direct and enforce compliance with prison‑reform directives issued in earlier cases (Sunil Batra).
Whether a judicial enquiry by a District and Sessions Judge is an appropriate remedy for the alleged violations.

Legislation cited

Prisons Acts. 61

Subjects

prison torturefundamental rightsArticle 14Article 19Article 21prison reformwrit jurisdictionquasi-habeas corpusprisoner classificationTihar Jailhuman rights

Judgment

RAMESH KAUSHIK A
v.
B. L. VIG, SUPERINIBNDENT AND ANR.
April 30, 1980
[V. R. KRISHNA IYER, 0. CHINNAPPA REDDY AND A. P. SEN, JJ.] B

Jtdl Jurisprudence-Prison torture and Constitutional Jurisdiction of the
Cowt-Tl'eatment for 'B' class amf 'C' class in Tihar !Mil whither o/Jlmlfs
Artidt 14 of the Constitution-Constitution of India Artie/ea 21, 19 and 14.

r Kaushik, a lifer lodged in Tihar Jail moved a quasi habeas corpus petition
.bittaiy complaining with facts and figures, of the terror and horror, pb,ysica1 C
and poycbic, let loose on him and ot:ber jail mates by a crypto criminal combiaa-
·.tiOD of senior officials and superior prisoners, thereby making the prison life
withia that walled world such a trauma a-nd torment the law never mearit
under the sentence suffered at the bands of the Court. Briefly, the petitioner
.allqiod that his life in jail is subjected to intimidation by overbearing ~ooglls'
inlide, that he is forced to be party to misappropriation of jail funds by Biid
·bribe<y of officers, that homoS:exual and sexual indulence with the connivmi<e D
of ollicials are going on, that smuggling in and out is frequent and drug racket
<:OOUllOll, that alcoholic and violent nUsconduct by gangs like those involved
in Bank Robbery and other notoriou,, cases are a menace to quieter prisoner&
and the whole goal of reformation of sentences is defeated by this supercrimc
syndrome. On this the Court appointed Sri Subodh Markentleya as amiaus
curiae to inquire into the allegations and submit a report. The respondent
Delhi. Admini~tration transversed the grounds in the petition. E

Allowing the petitions, the Court

HEID : 1. Prison torture is not beyond the reach of the Supreme Court in
its constitutional jurisdiction. [931 Fl

Were there a modicum of truth in the disclosures made; of vice and violence,.
~-overt and covert, in the goings on in Tihar such an institutional outrage would
F
I. mate our constitutional culture blllsh and our judicial punishment 'guilty' pro-
' cednre. And on the materials placed before the, Court there is gronnd enough
to exercise our exceptional but undoubted jurisdiction to ensure some minimum
''°f" aocial hygierie and banishment of licentious excesses lest the ·sentence of
court be frustrated in its dual ends of deterrence and rehabilltatioo by prison
pathology. [932 B-C]
G
2.· When police and prison torture is escalating in our human rights era,
courts owe a duty to society not to ignore such a dangerous reality. Under our
,a-ilution, deprivatioo of personal liberty as penal policy ill purposive and the
Pemmf ·O:xle itself is valid because the imprisonment of the criminal is reason~
able. not arbitrary, and is sanctioned as a measure of social defence atid
indmdual rehabilitation. A court sentence does not deprive the prisooer of
bis Dmdamental rights. To reform and deter the criminal and to work out that H
procellS ~ to social defence, the convict is cast into prison-not k> make
Jhim more hardened, more brutal, more cunning and dangerous to society. This
930 SUPREME COURT REPORTS [1980] 3 s.c.R..
A r~on d'etr~ of penological institutions in our Gandhian country, with hnma-
rusm ~ basic to. the. constitutional scheme, caonot be; written off without peril.
A Prison t~rm _in T1~ Jail is not a post graduate training in tough crime.
No sentencmg Judge, high and low should hang his helpless head in frustration ~..
and. humibation because institutional alternations and personnel perversions havec
sullied and stultified the justice of his sentence. [932 F-H, 933 A, B, CJ -
B Sunil Batra v. State (Delhi Administration), [1980] 2 SCR,557; referred to.

3. The human rights of common prisoners are at a discount and~ ia our
Socialist Republic moneyed 'B' class convicts operate to oppress the humbler
inmates. There cannot be inequality in prison too on the score of social and
financial status. Bank robbers in 'B' class because they are rich by robbery andJ
nameless little men in •c• class because they are only common Indians! Article
'--'-I'
C 14 is suffocated if this classification is permitted, and yet that, according to
rule itself, is prevalent. Therefore, the Supreme Court must act, will act, to
resto1e the rule Of the law and respect of the residual fundamental risbls 0£
any harassed ~itioner. [933 D-F].

4. The writ jurisdiction Of the Supreme Court must be equal to the need&
of human rights and human wrongs. In Sunil Batra (I) v. Delhi Admiltistra-
D tion, [1979) 1 S.C.R. 393, this Court held that fundamental rights did not for-
sake prisoners and that the penological purpose of "'1tence was importantly,
reformatory even though deterrent too. In the second Sunil Batrds ~ after
a long discussion covering.American Rulings U.N. specifications of the Standard
Minimum Rules for prisons and the implications of Articles 21, 19 and 14 readl
in the• light of Maneka Gandhi's case, [1978) 1 S.C.C. 248, this Court accented
on the habilitative value conta·ined in Rule 58 of the International Standard
E Minimum Roles. Jura! justice thus set makei lite COurt an activist instrument
of jail Justice. [934 A-B, 935 A-B, 938 G]

5. In the instant case, even aftyr making a liberal allowance for adultera-
tion and distortion, the mia6miatic process and restore basic humanism inside-
this penal institution where sentences, punitively sent by court, are subjected'
to unbearable tensions and torments oo their physical and moral fibre, thanb to-
F the prison milieu being what it is. [938 G-H, 939 A]

I 'B' class status for prisoners is, going by averments in the petition, a pa.m~
poring process much abused by officials and, in ., 'class' culture, obnoxbm to-........., .,
the Constitution. Equality before the law cannot co-exist with aftluent blacl<- '>
guards being looked after with luxury and solicitude and lawly indigents being
treated as pmaiahs inside the prisoru. There is reference in the petition to the.. l
three dangerous crimina·ls involved in aj big Bank Van Robbery Case being-
G lodged in Ward 14 as 'B' aass VIPs, who have, on top of other advantages,
certain facilities. It is fairly clear that many vices, including drng racl:ets,
occasional violence, smuggling and trafficking in maay other impermissible .".~
things; have hospitable home in this peniteril:iary. The Administration has cons- 1'
cientious responsibility for the decency and dignity, for correctional obligations-
and social itygiene inside. prison houses and the time is long overdue for a.
'n thorough ov'erhaul of the prison managemenf in Tihar. [940 CE, 941 E-Fj.

6. The crisis in our prisons, the collapse of values in these campuseso th~
inner tension 'red in tooth and c1ass'! the corruption that makes for sensual in.du!-

, • , __ '._L_
RAMESH KAUSHIK v. B. L. VIG (Krishna Iyer, !.) 931

gences, the barbarities that blirden the convicts and never heal them-<ill these A>
processes can be reviewed and hwnaniution resorted if, only if, onr philosophy
toww:ds crime and · punishment change. If vengeance is the spirit of punish..
ment violence will be the prison way of life. [944 C-DJ

[The Court, keeping in view the principle of natural justice and, the limita·
tion of Court time directed a judicial enquiry by the District and Sessions Judge
of Delhi who is a member of th" Boani of Visitors stressing the points to be B
covered in particular1]

"I . [ORIGINAL JURISDICTION: Writ Petition Nos. 393 & 549 of 1980.
(Under Article 32 of the;Constitution)
S. Markendaya (Amicus Curiae) for the Petitioner. c
M. N. Abdul Khader and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by.
KRISHNA IYER J•. ls a prison term in Tihar Jail a post-graduate
course in crime? Such is the poignant issue that emerges from the
facts of this case.

, 'The fundamental human right is not to a legal system that is
infallible but to one that is fair' -these great words of Lord Diplock in
Mah(uaj v. Attorney General of Trinidad and Tobago (No.2) (I) trigger
our jurisdiction to ensure a fair legal deal to the prisoner whose petition
E
to this Court makes frightening exposures about the insiders of Delhi's
Central Jail.
Kaushik, a 'lifer' (to use jail jargon), now lodged in the Tihar
Central Jail, has moved this quasi-habeas corpus petition wherein he
bitterly complains with facts and figures, of the terror and horror,
physical and psychic, let loose on him and other jail-mates by a crypto- p
crim.inal combination of senior officials and superior prisoners, thereb~
making the prison life within that walled world such a trauma and
torment the law never meant under the sentence suffered at the hands
of the court. Prison torture is not beyond the reach of this Court in
its constitutional jurisdiction and so we appointed Shri Subodh
Markandeya as amicus Curiae· and directed the Superintendent'of the JaH G
to make available for him facilities to meet the prisoner Icaushik and to
present, after a brief fact-finding enquiry, the facts nece~sary for taking
further action, if any. Shri Markandeya has, with a gush of gusto,
executed his work of assisting this Court and made a report, and we
record our appreciation therefor. What makes law a force is a lawyer H
with a cause.
(I) (1978]1WLR902, 911.
932 SUPREME COURT REPORTS [1980] 3 S.C.R.

ll The Delhi Administration has responded through counsel' and
traversed the grounds in the petition but Shri Abdul Khader,apJJcllrilig
for the State, has fairly agrood that the Superintendent of the Celllral ~.
jail, far from fighting shy of a probe into the prison management SJJ.d

. )
the shocking aspersions cast on it would welcome a judicial investiga-
tion where he could prove his innocence of the foul charges levelled .
Were there a modicum of truth in the disclosures made of Vice
and violence, overt and covert, in the goings-on in Tihar such an illllti-
' ~

tutional outrage would make our constitutional culture blush and our
judicial punishment 'guilty' procedure. And on the materials placed
before us there is ground enough to exercise our exceptional but undoub-
ted jurisdiction to ensure some minimum of social hygiene and banish-
ment of licentious excesses lest the sentence of court be frustrated in
its dual ends of deterrence and rehabilitation by prison pathology.
Briefly, the petitioner alleges that his life in jail is subjected to
intimidation by. overbearing 'toughs' inside, that he is forced to ·be
party to misappropriation of jail funds by and bribery of officers, that
homosexual and sexual indulgence with the connivance of officials
are going on, that smuggling in and out is frequent and drug racket
common," that alcoholic and violent miscondu.ct by gangs like those
involved in Bank Robbery and other notorious cases are a
menace to <1Uieter prisoners and the whole goal of reformation of
sentencees is defeated by this supercrime syndrome. Maybe, like Oicar
Wilde, the petitioner, in flinging allegations, considers that "modera-
tion is a fatal thing. Nothing succeeds like excess". Making a large
margin for unveracious dilution, still if a fragment of truth survives,
something is rotten in the state of Denmark'. This Courts'writ must
remove from Tihar face such indelible stain and incurable wound.
When police and prison torture is escalating in our human rights
era, courts owe a duty to socfoty not to ignore such a dangerous
reality. "At this time the lack of law and order is especially of prime
concern. Our courts must bear their/ .share .of blame and shame for
this condition" .(I) l
Under our Constitution, deprivation of personal liberty as penal
policy is purposive and the Penal Code itself is valid because the im-
priwnment of the criminal is reasonable, not arbitarary, and is sallC-
tioned as a measure of social defence and individual rehabilitation. A
court sentence does not deprive the prisoner of his fundamental rights
as a Constitution Bench., in Suni/ Batra's case(2) recently expounded.
(1) From the dissellt of Montogomery, J. in Workmen and Pipes v. Kentucky
(376) (see also United States Prison Law Edn. 1975, Vol. I, p. 624 .
• (2) Sunil Batra v. Delhi Administration [1980] 2 S.C.R. 557.
RAMESH KAUSHIK v. B. L. VIG (Krishna Iyer, !.) 933,.

To reform and deter the criminal and to work out that process geared
to social defence, the conviq is cast;into Prison-not[to make him more
hardened, more brutal, more cunning and dangerous to society. This
raison d'etre of penological institutions in our[Gandhian country, with
humanism as basic to the constitutional scheme, cannot be written off
without peril. And so it is that, after reading the fea1ful
circumstances revealed in this case we focussed sharply, right at the
outset, the grave issue:, Is a prison term in Tihar Jail a post-graduate
training in tough crime? Is an invisible 'carser' mafia in defacto
y management of this penal institution? Should every sentencing judge,
high and low, hang his helpless head in frustration and humiliation
becanse institutional aberrations and personnel perversions have
sullied and stultified the justice of his sentence? c
We have been told by counsel for the State that several hundreds·
of VIPs have (ceremonially) visited and, of course, complimented
the jail management. These conducted tours cannot, in themselves,
contradict the contention that this campus of correction has degenerated
into a human zoo. We keep an open mind and examine the facts bnt
must confess that the Tihar Jail has come up for unhappy judicial
notice too often in the past. We must also stress that the human
rights of common prisoners are at a discount and, in our Socialist
Republic, moneyed 'B' class convicts operate to oppress the humbler
inmates, Can there be inequality in prison too on the score of social
and financial status?, Bank robbers in 'B' class because they E
are rich by robbery and nameless little man in 'C' class
because they are only common Indians! Article 14 is suffocated if
this classification is permitted, and yet that according to rule itself,
is prevalent as this Court has even in earlier cases pointed out. This ,
Court must act, will act, to restore the rule of law am! respect the
residual fundamental tights of any harassed petitioner. F

We are aware that general charges and sweeping complaints
may tarnish innocent officers. We do not intend to find fault with any
until proof is forthcoming. We are conscious 'that correctional orien-
tation and cautious humanization have changed the attitudes of
many jail officials. To blame them is beyound our purpose or power G
but to protect the caged humans from torture, gross or subtle,
beyond what the law permits is our function, indeed, our duty.
From this perspective we may rapidly suryey the circumstances and
mould the reliefs.
Prison Jurisprudence, developed through case-law and derived Jl
from constitutional law, already exists. As a jurisdictional matter
and background-setter we may briefly refer to some of these aspects
934 SUPREME COURT REPORTS [1980] 3 S.C.R.

before we discuss the controversial questions. In the Sunil Batra
Case(I) the Constitution Bench brushed aside the 'hands off prisons'
doctrine, upheld the fundamental rights of prisoners, though circums-
cribed severely by the reality of lawful custody. Desai, J., speaking for
three of his colleagues and broadly concurring with the fourth
clarified two positions (a) that fundamental rights did not forsake
.B prisoners, and (b) tkat the penological purpose of sentence was, im-
portantly, reformatory, even though deterrent too. In a later case,
Suni/ Batra v. Delhi Administration (supra) another bench explained:
The court has a continuing responsibility to ensure that the
constitutional purpose of the deprivation is not defeated by . .........,
\

the prison administration. In a few cases, this
validation of judicial invigilation of prisoners' condition has been
voiced by this Court and finally reinforced by the Constitution
Bench in Batra (supra) (2).

The Court need not adopt a "hands off"[attitude ... .in regard
.D to the problem of prison administration. It is all the more so
because a convict is in prison under the order and direction of
the Court.

Under the caption "Retention of Authority over Prisoner by Sen-
tencing Judge" (Krantz notes) (3),
..E. As noted by Judge Lay in a Judicial Mandate, Trial Magazine
(Nov.-Dec. 1971) at p.15
It should be the responsibility of the court in imposing the sen-
tence to set forth as it would in any equitable decree, the end to
be achieved and the specifics necessary to achieve that purpose .
.F If then, we are to have accountability in the execution of the
sentence, courts must make clear what is intended in the imposi-
tion of the sentence. Every sentence should be couched in terms
similar to a mandatory injunction. In this manner, the penology
system is to be held to account if the government does not faith-
fully execute the order. '

In other words, the sentencing court should be required to re-
tain jurisdiction to ensure that the prison system responds to the
purposes of the sentence. If it does not, the sentencing court
p· could arguably have the authority to demand compliance with
;H (I) Suni/ Batra v. Delhi Administration [1979] l S.C.R. 393.
(2) [1980] 2 S.C.R. 557.
(3) Sheldon Krantz : Corrections and Prisoners' Rights P. 274-75.
' IlAMESH KAUSHJK v. B. L. VIG (Krishna Iyer, J.) 935

the sentence or even order the prisoner released for non- A
compliance.
Whether inside prison or outside, a person shall not be deprived
of his guaranteed freedom save by methods, 'right, just and fair'.
A long discussion covering American rulings, U .N. specifications
.of the Standard Minimum Rules for Prisons and the implications of B
Arts. 21, 19 and 14 read in the light of ManekiJ Gandhi's case(I) led
this Court in Suni/ Batra (2) (supra) to accent on the habilitative value
contained in Rule 58 of the
International Standard Minimum Rules :
r The purpose and justification of sentenee of imprison-
ment or a similar measure deprivative of liberty is ultimately.
c
to 'protect society against crime. This end can only be achiev·
ed if the period of imprisonment is used to ensure, so far as
possible, that upon his return to society the offender is not
only willing but able to lead a law-abiding and Self-supporting
life. D

The action-oriented conclusion in that judgment, which bind the
State, need re-emphasis since die-hard, practiees Persist. We rePeat
some of them here : (2)
Lawyers nominated by the District Magistrate, Sessions
Judge, High Court and the Supreme Court will be given all
facilities for interviews, visits and confidential communication
with prisoners subjeet to discipline and Security considerations.
This has root~ in the visitorial and supervisory judicial role.
The lawyers so designated shall be bound to make Periodical
visits and records and report to the coneerned court results
which have relevance to legal grievances.
Within the next three months, Grievance Deposit Boxes
·shall be maintained by or under the orders of the District Magis-
trate and the Sessions Judge which will be OPened as frequently
as is deemed fit and suitable action taken on complaints made.
Access to such boxes shall be afforded to all prisoners. G
District Magistrates and Sessions Judges shall, personally
or through surrogates, visit prisons in their jurisdiction and
afford effeetive opportunities for ventilating legal grievanees,
shall make expeditious enquiries there into and take suitable
remedial action. In appropriate cases reports shall be made B
(I) [1978] I S.C.C. 248
(2) Suni/ Batra v. Delhi Administration [1980] 2 S.C.R. 557

.,,
936 SUPREME COURr ltEPORTS [1980] 3 S.C.R'.

A to the High Court for the latter to initiate, it found necessary,
habeas action.
xx xx xx
No solitary or pun\tive cell, no hard labour or dietary change
as painful additive, no other punishment or denial of privi-
B leges and amenities, no transfer to other prisons with iJenal
consequences, shall be impoSed ~thout judicial appraisal
of the Sessions Judge and where such intimation, on account
of emergency, is difficult, such information shall be given within
two days of the action. ·
c xx xx xx
The State shall take early steps to prepare in Hindi a
Prisoner's Handbook and circulate copies to bring legal aware-
ness home to tbe inmates. Periodical jail bulletins stating
how improvements and habilitative programmes are brought
into the prison may create a fellow-ship which will eaSe ten-
D
sions. A prisoners' wall paper, which will freely ventilate-
grievances will also reduce stress. All these are implementary
. of s.61 of the Prisons Act.
xx xx xx
The prisoners' rights shall 'be protected by the court by
E
its writ jurisdiction plus contempt power. To make this juris-
diction viable, free legal services to the prisoner programmes
shall be promoted by professional organisations recogni&ed
by the Court such as for e.g. Free Legal Aid (Supreme Court)
Society. The District Bar shall, we recommend, keep a cell
F for prisoner relief.
How far have these directives been implemented, especially to the !""'JI
extent they affect the present petitioner? We will examine it pre- - , t
sently, but before that, some materials about this jail and its way of
life is needed to appreciate where the truth lies, as between assertiou. !
and denials.
G
In the 2nd Sunil Batra case(l)--- the Superintendent of the Tihar
Jail testified :
A number of prisoners in the Tihar Jail are habitual offen-
y
ders, professional .criminals who have been inmates of the Jail
H from time to time. . . . It has been noticed that these types of'
prisoners have been able to develop a certain rapport with some
(1) [1980] 2 S.C-R. 557
RAMESH KAUSHIK v. B. L. VIG (Krishna Iyer, J.) 937

of the lower staff in the jail namely Head Warders, Warders A
etc. and obtain certain facilities illegally including smuggling
of number of items e.g. drugs etc. for their use. It may also
submitted that to check smuggliug 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 ...... It may also B
be mentioned that due to paucity of accommodation, the said
jail is occupied by double the number of prisoners than it is other-
wise authorised.
In that very case, the Court bad occasion to observe, on the materials
present there : c
"Since many officers busy themselves with production
of prisoners in court, the case of the Superiutendent is that the
other prisoners "try to do mischief, make thefts of other prisoners
who go to work, smuggle things and even resort to assaults."
The crowning piece is that the jail officials themselves are D
allegedly in league with the criminals in the cells. That is,
there is a large network of criminals, officials and non-officials
in the house of corrections Drug racket, alcoholism, smuggling,
violence, theft, unconstitutional punishment by way of solitary
cellular life and transfer to other jails are not uncommon."
E
In that case, Dr. Chitale, who appeared for the prisoner, brought to
our notice a literary work written by Shri Kuldip Nayar "In Jail"
where the author bas recorded I: (1)
" ........ one could get as much money as one wanted from
outside against a price. There was a money order and mail
service that perhaps was more dependable than what the postal F
department could 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 collectiug char.ges-
G
tbirty-three per cent was the prescribed "money-order charg-
es." ...... Dharma Teja, the shipping magnate who served
his sentence in Tihar, for instance, had thousands of TUPeeS
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 eooler in his cell, a H
. radio-cum-record player set aud even the facility of using the
- ( l ) pp:-30-34.
21-463SCI/80
938 SUPREME COURT REPORTS [1980] 3 S.C.R.

A phone ...... Haridas Mundhra, a business man who was
convicted of fraud, was another rich man who spent some
time in Tihar. Not only did he have all the facilities, but he
could also go out of the jail whenever he liked, at times he
would be out for several days and travel even up to Calcutta.
All this, of course, cost a Jot of money. An even richer priso-
B ner was Ram Kishan Dalmia; he spent most of his jail term •
in hospital. He was known for his generosity to jail autho-
rities, 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
..,
..

c Moti Mahal and their whisky from Connaught Place. They
had not only wine but also women. "Babu ji, 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 wus so well organised aud so systema-
D tic 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."
This backdrop to the Tihar lifestyle is disturbing enough. (Have )..
E other States their Tihars ?) The writ jurisdiction of this Court must
be equal to the needs of human rights and human wrongs. Relying
upon legal literature in the American jurisdiction especially the
crystallised statement in American jurisprudence, this Court has
laid down : (•)
F The writ is not and never has been a static, narrow forma- ~
listic remedy. Its scope has grown to achieve its purpose- 1
the production of individuals against erosion of the right to i.
be free from wrongful restraints on their liberty.
Jura\ perspectives, thus set, make the Court an activist instrument of
Jail Justice. We proceed on this basis to a consideration of the issues
G raised before us. But to clothe theSe issues with flesh and blood and
to make abstract poignancies into concrete problems, We may excerpt
at random some of the allegations made by the petitioner, perhaps,
by mixing fiction with fact. Even after making a liberal allowance
for adulteration and distortion, the miasmatic residue presses upon
our judicial conscience to use the court processes and restore basic
II
humanism inside this penal institution where sentencees, punitively
(I) !43 F. 2d. 443 at 445 quoted in [1980] 2 S.C.R. 557
RAMESH KAUSH!K v. B. L. VIG (Krishna Iyer, J.) 93 9

sent by court, are subjects to unbearable tensions and torments on A
their physical and moral fibre, thanks to the prison milieu being what
it is. The petitioner states that he had sent to one of the Judges of
this Court* complaints about "atrociously unwholesome". treatment
in the jail, on September 21, 22 and 24, 1979. He alleges that he had
lodged a complaint against the Superintendent with the vigilance De·
partment of the Delhi State. His further version is better projected B
by quoting a few paragraphs from his own petition :
· That the Superintendent and Deputy Superintendent,
under a severe threat of dire consequences and infliction of
punitive torture, pressured the petitioner into signing an affi·
davit, denying having lodged any such complaints in the
Supreme Court, the Delhi Administration and the Vigilance
Department.
That, judging from the incidents of corruption, torture
and drug-distribution, there can be no two opinions a~ut the
Superintendent and Deputy Superintendent, brought from the
D
adjoining province of Haryana, performing only in a manner
of predators. Torture and drug-distribution are merely the
means to corruption to achieve their ultimate end.
That there is a foreign convict confined in the Tihar Jail,
along with a woman, who he claims to be his wife. They are
--J. both wanted by the Interpol. This man's criminal biography E
has been published in two books, written by foreign authors,
wherein the criminal exploits of this criminal are admitted
facts. He performs in the Tihar Jail as though he is the vir-
tual administrator thereof. He retains a portable tape recor-
der, strapped of his calf, wherein he has filled incriminating
, ~evidence against the Superintendent and the Deputy Superin- F
l. :endent. By virtue of this black-mailing hold upon them he
) enjoys the following privileges :
(a) Free movements all over the jail compound from his own
place of confinement in Ward 2.
G
(b) At least a dozen visits are made by him daily to the B
class Ward 14. Here he holds periodic conferences to
plan his furtive strategy in company with three intimate asso-
ciates-all co-accused in the six-lacs Bank Van Robbezy Case.
(c) The petitioner has himself seen the tape recorder kept
hidden by him and his B Class criminal associates. H

;; •Krishna Iyer, J.
940 SUPREME COURT IUIPORTS [1980] 3 S.C.R,

A (d) This foreigner is especially encouraged. and protected by
the Superintendent and Deputy Superintendent. He can
be seen visiting these offic.ers and holding private conforences in
the private retiring rooms at the back of their offices almost
daily.

B (e) So much so, that the Deputy Superintendent even allows
this foreign-convict to consummate sexual intercourse in his
private back-room from time to time-the Deputy Su-
perintendent performing as though he were this foreign-
convict's pimp.
(f) Naturally, for conceding such and many more extra faci-
c lities, both the Superintendent and Deputy Superintendent
charge heavy amounts from his foreign convict, who · has
now struck rich after the publication of his two books. ·
'B' Class status for prisoners 1s, going by averments in the petition,
a pamperiug process much abused by officials and, in a 'class' culture,
D obnoxious to the Constitution. Equality before the law.cannot co-
exist with affluent black-guards being looked after with luxury and '
solicitude and lawly indigents being treated as paraiahs inside the
prison. There is reference in the. petition to the three dangerous
criminals involved in a big Bank Van Robbery Case being lodged in-
ward 14 as 'B' Class VIPs, who have, on top of other advantages,.
E certain facilities like being. }.._
"Specially. allowed the privilege of having two young
and handsome habitual drug-addicts locked in his cell at
night, to serve him as passive agents for the appeasment of his
homosexual lust, (e) has been provided with a TV set in his
F cell exclusively for his and his associates' entertainment, (f)
smuggled-in alcohol is being regularly consumed by. the so- ·--f ·
locked-together several prisoners in his cell, being rich, it is }
these so-locked,together associates who finance the drug-and- '-
alcohol racket.

G Another shocking allegation of corruption is that even from sen-
tencees undergoing rigorous imprisonment money is collected by high
officials
"for allotting hard labour (of soft types'/) in the course )<
of serving rigorous imprisonment and placing the convicts
in the general barraks or private cells."
H
The petitioner further complains of having been physiCljllY assault-
ed and the averments relating to it run thus :
RAMESH KAUSHIK v. B. L. VIG (Krishna Iyer,/.) 941

That the agents appointed by the Superintendent and Dy. A
Superintendent to sell narcotics in the Tihar Jail; (written com-
plaint to this effect lodged with the Superintendent, who passed
the matter on far enquiry to the Dy. Superintendent, who in
turn took no disciplinary action) physically assaulted the peti-
tioner on December 25, 1979 and Janu11ry 6 and February
7, 1980. However, no action has so far been taken and the B
culprits, being the agents of the Superintendent and Dy. Su-
perintendent were skilfully shielded. In fact, the matter was
deliberately suppressed because of the involved personal finan-
cial interests of the officers.

Apart from these statements there are serious charges of mis- c
appopriation, corruption, bribery and the like and the artful strate-
gems adopted in that behalf. Shri .Markandeya contended that there
was truth in the allegation that mandrex, charas and opium are freely
ava1lable, thereby trying to establish that the sub-culture in the Central
Jail, far from being reformatory is de-formatory of the morals of the
D
prisoners. Indeed, many more things are mentioned in support of
the petition, including newspaper reports, of the vices of the jail. But
we are/not concerned in these proceedings with a general enquiry
into the jail affairs and, therefore, confine ourselves to what has bearing
on the ill-treatment of the petitioner.
E
It is basic fairness that we should not come to any conclusiop
without remembering the fact that detailed counter-affidavits have
been filed on behalf of the Superintendent and the Dy. Superintendent
with supportive materials calculated to exonerate them. Even so it
is fairly clear that many vices,. including drug rackets, occasional
violence, smuggling and trafficking in many other impermissible
F
.....-things, have a hospitable home in this penitentiary. The Adminis-
' tration has conscientious responsibility for the decency and dignity,
...l.1 . for correctional obligations and social hygiene inside prison houses
f and the time _is lo_ng overdue for a. th~rough overhaul. of the prison
·· management ID T1har. In an earlier Judgment, late ID 1979 (!W.P.
1009 of 1979), the Supreme Court had, in the strongest terms, stressed G
the imperative and urgent need for carrying out certain reforms and
added the imprimatur of the court's authority for certain directives
contained in Sun ii Batra's case. Shri Markandeya complained that
the injunctions of this Court have not been carried out while a con-
trary version is given by the Superintendent. While we express our
consternation at the deterioration of the conditions in Tihar Jail despite H

• its being in the capital city of the country, we are disturbed that no
major measure of reform has yet taken place in the prison order or,
I
~.
·'
942 SUPREME COURT REPORTS [1980] 3 S.C.R.

A for that matter, in the prison manual. Such indifference cannot deter
the writ of this court running into the prison and compelling compli-
ance, however tough the resistence, however high the officials.
Natural justiee and the limitations of court time persuade us to
avoid a detailed investigation into the charges and the defences, by us
B directly. We, therefore, adopt the alternative and more feasible
method of directing a judicial enqujry by the District & Sessions
Judge of Delhi who is a member of the Board of Visitors and whose
responsibilities in this behalf have been outlined by us in both the
Simi! Batra cases.
The petition contains specific grievances of physical assault and ·
c psychic torture, of tense atmosphere and delinquent pressure for
which some 'B' class prisoners and superior officers are responsible.
This matter has to be investigated. Furthermore; iu the Suni/ Batra
case (Supra), precisely to obviate the pernicious potential of prison
torture, remedial mechanics had been worked out, formulated and
translated into mandates. Whether these have been complied with,
D
and if not, why not, require to be enquired into. When this Court
issues a writ recusant parties will have to pay the penalty for non-
compliance. This means, the violations and violators will have to be
identified after due investigation. Having regard to all these instruc-
tions we make the following directions :
E (1) The District and Sessions Judge, Delhi, will, within three
months from today, hold an open enquiry within the jail premises,
into the allegations contained in the petition of the prisoner Kaushik
and in the report submitted to this Court by Advocate, Shri Subodh
Markandeya.
F (2) He will further enquire, with specific reference to the charges
ofpersonal assault and compulsion for collaboration in canteen~
swindle and other vices made by the prisoner against the Superin- 'J 1
tendent and the Dy. Superintendent. . .1 ~
(3) He will go into the question of the directives issued in the
concluding portion of Sunil Batra's case (supra) with a view to ascer-
G tain whether these directions have been substantially complied with
and to the extent there is shortfall or default whether there is any
reasonable explanation therefor.
(4) Being a Visitor of the jail, it is part of his visitorial func-
tions for the Sessions Judge to acquaint himSelf with the condition
H of tension, vice and violence and prisoners' grievances. He will take
. this opportunity to enquire into tho~e aspects also with a view to
suggest remedial action.
RAMESH KAUSHIK v. B. L. VIG (Krishna Iyer, J.) 943

The result of this inveStigation will be crystallised in the shape A
of findings, followed by specific instructions with a view to See that
the petitioner and others like him are not burdened by additional ·
aeerbities and harsher pressures than a legal,sentenee of rigorous im·
prisonment geared to reformation and intended for deterrenee necessari·
ly implied. The Sessions Judge will also give a specific time to the jail·
authorities for carrying out his directives, and after the period for B
compliance is over, will make a fresh visit to verify whether those
mandates have been fulfilled. In the event of non-fulfilment, a report
will be made to this Court before September 30, 1980 whereupon
appropriate action to enforce compliance will be taken by this Court
in its jurisdiction.
c
We may make it perfectly clear that the Sessions Judge will
allow any person or official who wants to make any representations to
him in the course of his enquiry to meet him publicly or in camera,
but o.utsiders and strangers will not be allowed exeept Shri Subodh
Markandeya or Government's Counsel. Of course, it will be open to
the Judge if he considers that such a stepwilladvancetheinterestsof D
justice to allow any other public organisation or legal aid society.

The sessions judge, whom We have charged with the responsibi-
lity for enquiry, will make constructive suggestions to protect priso-
ner~· rights and to promote prisoners' habilitation and thus disprove
Oscar Wilde : E
. This two I know-and wise it were
If each could know the same-
That every prison that men build
is built with bricks of shame,
And bound with bars lest Christ should see F
How men their brothers main .
• • • • •
·The wiles! deeds like poison weeds
Blowm well in prison air :
It is only what is good in Man'
G
That wastes and withers there.
(The Ballad of Reading Gaol)
'
Jn this context, the focus of the Sessions Judge should not be
solely upon the warden and warders ofthejail, but also on the medical H
offieers, whose connivance may, perhaps, explain Jiow drugs like
mandraix are officially indented.
944 SUPREME COURT REPORTS [198Q] 3 S.C.R.

A Our immediate concern is to protect the petitioner and others
of his ill-from physical assaults by fellow-prisoner or warders, from
moral stress by being forced;to assist in falsification and manipulation
for canteen sales misappropriation, from discrimination in being sub-
jected to hard labour of a harsh type if he does not oblige the 'B'
class 'bosses' or senior officer's, from pressure against transmitting
B grievances to the Sessions Judge through the Grievance Box ordi- (
rectly to this Court bf.post. But remedial perspectives and procedures, ,
to be successful, must be holistic, collective and not individualistic.
So, the human canvas ha' to be spread wider, the ·diagnosis has to
be deeper and the recipe must senitize the environ.
."'
I.
c The crisis in our prisons, the collapse of values in these
campuses, the inner tension 'red in tooth and claw', the
-...,
corruption that makes for sensual indulgences, the barbarities
that harden the convicts and never heal them-all these processes
can he reviewed and humanization resorted if only if, our philosophy
~owards crime and punishment change. If vengeance is the spirit
D of punishment, violence will be the prison way of life. That is why
Karl Menninger in his "The Crime of Punishment" exposes this
folly:
...... Punishment is in part an attitude, a philosophy. It is the
deliberate infliction of pain in addition to or in lieu cif penalty
.... What is gained for anybody when a man who has forged a
E check for sixty dollars is sentenced to the penitentiary for
thirty years •... The judge's rationalization was that the man
had offended in this way twice before (!)and had served shorter
sentence without reforming :
'll
...... This is not penalization. This is not correction. This
F is not public protection. This is not reformation. It is sadistic
persecution of the helpless at public expense, justified by the ~. .. 1 ':. ··
punishment principle. ·
From this new angle, the hospifal-setting approach to p~isons
Gandhiji advocated, the therapeutic tbuch penologists argue for and
'"'
.<
l
t. .

;,,

G
the raising of the level of consciousness, institutional and individual, l
of officials and prisoners-all these woven into a composite strategy- ·"
may well be the highway to higher awarensss and socialisation of
feeling inside correctional homes. This technology takes us to method
like transcendental meditation, self-expression through work, facili-
ties for studies and artistic development. The warden's drill the
H warder's billy or the VIP's 'good chit' cannot work magic.
Shri Markandeya's further report substantiates the thesis we
have set out that prison violence and ~scalating criminality directly
RAKBSH KAUSHIK v. B. L. VIG (Krishna Iyer, J.) 945

ll.ow from the anti-rehabilitative strategies and counter-productive A
'life-style prevalent in the Tihar. The VIP criminals in league with
other prison toughs are alleged to have organised the beating up of one
prisoner. The part of the prison officials may or may not be direct,
·but is surely vicarious. Not until a transformation iri the awareness
t .of the top-brass, not until new techniques of instilling dignity and
mutual respect among the prisoners, not until a hospital setting and B
-curative techniques pervade the staff and the inmates, can there be any
human right conscious reformation in the Tihar prison. All that we
need say is that in the enquiry that we have directed the Sessions
Judge to hold this perspective will inform his interrogations and
investigations.
' 1"i' c
·~ We have drawn the broad lines indicative] of the direction
of correction and leave it at that. The fundamental fact of prison
reforms comes from our constitutional recognition that every pri-
-soner is a person and personhood holds the human potential which,
if unfolded, makes a robber a Valmiki and a sinner a saint. ·
D

S.R. Petition allowed. ,

·•