Holding

The Court held that the caste‑based provisions in the State prison manuals and the related definition of "habitual offender" violate Articles 14, 15, 17, 21 and 23 of the Constitution and are therefore unconstitutional.

Summary

Journalist Sukanya Shantha filed a writ petition alleging that various State prison manuals sanction caste‑based discrimination in the division of labour, segregation of barracks and the classification of "habitual offenders", thereby violating Articles 14, 15, 17, 21 and 23 of the Constitution. The Court examined whether such provisions constitute direct or indirect discrimination, untouchability, forced labour and an unreasonable classification lacking intelligible differentia and rational nexus. It held that the caste‑based provisions and the vague definition of "habitual offender" are unconstitutional, as they perpetuate stereotypes, deny dignity and amount to forced labour. The Model Prison Manual 2016 and the Model Prisons and Correctional Services Act 2023 were found inadequate to curb these practices. Consequently, the Court directed all States and Union Territories to amend their prison manuals, delete caste columns in registers, align the definition of "habitual offender" with state legislation, and implement supervisory mechanisms, disposing of the petition.

Issues considered

The constitutionality of State prison manual provisions that assign labour and segregation based on caste under Article 14.
Whether such provisions amount to direct or indirect discrimination prohibited by Article 15(1).
Whether the provisions constitute a practice of untouchability in violation of Article 17.
Whether the provisions infringe the right to life and dignity under Article 21.
Whether the caste‑based allocation of menial work amounts to forced labour prohibited by Article 23.
The validity of the definition of "habitual offender" in prison manuals.
The adequacy of the Model Prison Manual 2016 in addressing caste discrimination.
The sufficiency of the Model Prisons and Correctional Services Act, 2023 in prohibiting caste‑based discrimination.

Legislation cited

Subjects

Caste-based discriminationPrisonsState Prison ManualsDivision of manual labourSegregation of barracksDiscrimination against prisoners belonging to denotified tribes and habitual offendersModel Prison Manual, 2016Discrimination in kitchensHabitual OffendersDenotified tribes in prisonsModel Prisons and Correctional Services Act 2023Caste columnCaste in undertrial and/or convicts’ prisoners’ registersGuidelines issued in Arnesh Kumar’s case and Amanatullah Khan’s caseMarginalized castesHigh castesDirect discriminationUntouchabilityCaste prejudicesCaste based division of labour/workIntelligible and rational principle of classificationRational nexusRehabilitationSegregating prisonersSocial hierarchyNon-habitual prisonerOccupational immobility of prisonersRestriction on labourDiscrimination and continued targeting of members of Denotified TribesClassification of habitual offenderRole of Legal Service Authorities in PrisonsRight to free legal aidNon-Discrimination u/Art.15Ban on untouchability in Art.17Right to live with dignityProhibition of forced labour and human traffickingCriminal Tribes ActRepeal of Criminal Tribes ActPrevention of discrimination and atrocitiesJurisdictional jurisprudence on social protection in Post-Independence IndiaManual ScavengersPrison managementWomen inmatesHabitual/recidivist prisonersSubstantive equality and institutional discriminationSuo motu cognizanceIn Re: Discrimination Inside Prisons in India

Judgment

[2024] 10 S.C.R. 493 : 2024 INSC 753

Sukanya Shantha
v.
Union of India & Ors.
(Writ Petition (C) No. 1404 of 2023)
03 October 2024
[Dr Dhananjaya Y Chandrachud,* CJI, J.B. Pardiwala
and Manoj Misra, JJ.]

Issue for Consideration
Matter pertains to caste-based discrimination in the prisons in the
country.

Headnotes†
Constitution of India – Arts.14, 15, 17, 21, and 23 – Prisons
in India – Caste-based discrimination – Writ petition seeking
directions for repeal of the offending provisions in State
Prison Manuals – Petitioner’s case that various State Prison
Manuals sanction unconstitutional practices, violative of
Arts 14, 15, 17, 21, and 23; that caste-based discrimination
continues to persist in the prisons with respect to division
of manual labour; segregation of barracks; and provisions
discriminate against prisoners belonging to denotified tribes
and “habitual offenders”; that the Model Prison Manual, 2016
does not address the impugned provisions related to caste
discrimination; and sought direction to the Home Departments
of the States to clarify the definition of “Habitual Offenders”
in their respective Prison Manuals so as to prevent its misuse
against the denotified tribes in prisons:
Held: Impugned provisions are unconstitutional for being violative
of Arts.14, 15, 17, 21, and 23 – In accordance with the instant
judgment, all States and Union Territories to revise their Prison
Manuals/Rules within the stipulated period; that Union government
to make necessary changes, to address caste-based discrimination
in the Model Prison Manual 2016 and the Model Prisons and
Correctional Services Act 2023; that references to “habitual
offenders” in the prison manuals/Model Prison Manual to be in
accordance with the definition provided in the habitual offender
legislation enacted by the respective State legislatures; that all other

* Author
494 [2024] 10 S.C.R.

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references or definitions of “habitual offenders” in the impugned
prison manuals/rules unconstitutional; that the “caste” column and
any references to caste in undertrial and/or convicts’ prisoners’
registers inside the prisons to be deleted; that the Police to follow
the guidelines issued in Arnesh Kumar’s case and Amanatullah
Khan’s case to ensure that members of Denotified Tribes are
not subjected to arbitrary arrest; that this Court to take suo motu
cognizance of the discrimination inside prisons; that all States and
the Union government to file a compliance report on this judgment,
on the first hearing of the suo motu petition; and that NALSA to file
joint status report after compiling reports of inspection conducted
by DLSAs and Board of Visitors and of SLSAs before this Court.
[Paras 161-231]
Prisons – Prison Manuals – Plea that Prison Manuals cast
disparate burdens on prisoners based on their caste-identity,
if violative of Art.14 – Caste, if an intelligible and rational
principle of classification and has a rational nexus with the
object of the classification:
Held: Caste can be an intelligible principle of classification as it
has been used to create protective policies for the marginalized
castes – Constitution recognises caste as a proscribed ground of
discrimination u/Art.15(1), and envisions a society free from caste-
prejudices – However, caste cannot be a ground to discriminate
against members of marginalized castes – Any use of caste as a
basis for classification must withstand judicial scrutiny to ensure
it does not perpetuate discrimination against the oppressed
castes – While caste-based classifications are permissible
under certain constitutional provisions, they are strictly regulated
to ensure they serve the purpose of promoting equality and
social justice – Classification of prisoners has been considered
both from the point of view of security and discipline as well as
reform and rehabilitation – However, there is no nexus between
classifying prisoners based on caste and securing the objectives
of security or reform – Limitations on inmates that are cruel, or
irrelevant to rehabilitation are per se unreasonable, arbitrary
and constitutionally suspect – Differentia between inmates that
distinguishes on the basis of “habit”, “custom”, “superior mode
of living”, and “natural tendency to escape”, is unconstitutionally
vague and indeterminate – Objective of classification for labour
for treatment and for conferment of entitlements such as
[2024] 10 S.C.R. 495

Sukanya Shantha v. Union of India & Ors.

remissions has to be maximisation of the reformatory potential
of prisons – Such classification should be based solely on the
correctional needs of the individual prisoner – Thus, Rules that
discriminate among individual prisoners on the basis of their
caste specifically or indirectly by referring to proxies of caste
identity are violative of Art. 14 on account of invalid classification
and subversion of substantive equality – Constitution of India –
Arts.14, 15(1). [Paras 164-170, 196]
Prisons – Prison Manuals – Plea that provisions thereunder,
discriminate against marginalized castes and act to the
advantage of certain castes, by assigning cleaning and
sweeping work to marginalized castes, while allowing the
high castes to do cooking, which is direct discrimination
u/Art.15(1):
Held: Manuals/rules suffer from indirect discrimination by using
broad terms which act to the disadvantage of the marginalized
castes – Phrases such as “menial” jobs to be performed by castes
“accustomed to perform such duties” may appear to be facially
neutral, but refer to marginalized communities, given the history
of systemic discrimination against them – Such indirect usages
of phrases, which target the so-called ‘lower castes’, cannot be
permitted in the constitutional framework – Phrases, carry an
embedded bias that disadvantages marginalized communities by
reinforcing historical patterns of labour based on caste – These
provisions disproportionately harm marginalized castes, perpetuate
caste-based labour divisions and reinforce social hierarchies –
Manuals/rules are also based on and reinforce stereotypes
against the marginalized castes as also denotified tribes – These
stereotypes not only demean and stigmatize marginalized
communities and denotified tribes but also serve to maintain and
legitimize a social hierarchy that goes against the constitutional
values of equality – Tendency to treat members of denotified
tribes as habitual to crime or having bad character reinforces a
stereotype, which excludes them from meaningful participation in
social life – Discrimination against denotified tribes is prohibited
under the ground of “caste” in Art. 15(1), as the colonial regime
considered them as belonging to separate hereditary castes –
Thus, the impugned provisions violative of Art. 15 – Constitution
of India – Art.15. [Paras 171-175, 196]
496 [2024] 10 S.C.R.

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Prisons – Prison Manuals – Plea that provisions thereunder,
“practice” of untouchability, division of work on the basis
of caste, is a practice of untouchability prohibited under the
Constitution:
Held: Prison manuals allot tasks of a barber to individuals from
a certain caste, while sweeping work is allowed to Mehtar/Hari/
Chandal or similar castes – This is a caste-based delegation of
work based on the perceptions of the caste system that certain
castes are meant to do jobs of sweeping – Rule that a prisoner of
a high caste be allowed to refuse the food cooked by other castes
is a legal sanction by the State authorities to untouchability and the
caste system – Provisions that “men of wandering tribes” or “criminal
tribes” have a “strong natural tendency to escape” or are by “habit”
accustomed to theft reflects a stereotype that has its basis in the
colonial understanding of India’s caste system – These stereotypes
not only criminalize entire communities but also reinforce caste-
based prejudices – They resemble a form of untouchability, as
they assign certain negative traits to specific groups based on
identity, perpetuating their marginalization and exclusion – Once
labelled a criminal tribe, individuals from these communities faced
systematic discrimination in employment, education, and social
services – Provision that “non-habitual” prisoner is “by social
status” and “habit of life accustomed to superior mode of living”
is another caste-based construct – It is only an injustice but also
reinforced existing power structures, ensuring that marginalized
groups were trapped in cycles of poverty and discrimination,
unable to transcend the stigmatization they faced – Thus,
impugned provisions violative of Art.17 – Constitution of India –
Art.17. [Paras 181, 183-184, 196]
Prisons – Prison Manuals – Right to overcome caste prejudices
u/Art.21 – Provisions under Prison Manuals, fostering the
antiquated notions of fitness of a particular community for a
certain designated job, reinforcing occupational immobility
of prisoners belonging to certain castes, if violative of Art.21:
Held: Art.21 provides for the right to overcome caste barriers
as a part of the right to life of individuals from marginalized
communities – Protection provided by Art.21 can be seen as
a constitutional guarantee that individuals from marginalized
communities should have the freedom to break free from these
traditional social restrictions – It extends beyond mere survival to
[2024] 10 S.C.R. 497

Sukanya Shantha v. Union of India & Ors.

ensure that they can flourish in an environment of equality, respect,
and dignity, without being subjected to caste-based discrimination
which stifles their personal growth – When caste prejudices
manifest in institutional settings, such as prisons, they create
further restrictions on the personal development and reformation
of individuals from marginalized communities – When Prison
Manuals restrict the reformation of prisoners from marginalized
communities, they violate their right to life – When prisoners from
marginalized communities are subjected to discriminatory practices
based on caste, their inherent dignity is violated – Thus, the
impugned provisions violative of Art.21 – Constitution of India –
Art.21. [Paras 185-188, 196]
Prisons – Prison Manuals – Plea that provisions as regards
caste-based division of labour/work, forced labour and violative
of Art.23:
Held: Persons from specific communities performing honourable
tasks, while those from marginalized communities are forced into
undesirable work leads to unfair distribution of labour within the
prison system – It perpetuates the idea that some individuals are
inherently suited to low-status labour based solely on their birth,
reinforcing deep-rooted caste inequalities – Imposing labour or
work, which is considered impure or low-grade like cleaning latrines
and sweeping work, upon members of marginalized communities
amounts to forced labour u/Art.23 – Forced to undertake the menial
tasks simply because of their caste background robs prisoners of
the element of choice that other prisoners enjoy and constitutes
form of coercion – Art.23 was incorporated to protect the members
of oppressed castes from exploitative practices, where their
labour is taken advantage of, and without any adequate return –
However, prison rules, by exploiting labour of the oppressed castes,
perpetuate the same injustice to guard against which Art.23 was
inserted – Assigning labour based on caste background strips
individuals of their liberty to engage in meaningful work, and denies
them the opportunity to rise above the constraints imposed by their
social identity – Thus, impugned provisions violative of Art.23 –
Constitution of India – Art.23. [Paras 189, 191-196]
Prisons – Prison Manuals – Plea as regards existing
discrimination and continued targeting of the members of the
Denotified Tribes, and classification of “habitual offender”:
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Held: Classification of “habitual offender” emerged prior to repeal
of the Criminal Tribes Act – After repeal several States enacted
new habitual offender laws in their jurisdictions – Most States
adopted an identical definition of “habitual offenders”, referring to
a person who has been sentenced on conviction for at least three
occasion to “a substantive term of imprisonment” for any of more
of the specified offences – However, in some States, they were
used to refer to members belonging to criminal tribes/denotified
tribes, and applying that logic, several Prison Manuals/Rules have
also referred to “habitual offender” to mean members of Denotified
Tribes or wandering tribes, which cannot be accepted – Whole
community ought not to have either been declared criminal tribe
in the past or habitual offender in the present – Classification
of “habitual offender” has been used to target members of
Denotified Tribes – State governments to reconsider the usage of
various habitual offender laws-whether such laws are needed in
a constitutional system – In the meantime, definition of “habitual
offender” in the prison manuals/rules to be in accordance with
the definition provided in the habitual offender legislation enacted
by the respective State legislature, subject to any constitutional
challenge against such legislation in the future – In case, there
is no habitual offender legislation in State, references to habitual
offenders directly or indirectly, struck down as unconstitutional –
Union and State governments to make necessary changes in the
prison manuals in line with this judgment. [Paras 213-219]
Prisons – Prison reforms – Role of Legal Service Authorities
in prisons:
Held: In order to ensure that the fundamental rights of prisoners
are not violated, role of legal services authorities crucial – Right to
free legal aid and inspection by Legal Services Authorities including
by a Board of Visitors, essential ingredient. [Paras 220, 227]
Prisons – Prison Manuals – History of “Caste” in Prison
Manuals – Stated. [Paras 151-160]
Constitution of India – Nature of:
Held : It is an emancipatory document – It provides equal citizenship
to all citizens of India – Constitution is not just a legal document,
but gave a dignified identity to all citizens of India – It eliminated
the legality of caste-based discrimination, thereby raising the human
dignity of the marginalised communities – Constitution mandates
[2024] 10 S.C.R. 499

Sukanya Shantha v. Union of India & Ors.

the replacement of fundamental wrongs with fundamental rights –
Through its provisions, it displaced a centuries-old caste-based
hierarchical social order that did not recognize the principle of
individual equality – It negated the ideals of social hierarchy –
Constitution is the embodiment of the aspirations of the millions
of caste-oppressed communities, which hoped for a better future
in independent India – Chapter on fundamental rights places the
provisions on equality, non-discrimination, equality of opportunity,
affirmative action, abolition of untouchability, freedom of speech
and expression, right to life, and prohibition of forced labour
together – Constitution thus complements the basic principles of
constitutionalism with provisions designed specifically to address
India’s social problems – Constitution thus stands as a testament
to the fight against historical injustices and for the establishment
of an egalitarian social order – It aims to prevent caste-based
discrimination – It empowers the State to enact appropriate
legislation or take executive measures to tackle caste-based
discrimination. [Paras 14, 15, 17, 23]
Constitution of India – Art. 14 – Classification under –
Constitutional standards:
Held : Constitution permits classification if there is intelligible
differentia and reasonable nexus with the object sought –
Classification test cannot be merely applied as a mathematical
formula to reach a conclusion – Challenge u/Art.14 has to take into
account the substantive content of equality which mandates fair
treatment of an individual – In undertaking classification, a legislation
or subordinate legislation cannot be manifestly arbitrary, courts must
adjudicate whether the legislature or executive acted capriciously,
irrationally and/or without adequate determining principle, or did
something which is excessive and disproportionate – In applying
this constitutional standard, courts must identify the “real purpose”
of the statute rather than the “ostensible purpose” presented by the
State – Provision can be found manifestly arbitrary even if it does
not make a classification – Different constitutional standards have
to be applied when testing the validity of legislation as compared
to subordinate legislation. [Paras 25, 34]
Constitution of India – Art. 15 – Non-Discrimination under –
Interpretation:
Held: Discrimination is against citizens on any of several
grounds, including “caste” prohibited, because it has several
500 [2024] 10 S.C.R.

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repercussions on human lives – Discrimination arises due to a
feeling of superiority/inferiority, bias, contempt, or hatred against
a person or a group – Discrimination also lowers the self-esteem
of the person being discriminated against – It can lead to unfair
denial of opportunities and constant violence against a set
of people – Discrimination can also be done by continuously
ridiculing or humiliating someone, who is on the weaker side of
the social spectrum – Discrimination also includes stigmatizing
the identity or existence of a marginalized social group – Certain
anti-discrimination principles emerge u/Art.15(1) – Discrimination
can be either direct or indirect, or both – Facially neutral laws
may have an adverse impact on certain social groups, that are
marginalized – Stereotypes can further discrimination against a
marginalized social group – State is under a positive obligation
to prevent discrimination against a marginalized social group –
Discriminatory laws based on stereotypes and causing harm or
disadvantage against a social group, directly or indirectly, are not
permissible under the constitutional scheme – Courts are required
to examine the claims of indirect discrimination and systemic
discrimination. [Paras 35, 36, 48]
Constitution of India – Art.17 – Ban on untouchability –
Mandate of Art. 17:
Held: Art.17 provides that Untouchability is abolished and its
practice in any form is forbidden – Constitution puts an end to the
socially discriminatory practice of untouchability – Untouchability and
caste discrimination led to severe social and economic disabilities
and cultural and educational backwardness” of the untouchables –
Enforcement of any disability arising out of Untouchability is a
criminal offense as per the law – It is a provision that can be
implemented both against the State and non-state actors such as
the citizens – Moreover, the framers of the Constitution did not refer
to any religion or community in the text of the provision – Injunction
against untouchability u/Art.17 is further strengthened by taking
away the subject-matter from State domain and placing it as an
exclusive legislative head to Parliament – Art.17 enunciates that
everyone is born equal – There cannot be any stigma attached
to the existence, touch or presence of any person – From time to
time, to implement the mandate of Art.17, Parliament has enacted
several legislations which aim to provide dignity to the affected
individuals. [Paras 49-51, 54]
[2024] 10 S.C.R. 501

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Constitution of India – Art.21 – Right to live with dignity under:
Held: Dignity forms a part of the basic structure of the Constitution –
Dignity is the core which unites the fundamental rights because
the fundamental rights seek to achieve for each individual the
dignity of existence – Human dignity is a constitutional value and
a constitutional goal – Human dignity is intrinsic to and inseparable
from human existence – Implicit in this right u/Art.21 is the right
to protection against torture or cruel, inhuman or degrading
treatment – There also exists a close relationship between dignity
and the quality of life – Dignity u/Art.21 is an integral aspect of
life, which requires sustenance of one’s being to the fullest – Right
to dignity encapsulates the right of every individual to be treated
as a self-governing entity having intrinsic value – Nation must
prioritize human dignity ensuring that every person, regardless of
their background or identity, is able to live with respect, equality,
and freedom – Thus, human dignity forms the bedrock of social
justice and a just, compassionate society – Even prisoners are
entitled to the right to dignity – Jurisprudence which emerges on
the rights of prisoners u/Art.21 is that even the incarcerated have
inherent dignity – They are to be treated humanely and without
cruelty – Police officers and prison officials cannot take any
disproportionate measures against prisoners – Prison system
must be considerate of the physical and mental health of prisoners.
[Paras 55-58, 67]
Constitution of India – Art.23 – Prohibition of forced labour
and human trafficking under – Scope:
Held: Scope of Art.23 is wide, as it has left the term “begar”
undefined, and supplemented by the phrase ‘other similar forms’
of forced labour – Framers of the Constitution consciously left the
terms undefined so that future interpretation is not restrictive –
Intellectual background of Art.23 lies to facilitate the citizens in
exercising their fundamental rights – Exploitative socio-economic
practices can hinder the right to live a dignified life – Begar or
bonded labour was entrenched in India’s social system, against
which Art.23 makes a blow – Broad scope of Art.23 can be invoked
to challenge practices where no wages are paid, non-payment of
minimum wages takes place, social security measures for workers
are not adopted, rehabilitation for bonded labour does not happen,
and in similar unfair practices – State shall be held accountable
even in cases where the violation of Art. 23 is done by private
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entities or individuals – Art.23 can also be applied to situations
inside prisons, if prisoners are subjected to degrading labour or
other similar oppressive practices. [Paras 68, 69, 85]
Constitution of India – Constitutional interpretation –
Elucidated. [Paras 6-13]
Constitution of India – Future of substantive equality and
institutional discrimination – Caste Discrimination – Non-
eradication of the evil of caste discrimination, despite 75
years since independence:
Held: There is a need for a national vision for justice and equality,
which involves all citizens – Real and quick steps needed to
identify the instances of existing inequalities and injustices in
the society – Compassionate approach needed – Institutional
approach needed where people from marginalized communities
could share their pain and anguish about their future collectively –
There is a need to reflect and do away with institutional practices,
which discriminate against citizens from marginalized communities
or treat them without empathy – Identification of systemic
discrimination in all spaces by observing patterns of exclusion
needed. [Paras 228, 229]
Criminal Tribes Act – Scope and object – Repeal of Criminal
Tribes Act – Discussed. [Paras 97-113, 120-126]
Model Prison Manual 2016 – Scope and object of:
Held: Model Prison Manual 2016 was prepared “to reflect the
understanding behind constitutional provisions, Supreme Court
directions on prison administration – It covers a range of aspects
relating to prisons, including institutional framework, custodial
management, medical care, education and training of prisoners,
maintenance of prisoners, emergency situations, remission,
parole, premature releases and inspection of prisons, among other
things – Manual of 2016 also focuses on “prison computerization,
special provisions for women prisoners, after care services, rights
of prisoners sentenced to death, repatriation of prisoners from
abroad, and on prison correctional staff” – New chapters on legal
aid and inspection of prisons also incorporated. [Para 200]
Model Prison Manual 2016 – Manual of 2016 – Certain
ambiguities – Elucidation:
[2024] 10 S.C.R. 503

Sukanya Shantha v. Union of India & Ors.

Held: Manual 2016 suffers from several lacunae specifically as
regards its classification of “habitual offenders” and caste based
discrimination – Manual mandates the classification of undertrial
prisoners in three categories, wherein habitual offenders are
tagged along with “Gangsters, hired Assassins, dacoits, serial
killers/rapists/violent robbers, drug offenders, communal fanatics
and those highly prone to escapes/ previous escapees/attack on
police and other dangerous offenders/including those prone to
self-harm/posing threat to public order” – Habitual offenders are
tagged in the same category in relation to classification of high
risk offenders and for determination of the level of security for
effective surveillance – Similarly, regarding the women prisoners,
it has been provided that “Habitual offenders shall be separated
from casual prisoners” and that “Habitual offenders, prostitutes
and brothel keepers must also be confined separately” – Phrase
“habitual offender” in several prison manuals refers to people
from denotified or wandering tribes – Therefore, this definition
cannot be left to be interpreted and applied “in accordance with
the provisions of applicable law or rules” – Secondly, Manual
does not explicitly prohibit physical caste-based segregation
of prisoners, except in prisons for women – Third, the Manual
does not prohibit division of work on the basis of caste, except
in cooking – Manual 2016 should have taken into account such
practices and provided specifically for their prohibition – Fourth,
Manual does not refer to the provisions of the Prohibition of
Employment as Manual Scavengers and their Rehabilitation Act,
2013, which prohibit manual scavenging – Said Act has a binding
effect even on prisons – Fifth, caste-based privileges provided to
certain prisoners are not forbidden – No special treatment shall
be given to any group of persons or individuals on the basis of
caste in any scenario. [Paras 201-208]
Model Prisons and Correctional Services Act, 2023 – Scope
and object of – Problematic provisions:
Held: Model Act is a comprehensive document which covers all
relevant aspects of prison management-security, safety, scientific
and technological interventions, segregation of prisoners, special
provision for women inmates, taking appropriate action against
criminal activities of prisoners in the prison, grant of parole and
furlough to prisoners, their education, vocational training and skill
development, etc – It is for the respective State Governments
to make use of the guidance provided in the Act of 2023 and
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enact a suitable legislation on Prisons in their jurisdictions for
bringing improvement in prison management and administration
of prisoners – Model Act does not contain reference to prohibition
of caste-based discrimination – Provision to that effect should be
inserted in the Model Act – It should ban segregation or division
of work based on caste – Definition of “Habitual Offender” u/s.
2(12) that habitual Offender means a prisoner who is committed
to prison repeatedly for a crime also problematic – Phrase
“committed to prison repeatedly” vague and over-broad – It can
be used to declare anyone as a habitual offender, even if they
have not been convicted for a crime – Model Act also provides
that “habitual offenders” may be housed in a high security prison –
In addition thereto the Act creates a category of “recidivist”,
which means “any prisoner who is convicted for a crime more
than once” – “Habitual/recidivist prisoners” may be classified
separately and segregated in prisons – Also, Chapter IX dealing
with “Protection of Society from Criminal Activities of High-Risk
Prisoners, Habitual Offenders and Hardened Criminals”, seems
to be over-board. [Paras 209-212]
Social Protection – Scheduled Castes, Scheduled Tribes
and Denotified Tribes – Prevention of discrimination and
atrocities – Jurisprudence on social protection in Post-
Independence India – Stated. [Paras 127-144]
Suo motu – Suo motu cognizance – Initiation of suo motu
cognizance of the discrimination inside prisons on the ground
of caste, gender, disability – Case to be titled as In Re:
Discrimination Inside Prisons in India. [Para 231 (vi)]

Case Law Cited
Unni Krishnan v. State of Andhra Pradesh [1993] 1 SCR 594 :
(1993) 1 SCC 645; Justice (Retd.) K.S. Puttaswamy v. Union of
India [2015] 9 SCR 99 : (2017) 10 SCC 1; K Ranjitsinh v. Union
of India [2024] 3 SCR 1320 : 2024 INSC 280; Common Cause v.
Union of India [2018] 13 SCR 1204 : (2018) 4 SCALE 1; Shafin
Jahan v. Asokan K.M. [2018] 4 SCR 955 : (2018) 16 SCC 368;
Maneka Gandhi v. Union of India [1978] 2 SCR 621 : 1978 INSC
16; CPIO, Supreme Court of India v. Subhash Chandra Agarwal
[2019] 16 SCR 424 : 2019 (16) SCALE 40; Kalpana Mehta v.
Union of India [2018] 4 SCR 1; Navtej Singh Johar v. Union of
India [2018] 7 SCR 379 : (2018) 10 SCC 1 : 2018 INSC 790;
Association for Democratic Reforms v. Union of India [2024] 2
[2024] 10 S.C.R. 505

Sukanya Shantha v. Union of India & Ors.

SCR 420 : 2024 INSC 113; Kesavananda Bharati v. State of Kerala
[1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; State of Kerala v. N.M.
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86; Joseph Shine v. Union of India (2019) 3 SCC 39; Indian Young
Lawyers Association v. State of Kerala [2018] 9 SCR 561 : (2019)
11 SCC 1 : 2018 INSC 908; Chiranjit Lal Chowdhuri v. Union of
India [1950] 1 SCR 869 : 1950 SCR 869; State of Bombay v. F. N.
Balsara [1951] 1 SCR 682 : 1951 SCR 682; State of West Bengal
v. Anwar Ali Sarkar [1952] 1 SCR 284 : (1952) 1 SCC 1; Ram
Krishna Dalmia v. Justice S.R. Tendolkar [1959] 1 SCR 279; E.P.
Royappa v. State of Tamil Nadu [1974] 2 SCR 348 : (1974) 4 SCC
3; Association for Democratic Reforms v. Union of India [2024] 2
SCR 420 : 2024 INSC 113; Shayara Bano v. Union of India [2017]
9 SCR 797 : (2017) 9 SCC 1; State of Punjab v. Davinder Singh
2024 INSC 562; Anuj Garg v. Hotel Association of India [2007] 12
SCR 991 : (2008) 3 SCC 1; National Legal Services Authority v.
Union of India [2014] 5 SCR 119 : (2014) 5 SCC 438; Rajbala v.
State of Haryana [2015] 12 SCR 1106 : 2015 INSC 912; Karma
Dorjee v. Union of India [2016] 9 SCR 968 : (2017) 1 SCC 799;
Secretary, Ministry of Defence v. Babita Puniya [2020] 3 SCR
833 : 2020 INSC 198; Lt. Col. Nitisha v. Union of India [2021] 4
SCR 633 : (2021) 15 SCC 125; Nipun Malhotra v. Sony Pictures
Films India (P) Ltd [2024] 7 SCR 246 : 2024 INSC 465; Soosai v.
Union of India [1985] Supp. 3 SCR 242 : 1985 Supp SCC 590;
State of Karnataka v. Appa Balu Ingale [1992] Supp. 3 SCR 284 :
1995 Supp (4) SCC 469; Adi Saiva Sivachariyargal Nala Sangam
v. State of Tamil Nadu [2015] 11 SCR 1110 : (2016) 2 SCC 725;
Kaushal Kishor v. State of Uttar Pradesh [2023] 8 SCR 581 :
(2023) 4 SCC 1; Janhit Abhiyan v. Union of India [2022] 14 SCR
1 : (2023) 5 SCC 1; State of M.P. v. Ram Kishna Balothia [1995]
1 SCR 897 : (1995) 3 SCC 221; Prathvi Raj Chauhan v. Union of
India [2020] 2 SCR 727 : (2020) 4 SCC 727; Safai Karamchari
Andalon v. Union of India [2014] 4 SCR 197 : 2014 (11) SCC
224; Balram Singh v. Union of India [2023] 14 SCR 1083 : 2023
INSC 950; Francis Coralie Mullin v. Administrator, Union Territory
of Delhi [1981] 2 SCR 516 : (1981) 1 SCC 608; Bandhua Mukti
Morcha v. Union of India [1984] 2 SCR 67 : (1984) 3 SCC 161;
Jeeja Ghosh v. Union of India [2016] 4 SCR 638 : (2016) 7 SCC
761; M. Nagaraj v. Union of India [2006] Supp. 7 SCR 336 :
(2006) 8 SCC 212; X2 v. State (NCT of Delhi) (2023) 9 SCC 433;
Sunil Batra (I) v. Delhi Administration [1979] 1 SCR 392 : (1978)
506 [2024] 10 S.C.R.

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4 SCC 494; Sunil Batra (II) v. Delhi Administration (1980) 3 SCC
488; Sunil Batra (II) v. Delhi Administration [1980] 2 SCR 557 :
1979 INSC 271; Charles Sobraj v. Supdt., Central Jail [1979] 1
SCR 512 : (1978) 4 SCC 104 : 1978 INSC 149; Kishore Singh
Ravinder Dev v. State of Rajasthan [1981] 1 SCR 995 : (1981)
1 SCC 503; Sheela Barse v. State of Maharashtra [1988] 1 SCR
210 : (1987) 4 SCC 373; Nilabati Behera v. State of Orissa [1993]
2 SCR 581 : (1993) 2 SCC 746; D.K. Basu v. State of West Bengal
[1996] Supp. 10 SCR 284 : (1997) 1 SCC 416; Mehmood Nayyar
Azam v. State of Chhattisgarh [2012] 8 SCR 651 : (2012) 8 SCC
1; Shabnam v. Union of India [2015] 8 SCR 289 : (2015) 6 SCC
702; ‘X’ v. State of Maharashtra [2019] 6 SCR 1 : (2019) 7 SCC
1; People’s Union for Democratic Rights v. Union of India [1983]
1 SCR 456 : (1982) 3 SCC 235; Sanjit Roy v. State of Rajasthan
[1983] 2 SCR 271 : (1983) 1 SCC 525; Labourers Working on
Salal Hydro Project v. State of Jammu & Kashmir [1983] 2 SCR
473 : (1983) 2 SCC 181; Neeraja Chaudhary v. State of Madhya
Pradesh (1984) 3 SCC 243; P. Sivaswamy v. State of Andhra
Pradesh [1988] Supp. 2 SCR 346 : (1988) 4 SCC 466 : State
of Gujarat v. Hon’ble High Court of Gujarat AIR 1998 SC 3164;
Public Union for Civil Liberties v. State of Tamil Nadu [2012] 9
SCR 579 : (2013) 1 SCC 585; Gujarat Mazdoor Sabha v. State
of Gujarat [2020] 13 SCR 886 : (2020) 10 SCC 459; State of
Madhya Pradesh v. Ram Krishna Balothia [1995] 1 SCR 897 : 1995
INSC 99; Murthy Match Works v. Asst Collector of Central Excise
[1974] 3 SCR 121 : (1974) 4 SCC 428; Hiralal Mallick v. State of
Bihar [1978] 1 SCR 301 : (1977) 4 SCC 44; Mohammed Ajmal
Mohammad Amir Kasab @ Abu Mujahid v. State Of Maharashtra
[2012] 8 SCR 295 : 2012 INSC 357; Mohd. Hussain v. The State
(Govt. of NCT) Delhi AIR 2012 SC 750; National Campaign on
Dalit Human Rights v. Union of India [2016] 9 SCR 122 : AIR 2017
SC 132; Subhash Kashinath Mahajan v. State of Maharashtra
[2018] 4 SCR 877 : 2018 INSC 248; Union of India v. State of
Maharashtra [2019] 12 SCR 1125 : 2019 INSC 1102; Hariram
Bhambhi v. Satyanarayan [2021] 8 SCR 855 : 2021 INSC 701;
Patan Jamal Vali v. State of Andhra Pradesh [2021] 3 SCR 470 :
2021 INSC 272; Ankush Maruti Shinde v. State of Maharashtra
[2019] 4 SCR 709 : 2019 INSC 305; Amanatullah Khan v. The
Commissioner of Police Delhi [2024] 5 SCR 927 : 2024 INSC 383;
Arnesh Kumar v. State of Bihar [2014] 8 SCR 128 : 2014 INSC
463; Mallada K. Sri Ram v. State of Telangana [2022] 3 SCR 5 :
2022 INSC 386 – referred to.
[2024] 10 S.C.R. 507

Sukanya Shantha v. Union of India & Ors.

Books and Periodicals Cited
Granville Austin, The Indian Constitution: Cornerstone of a Nation,
Oxford University Press (1999), at pages 50, xii-xiii; Granville
Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
University Press (1966), p. xi; Marc Galanter, Law and Society
in Modern India, Oxford University Press (1989), 2018 Reprint,
p. 185; Granville Austin, The Indian Constitution: Cornerstone of
a Nation, Oxford University Press (1966), p. xii; Granville Austin,
Working A Democratic Constitution: The Indian Experience, Oxford
University Press (1999), p. 7; Isabel Wilkerson, Caste: The Origins
of Our Discontents, Penguin Random House (2020), p. 167;
Rahul Choragudi, et al, Caste Matters in Public Policy: Issues and
Perspectives, Routledge (2024), Reprint, p. 2; Anurag Bhaskar, The
Foresighted Ambedkar: Ideas that Shaped Indian Constitutional
Discourse, Penguin (2024), pp. 68-87; Anurag Bhaskar, The
Foresighted Ambedkar: Ideas That Shaped Indian Constitutional
Discourse, Penguin (2024), pp. 176-191; B. Shiva Rao, Framing of
India’s Constitution, Vol. 5, pp. 249-257; B.R. Ambedkar, “Evidence
Before the Southborough Committee”, in Dr Babasaheb Ambedkar:
Writings and Speeches, Vol. 1, p. 256; B.R. Ambedkar, “Castes in
India”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol.
1, p. 16;B.R. Ambedkar, “Annihilation of Caste”, in Dr. Babasaheb
Ambedkar: Writings and Speeches, Vol. 1, p. 54; B.R. Ambedkar,
“Philosophy of Hinduism”, in Dr. Babasaheb Ambedkar: Writings
and Speeches, Vol. 3, pp. 25- 26; B.R. Ambedkar, “Annihilation
of Caste”, in Dr. Babasaheb Ambedkar: Writings and Speeches,
Vol. 1, p. 86; B.R. Ambedkar, “Castes in India”, in Dr. Babasaheb
Ambedkar: Writings and Speeches, Vol. 1, p. 18; B.R. Ambedkar,
“Castes in India”, in Dr. Babasaheb Ambedkar: Writings and
Speeches, Vol. 1, p. 14; Anastasia Pilavsky, “The ‘Criminal Tribe’
in India before the British”, Comparative Studies in Society and
History 57, no. 2 (2015): 323–54, at p. 327; Anastasia Pilavsky, “The
‘Criminal Tribe’ in India before the British”, Comparative Studies
in Society and History 57, no. 2 (2015): 323–54, at p.326; John
Lewis Gillin, Taming the Criminal: Adventures in Penology, p. 110;
John Lewis Gillin, Taming the Criminal: Adventures in Penology,
Macmillan Company (1931), pp. 115-16, 122; B.R. Ambedkar,
“Evidence Before the Southborough Committee (1919)”, in Dr.
Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 255; “Dr.
Ambedkar at the Round Table Conferences”, in Dr. Babasaheb
Ambedkar: Writings and Speeches, Vol. 2, p. 504; B.R. Ambedkar,
“Annihilation of Caste”, in Dr. Babasaheb Ambedkar: Writings and
508 [2024] 10 S.C.R.

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Speeches, Vol. 1, p. 47; Marc Galanter, “Law and Caste in Modern
India”, Asian Survey (1963), Vol. 3, No. 11, pp. 544–59, at p.
545; Marc Galanter, “Untouchability and the Law”, Economic and
Political Weekly (1969), Vol. 4, No. 1/2, pp. 131– 170, at p. 131;
Committee on Prison Discipline to the Governor General of India
in Council, 1838, page 106; David Arnold and David Hardiman
(eds.), Subaltern Studies VIII: Essays in Honour of Ranajit Guha,
Oxford University Press (1994), pp. 148-187, at p. 172; Report
of the Inspector of Prisons, Oudh, 1826, p. 33 as cited in David
Arnold (1994), p. 172; David Arnold, “Labouring for the Raj: Convict
Work Regimes in Colonial India, 1836–1939”, in Christian G Vito
and Alex Lichtenstein (eds), Global Convict Labour, Brill (2015),
pp. 199-221, at p. 209; Secretary, India, Home (Judicial), to Chief
Secretary, Madras, 8 July 1871, Madras Judicial Proceedings, no.
98, 24 October 1871] – as cited in David Arnold (2015), p. 210;
Report of The Group of Officers on Prison Administration, 1987,
p. 156 (“RK Kapoor Committee”); Michael Klarman, Unfinished
Business: Racial Equality in American History, Oxford University
Press (2007); Jamal Greene, How Rights Went Wrong: Why Our
Obsession with Rights is Tearing America Apart, Mariner Books,
2022, p. 248; Paulo Freire, Pedagogy of the Oppressed (translated
by Myra Bergman Ramos), Penguin 2017, p. 24; Alan Paton, Cry,
The Beloved Country, Vintage Books, 2002; Bell Hooks, Salvation:
black people and love, Harper Perennial, 2001; pp. 214-15; Nusrat
F. Jafri, This Land We Call Home: The Story of a Family, Caste,
Conversions and Modern India, Penguin (2024), p. Xv – referred to.
Lists of Websites
The Criminal Tribes Enquiry Committee Report (1949-50), https://
ia802807.us.archive.org/11/items/dli.csl.944/944.pdf, p. 92; Model
Prison Manual 2016, p. 4, https://www.mha.gov.in/sites/default/
files/PrisonManual2016.pdf; B.B. Pande, “Expanding Horizons
of Criminal Procedure Law”, SCC Journal (2021), https://www.
scconline.com/blog/post/2021/07/07/expanding-horizons-of-
criminal-procedure-law/; B.R. Ambedkar, “States and Minorities”, in
Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 393,
https://www.mea.gov.in/Images/CPV/Volume1.pdf – referred to.
List of Acts
Uttar Pradesh Jail Manual, 2022; Constitution of India; Code
of Criminal Procedure, 1973; Model Prison Manual for the
Superintendence and Management of Prisons in India, 2003;
[2024] 10 S.C.R. 509

Sukanya Shantha v. Union of India & Ors.

West Bengal Jail Code Rules, 1967; Thuggee Act (XXX of 1836);
Dacoity Act (XXIV of 1843); Bonded Labour System (Abolition)
Act 1976; Criminal Tribes Act 1871; Penal Code 1860; Criminal
Tribes Settlement Act; Criminal Tribes Act 1911; Reformatory
Schools Act, 1897; Criminal Tribes Act of 1924; Criminal Tribes
Manual of Gwalior; Rewa Wandering Criminal Tribes Act, 1925;
Criminal Tribes (Madras Repeal) Act, 1947; Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989;
Prison Act 1984; Uttar Pradesh Jail Manual, 2022; West Bengal
Jail Code Rules for Superintendence and Management of Jail in
West Bengal, 1967; Madhya Pradesh Jail Manual, 1987; Andhra
Pradesh Prison Rules, 1979; Odisha Model Jail Manual Rules
for the Superintendence and Management of Jails in Odisha,
2020; Kerala Prison Rules 1958; Tamil Nadu Prison Rules, 1983;
Rules for the Superintendence and Management of Jails in the
Bombay State, 1954; Karnataka Prisons and Correctional Services
Manual-2021; Rajasthan Prisons Rules, 2022; Prison Manual 2021
for the Superintendence and Management of the Jails in Himachal
Pradesh; Madras Jail Manual, 1899; Uttar Pradesh Jail Manual,
1941; Rajasthan Prison Rules 1951; Model Prisons and Correctional
Services Act, 2023; Legal Services Authorities Act, 1987; Tamil Nadu
Restriction of Habitual Offenders Act, 1948 (previously Restriction
of Habitual Offenders Act 1948); Madhya Bharat Vagrants, Habitual
Offenders and Criminals (Restrictions and Settlement) Act, 1952;
Orissa Restriction of Habitual Offenders Act, 1952; Uttar Pradesh
Habitual Offenders Act, 1952; Rajasthan Habitual Offenders
Act, 1953; Jammu and Kashmir Habitual Offenders (Control and
Reform) Act, 1956; Bombay Habitual Offenders Act, 1959; Gujarat
Habitual Offenders Act, 1959; Kerala Habitual Offenders Act, 1960;
Karnataka Habitual Offenders Act, 1961; Andhra Pradesh Habitual
Offenders Act, 1962; Himachal Pradesh Habitual Offenders Act,
1969; Goa, Daman and Diu Habitual Offenders Act, 1976; Tamil
Nadu Habitual Offenders Act, 1948.

List of Keywords
Caste-based discrimination; Prisons; State Prison Manuals;
Division of manual labour; Segregation of barracks; Discrimination
against prisoners belonging to denotified tribes and habitual
offenders; Model Prison Manual, 2016; Discrimination in kitchens;
Habitual Offenders; Denotified tribes in prisons; Model Prisons
and Correctional Services Act 2023; Caste column; Caste in
510 [2024] 10 S.C.R.

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undertrial and/or convicts’ prisoners’ registers; Guidelines issued in
Arnesh Kumar’s case and Amanatullah Khan’s case; Marginalized
castes; High castes; Direct discrimination; Untouchability; Caste
prejudices; Caste based division of labour/work; Intelligible and
rational principle of classification; Rational nexus; Rehabilitation;
Segregating prisoners; Social hierarchy; Non-habitual prisoner;
Occupational immobility of prisoners; Restriction on labour;
Discrimination and continued targeting of members of Denotified
Tribes; Classification of habitual offender; Role of Legal Service
Authorities in Prisons; Right to free legal aid; Non-Discrimination
u/Art.15; Ban on untouchability in Art. 17; Right to live with dignity;
Prohibition of forced labour and human trafficking; Criminal Tribes
Act; Repeal of Criminal Tribes Act; Prevention of discrimination and
atrocities; Jurisprudence on social protection in Post-Independence
India; Manual Scavengers; Prison management; Women inmates;
Habitual/recidivist prisoners; Substantive equality and institutional
discrimination; Suo motu cognizance; In Re: Discrimination Inside
Prisons in India.

Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1404 of 2023
(Under Article 32 of The Constitution of India)
Appearances for Parties
Dr. S. Muralidhar, Sr. Adv., Prasanna S., Ms. Disha Wadekar, Ms.
Apoorva Singh, M. A. Karthik, Maitreya Subramaniam, Ms. Pallak
Bhagat, Advs. for the Petitioner.
Ms. Aishwarya Bhati, ASG, Tapesh Kumar Singh, Sr. AAG, Mani
Munjal, Ashok Panigrahi, B.K. Satija, Rajat Nair, Arvind Kumar
Sharma, Pradeep Misra, Daleep Dhyani, Ms. Aarohi Bhalla, Himanshu
Chakravarty, Ms. Astha Sharma, Ms. Ripul Swati Kumari, Mahfooz
Ahsan Nazki, Subhasish Mohanty, Vishnu Sharma, Ms. Madhusmita
Bora, Pawan Kishore Singh, Dipankar Singh, Dr. Ravindra Chingale,
Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey,
D.L. Chidananda, Ishan Roy Chowdhury, Anuj Saxena, Durgesh
Ramchandra Gupta, Anuj Ruhela, Shubham Sagar, Mrs. Payal
Gaikwad, Prakash Sharma, Pratham Arora, Ms. Prerna Singh, Guntur
Pramod Kumar, Keshav Singh, Sabarish Subramanian, Advs. for
the Respondents.
[2024] 10 S.C.R. 511

Sukanya Shantha v. Union of India & Ors.

Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
Contents*

I. The Writ Petition.............................................................. 4
II. Submissions...................................................................... 4
III. Constitutional Interpretation.............................................. 6
IV. The Constitution of Emancipation, Equality, and Dignity.... 9
V. The Contours of Article 14................................................. 17
VI. Non-Discrimination under Article 15.................................. 23
VII. The Ban on Untouchability in Article 17............................ 33
VIII. Article 21: Of Life and Dignity........................................... 38
IX. Article 23: Prohibition of Forced Labour and Human
Trafficking.......................................................................... 45
X. A History of Discrimination in the Pre-Colonial Era......... 57
XI. The Colonial Suppression of Marginalized Castes and
Tribes.............................................................................. 60
i. Criminal Tribes Acts.................................................... 61
ii. Caste Discrimination in Colonial India...................... 70
iii. Repeal of Criminal Tribes Act.................................... 74
XII. Jurisprudence on Social Protection in Post-Independence
India.................................................................................. 77
XIII. Impugned Provisions........................................................ 88
XIV. Prison Manuals and the Legacy of Discrimination........... 105
XV. Model Prison Manual 2016: Whether Adequate?............ 125
XVI. Model Prisons and Correctional Services Act, 2023........ 132
XVII. The Continued Targeting of Denotified Tribes.................. 134
XVIII. The Role of Legal Service Authorities in Prisons............. 138
XIX. The Future of Substantive Equality & Institutional
Discrimination.................................................................... 144
XX. Conclusion and Directions............................................... 146

* Ed. Note: Pagination as per the original Judgment.
512 [2024] 10 S.C.R.

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I. The Writ Petition
1. The petitioner, Sukanya Shantha, a journalist, wrote an article
“From Segregation to Labour, Manu’s Caste Law Governs the
Indian Prison System”, which was published on 10 December 2020.
The article highlighted caste-based discrimination in the prisons in
the country. The petitioner has sought directions for repeal of the
offending provisions in State prison manuals. By an order dated 10
July 2024, judgment was reserved. We have heard a broad diversity
of viewpoints from across India. Besides counsel for the petitioner
and the intervenor, the Additional Solicitor General (ASG) of India
appeared for the Union of India. The States of Jharkhand, Uttar
Pradesh, West Bengal, Maharashtra, Orissa, Karnataka, Andhra
Pradesh, and Tamil Nadu appeared through counsel.

II. Submissions
2. Dr. S. Muralidhar, Senior Advocate, appearing for the petitioner
highlighted the issue of caste-based discrimination in the prisons
in India. It was argued that various State prison manuals sanction
blatantly unconstitutional practices, which are violative of Articles 14,
15, 17, 21, and 23 of the Constitution of India. Ms. Disha Wadekar
referred to a chart of provisions from different State prison manuals/
rules to highlight various forms of discrimination in the prisons. She
highlighted that caste-based discrimination continues to persist
in the prisons in the country with respect to: (i) The division of
manual labour; (ii) Segregation of barracks; and (iii) Provisions
that discriminate against prisoners belonging to Denotified tribes
and “habitual offenders”. She further argued that the Model Prison
Manual, 2016 does not address the impugned provisions related
to caste discrimination inside prisons other than the discrimination
in kitchens, and that it is not “model” when it comes to addressing
caste discrimination. In the written submissions, the petitioner’s side
has further submitted that the Home Departments of the Respondent
States may also be directed to clarify the definition of “Habitual
Offenders” in their respective prison manuals so as to prevent its
misuse against the denotified tribes in prisons.
3. Ms. Aishwarya Bhati, Learned ASG, submitted a written note arguing
that the Ministry of Home Affairs prepared the Model Prison Manual
for the Superintendence and Management of Prisons in India, 2003
[2024] 10 S.C.R. 513

Sukanya Shantha v. Union of India & Ors.

and The Model Prison Manual, 2016, and circulated it to all States
and Union Territories (UTs) in May 2016 explicitly prohibiting caste
and religion based discrimination practices. She also referred to the
Advisory dated 26 February 2024 issued by the Ministry of Home
Affairs, through the Deputy Secretary (PR & ATC) to the Principal
Secretary (Home/Jails) of all states and UTs and the DG/IG Prisons
of all States and UTs to ensure that the State Prison Manual/Prison
Act should not contain any discriminatory provisions. She further
argued that “prisons, reformatories, Borstal institutions and other
institutions of a like nature, and persons detained therein” as a
subject fall under the domain of the States under Entry 4, List II of
the Seventh Schedule of the Constitution.
4. Ms. Ashtha Sharma, counsel for the State of West Bengal, stated that
the discrimination on the basis of caste/creed/ religion as envisaged in
the provisions of West Bengal Jail Code Rules, 1967 (Rules No. 741,
793, 860 and 1117) are not in force/ practice within the Correctional
Homes of West Bengal since long, and that a proposal for deletion/
alteration/ amendment of the four Rules has been already sent to the
appropriate authority. Mr. Anuj Saxena, counsel for the intervenor,
has prayed for deletion of “caste” column and any references to
caste in undertrial and/or convicts’ prisoners’ registers.

III. Constitutional Interpretation
5. As we deal with the present petition, we must refer to the values of
the Constitution and the interpretation we must adopt. After all, the
impugned provisions of the various prison manuals, highlighted in this
petition, demonstrate that the values of the Constitution are at stake.
6. The Constitution reflects the vision of its founders to give India a
collective future based on the values of liberty, equality, and fraternity.
The Constitution mandates a more just and inclusive society, where
every citizen has the opportunity to thrive. It envisages that the
values embedded in its provisions are not just aspirations but lived
realities. Any interpretation of the Constitution must be reflective
of the blueprint laid down by its founders. The Constitution is – as
Granville Austin put it— a “social document” and a “modernizing
force”, with its provisions embodying “humanitarian sentiments”.1

1 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999), at
pages 50, xii-xiii
514 [2024] 10 S.C.R.

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7. The interpretation of the Constitution is not static. It has evolved
with time to give recognition to a broader spectrum of rights to the
citizens, as well as to impose additional safeguards against excesses
of the State or even private entities, as the case may be. Over the
last seventy-five years, the Supreme Court has recognized new
rights such as the right to education,2 the right to privacy,3 and the
right against the adverse impact of climate change,4 among others.
These rights, though not explicitly mentioned in the original text, have
been interpreted as inherent to the broader principle of the right to
life which the Constitution enshrines. The Constitution must serve
as a robust framework for safeguarding the rights of citizens and
maintaining the delicate balance between authority and individual
freedom.
8. The Constitution recognizes the dignity and individual autonomy
inherent in all citizens and their right to life and personal liberty.
Liberty and autonomy advance the cause of human dignity.5 Individual
autonomy is the ability to make decisions on matters that impact
one’s life.6 When individuals are granted the freedom to make choices
about their own lives, they are empowered to take control of their
destinies, and express their identities, in the “pursuit of happiness”7
without undue interference. This freedom fosters a sense of self-worth
and respect, thereby recognizing individual dignity. By safeguarding
these principles, we ensure that the intrinsic worth of every human
being is recognized and upheld. The right to life cannot be restricted
except through a law which is “substantively and procedurally fair,
just and reasonable”.8
9. Our interpretation of the Constitution must fill the silences in its
text. The framers of the Constitution could not have anticipated
every situation that might arise in the future. They also intentionally

2 Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645
3 Justice (Retd.) K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
4 K Ranjitsinh v. Union of India, 2024 INSC 280
5 Common Cause v. Union of India (2018) 4 SCALE 1
6 Justice (Retd.) K S Puttaswamy v. Union of India (2017); Common Cause v. Union of India (2018).
7 American Declaration of Independence, original transcript available at https://www.archives.gov/
founding-docs/declaration-transcript
8 Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
[2024] 10 S.C.R. 515

Sukanya Shantha v. Union of India & Ors.

left certain decisions to the discretion of future generations.
However, the choices we make today must align with the broader
constitutional framework and values. In filling the gaps, whenever
they arise, our interpretation must enhance the foundational values
of the Constitution such as equality, dignity, liberty, federalism and
institutional accountability. Our interpretation must adhere to the
postulate that “civil and political rights and socio-economic rights do
not exist in a state of antagonism.” 9 Our analysis must be based on
a holistic reading of the provisions of the Constitution.10
10. The Constitution envisages that courts act as institutions which
discharge the responsibility of protecting constitutionally entrenched
rights. Courts are neutral institutions, whose primary function is to
apply the law fairly and consistently. Transparency in processes also
enhances public confidence in the system.11 In their role as neutral
institutions, courts also act as a check on the other branches of
government, ensuring that their actions conform to constitutional
and legal standards.
11. The Constitution mandates that laws enacted in the colonial era should
align with its provisions.12 Constitutional interpretation emphasizes
the “need to reverse the philosophy of the colonial regime, which
was founded on the subordination of the individual to the state”.13
The “assumptions which lay at the foundation of colonial rule have
undergone a fundamental transformation for a nation of individuals
governed by the Constitution”.14 By recognizing the injustices in the
colonial and pre-colonial era, “we can certainly set the course for
the future”.15 “In the transformation of society” against colonial and
pre-colonial ideology, the Constitution “seeks to assure the values
of a just, humane and compassionate existence to all her citizens”.16

9 Justice (Retd.) K S Puttaswamy v. Union of India (2017)
10 Maneka Gandhi v. Union of India, 1978 INSC 16
11 CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2019 (16) SCALE 40
12 Article 13(1) of the Indian Constitution provides: “All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they are inconsistent with the provisions of
this Part, shall, to the extent of such inconsistency, be void.”
13 Kalpana Mehta v. Union of India [2018] 4 SCR 1
14 Ibid
15 Navtej Singh Johar v. Union of India, 2018 INSC 790 [Justice Chandrachud]
16 Ibid
516 [2024] 10 S.C.R.

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12. Criminal laws of the colonial era continue to impact the postcolonial
world. As a scholar noted, “while the pre-determined and codified
nature of the diverse criminal justice rules provided the moral
superiority and political legitimacy to colonial rule, the Imperial power
was safeguarded by their coercive content, particularly in procedural
matters.” 17 Criminal laws in modern times thus, as “the strongest
expression of the State’s power” must “ensure that they do not deny
equality before the law and the equal protection of laws”.18 Criminal
laws must not endorse colonial or pre-colonial philosophy.
13. In a post-constitutional society, “the law must take affirmative steps
to achieve equal protection of law to all its citizens”.19 Any discussion
on the Constitution must therefore take a conscious view of the lived
realities of citizens. It requires evaluating how constitutional provisions
translate into meaningful outcomes in their lives. We must discuss
this aspect of the Indian Constitution further, before we examine the
impugned provisions.

IV. The Constitution of Emancipation, Equality, and Dignity
14. The Constitution of India is an emancipatory document. It provides
equal citizenship to all citizens of India. The Constitution is not just
a legal document, but in India’s social structure, it is a quantum
leap. In one stroke, it gave a dignified identity to all citizens of
India. On 26 January 1950, the Constitution eliminated the legality
of caste-based discrimination, thereby raising the human dignity of
our marginalised communities.
15. Describing the vision of the framers, constitutional historian Granville
Austin stated:
“India’s founding fathers and mothers established in the
Constitution both the nation’s ideals and the institutions
and processes for achieving them. The ideals were national
unity and integrity and a democratic and equitable society.
The new society was to be achieved through a social-
economic revolution pursued with a democratic spirit

17 B.B. Pande, “Expanding Horizons of Criminal Procedure Law”, SCC Journal (2021), https://www.
scconline.com/blog/post/2021/07/07/expanding-horizons-of-criminal-procedure-law/
18 Navtej Singh Johar v. Union of India, 2018 INSC 790 [Justice Chandrachud]
19 Ibid
[2024] 10 S.C.R. 517

Sukanya Shantha v. Union of India & Ors.

using constitutional, democratic institutions. I later came
to think of unity, social revolution, and democracy as three
strands of a seamless web. The founders believed that
none of these goals was to be pursued, nor could any be
achieved, separately. They were mutually dependent and
had to be sought together.”20
Marc Galanter noted in this regard:
“Independent India embraced equality as a cardinal value
against a background of elaborate, valued and clearly
perceived inequalities. Her constitutional policies to offset
these proceeded from an awareness of the entrenched
and cumulative nature of group inequalities.”21
The Constitution mandates the replacement of fundamental wrongs
with fundamental rights.22 Through its provisions, it displaced a
centuries-old caste-based hierarchical social order “that did not
recognize the principle of individual equality”.23 It negated the ideals of
social hierarchy. The Constitution is the embodiment of the aspirations
of the millions of caste-oppressed communities, which hoped for a
better future in independent India. To summarize, the “Constitution,
by its very existence, was a social revolutionary statement.”24
16. Some of the speeches in the Constituent Assembly give expression
to this vision. On behalf of the Adivasi community, Jaipal Singh
Munda shared the following sentiments and expectations from the
Constitution:
“Mr. Chairman, Sir, I rise to speak on behalf of millions
of unknown hordes-yet very important-of unrecognised
warriors of freedom, the original people of India who have
variously been known as backward tribes, primitive tribes,
criminal tribes and everything else, Sir, I am proud to be a
Jungli, that is the name by which we are known in my part
of the country... Sir, if there is any group of Indian people

20 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xi
21 Marc Galanter, Law and Society in Modern India, Oxford University Press (1989), 2018 Reprint, p. 185
22 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xii
23 Granville Austin, Working A Democratic Constitution: The Indian Experience, Oxford University Press
(1999), p. 7
24 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), p. xii
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that has been shabbily treated it is my people. They have
been disgracefully treated, neglected for the last 6,000
years… You cannot teach democracy to the tribal people;
you have to learn democratic ways from them. They are
the most democratic people on earth… We want to be
treated like every other Indian.”25
H.J. Khandekar, a leader from the Dalit community, raised the plight
of the so-called “criminal tribes”:
“We have been given according to this Constitution freedom
of speech and freedom of movement and so on. But there
is no freedom of movement for one crore of unfortunate
people in this country. That is, the Criminal Tribes. Nothing
is said about them in this Constitution. Will the Government
repeal the Criminal Tribes Act and give every freedom to
the Criminal Tribes?”26
Dakshayani Velayudhan, the lone Dalit woman in the Constituent
Assembly, noted:
“The working of the Constitution will depend upon how
the people will conduct themselves in the future, not on
the actual execution of the law. So I hope that in course
of time there will not be such a community known as
Untouchables and that our delegates abroad will not have
to hang their heads in shame if somebody raises such a
question in an organisation of international nature.”27
Dr Ambedkar, as Chairman of the Drafting Committee, remarked in
his last address to the Constituent Assembly:
“On the 26th of January 1950, we are going to enter into a
life of contradictions. In politics we will have equality and in
social and economic life we will have inequality. In politics
we will be recognizing the principle of one man one vote
and one vote one value. In our social and economic life,
we shall, by reason of our social and economic structure,
continue to deny the principle of one man one value. How

25 Constituent Assembly Debates (19 December 1946)
26 Constituent Assembly Debates (21 November 1949)
27 Constituent Assembly Debates (29 November 1948)
[2024] 10 S.C.R. 519

Sukanya Shantha v. Union of India & Ors.

long shall we continue to live this life of contradictions?
How long shall we continue to deny equality in our social
and economic life? If we continue to deny it for long, we
will do so only by putting our political democracy in peril.
We must remove this contradiction at the earliest possible
moment or else those who suffer from inequality will blow
up the structure of political democracy which this Assembly
has so laboriously built up.”28
The vision laid down by Dr. Ambedkar, Jaipal Singh Munda, H.J.
Khandekar, and Dakshayani Velayudhan, among others, emphasizes
that there shall be no discrimination in the country. The Constitution
envisions a society where there is no room for anyone to feel superior
to another citizen.
17. The chapter on fundamental rights places the provisions on equality,
non-discrimination, equality of opportunity, affirmative action, abolition
of untouchability, freedom of speech and expression, right to life,
and prohibition of forced labour together. This has been done for a
special reason. The framers of the Constitution conceptualized that
without the provisions on the prohibition of discrimination, abolition
of untouchability, and prohibition on forced labour, the imagination
of broader rights such as equality before law, freedom of speech
and expression, and the right to life would remain incomplete. The
Constitution thus complements the basic principles of constitutionalism
with provisions designed specifically to address India’s social problems.
18. This underlying philosophy of the Constitution has been highlighted
by this Court in several judgments. Chief Justice S.M. Sikri, in his
opinion in Kesavananda Bharati v. State of Kerala,29 held that
the objective of various provisions of the Constitution is to build “a
welfare State and an egalitarian social order in our country”, and “to
bring about a socio-economic transformation based on principles of
social justice”. Referring to Part III of the Constitution, the judgment
stated that the founders were “anxious that it should be a society
where the citizen will enjoy the various freedoms and such rights as
are the basic elements of those freedoms without which there can
be no dignity of individual”.

28 Constituent Assembly Debates (25 November 1949)
29 [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225
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19. Justice Krishna Iyer in his concurring opinion in State of Kerala v.
N.M. Thomas30 called the Constitution “a great social document,
almost revolutionary in its aim of transforming a medieval, hierarchical
society into a modern, egalitarian democracy”. In Indian Medical
Association v. Union of India,31 the Court held that “various aspects
of social justice, and an egalitarian social order, were also inscribed,
not as exceptions to the formal content of equality but as intrinsic,
vital and necessary components of the basic equality code itself”.
20. This Court held in Justice K.S. Puttaswamy v. Union of India32 that
the “vision of the founding fathers was enriched by the histories of
suffering of those who suffered oppression and a violation of dignity
both here and elsewhere”. One of us (Justice DY Chandrachud)
authored the plurality opinion, holding that the interpretation of the
Constitution must keep evolving to facilitate justice for the citizens.
21. In Navtej Singh Johar v. Union of India,33 the Court while dealing
with the validity of a colonial provision (Section 377 of the Penal Code),
held that the Constitution envisages that “every person enjoys equal
rights which enable him/her to grow and realize his/her potential as an
individual”.34 The Court also acknowledged that “throughout history,
socio-cultural revolts, anti-discrimination assertions, movements,
literature and leaders have worked at socializing people away from
supremacist thought and towards an egalitarian existence.” 35 In
that backdrop, the Indian Constitution “was an attempt to reverse
the socializing of prejudice, discrimination, and power hegemony in
a disjointed society”.36
22. The Court, in Indian Young Lawyers Association v. State of
Kerala,37 described the anti-caste vision of the Constitution. One of
us (Justice DY Chandrachud) wrote a concurring opinion, noting that:

30 [1976] 1 SCR 906 : (1976) 2 SCC 310
31 [2011] 6 SCR 599 : (2011) 6 SCALE 86
32 [2015] 9 SCR 99 : (2017) 10 SCC 1
33 [2018] 7 SCR 379 : 2018 INSC 790
34 Ibid [Chief Justice Dipak Misra and Justice Khanwilkar]
35 Ibid [Justice Chandrachud]
36 Ibid
37 [2018] 9 SCR 561 : (2019) 11 SCC 1
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Sukanya Shantha v. Union of India & Ors.

“Besides the struggle for independence from the British
rule, there was another struggle going on since centuries
and which still continues. That struggle has been for social
emancipation. It has been the struggle for the replacement
of an unequal social order. It has been a fight for undoing
historical injustices and for righting fundamental wrongs
with fundamental rights. The Constitution of India is the
end product of both these struggles. It is the foundational
document, which in text and spirit, aims at social
transformation, namely, the creation and preservation of
an equal social order. The Constitution represents the
aspirations of those, who were denied the basic ingredients
of a dignified existence. It contains a vision of social justice
and lays down a roadmap for successive governments
to achieve that vision. The document sets out a moral
trajectory, which citizens must pursue for the realisation
of the values of liberty, equality, fraternity and justice. It
is an assurance to the marginalised to be able to rise to
the challenges of human existence...”
The Court emphasized the need to scrutinize social practices to keep
them in consonance with the egalitarian values of the Constitution:
“The Constitution embodies a vision of social transformation.
It represents a break from history marked by the indignation
and discrimination attached to certain identities and serves
as a bridge to a vision of a just and equal citizenship. In a
deeply divided society marked by intermixing identities such
as religion, race, caste, sex and personal characteristics as
the sites of discrimination and oppression, the Constitution
marks a perception of a new social order. This social order
places the dignity of every individual at the heart of its
endeavours… Existing structures of social discrimination
must be evaluated through the prism of constitutional
morality. The effect and endeavour is to produce a society
marked by compassion for every individual.”
(emphasis added)
23. The Constitution thus stands as a testament to the fight against
historical injustices and for the establishment of an egalitarian
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social order. It aims to prevent caste-based discrimination. This
commitment is not limited to preventing discriminatory actions by the
State alone. It extends to the actions of citizens and private entities
as well. It empowers the State to enact appropriate legislation or
take executive measures to tackle caste-based discrimination. At
the same time, it mandates the decision-makers to take every step
to end discrimination in Indian society. The pervasive influence of
caste necessitates continuous efforts to ensure equality and justice
for all citizens. The manifestations of caste are too numerous to
exhaustively enumerate.38 They can manifest in various forms and
across different sectors of society, from education and employment to
social interactions and access to resources. As has been observed:
“Continued to be attributed typically to the rural hinterlands
and assumed to be limited only to the discussions on
reservation policy and electoral politics, caste has mutated
and diversified during the past three decades. Today, its
presence is visible in urban housing, its markets and
businesses, higher educational institutions, and public
sector offices as well as the private sector working
spaces, which were projected to be secular and privilege
class over caste, and the various socio-economic and
political institutions that interface with everyday lived
experiences.”39
The fight against caste-based discrimination is not a battle that can
be won overnight; it requires sustained effort, dedication, and the
willingness to confront and challenge societal norms that perpetuate
inequality. When faced with practices of caste-based discrimination,
this Court must take an active stand. In entertaining the current
petition, this Court is making its contribution to the ongoing struggle
to dismantle caste-based discrimination.
24. Based on this constitutional philosophy, we shall now refer to
constitutional provisions under which the impugned provisions have
been challenged.

38 Isabel Wilkerson, Caste: The Origins of Our Discontents, Penguin Random House (2020), p. 167
39 Rahul Choragudi, et al, Caste Matters in Public Policy: Issues and Perspectives, Routledge (2024),
Reprint, p. 2
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Sukanya Shantha v. Union of India & Ors.

V. The Contours of Article 14
25. Article 14 guarantees that the “State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India.” Equality is a crucial aspect of the constitutional
vision. Immediately after the adoption of the Constitution, this Court
laid down the standard to test the validity of laws against Article
14. In a Constitution Bench decision in Chiranjit Lal Chowdhuri
v. Union of India,40 Justice B.K. Mukherjea articulated that a
classification under Article 14 “should never be arbitrary”. It was
held that such classification must always “rest upon some real
and substantial distinction bearing a reasonable and just relation
to the things in respect to which the classification is made”. If a
classification is “made without any substantial basis”, it should be
“regarded as invalid”. The principle of classification was reiterated
in a subsequent Constitution Bench decision in State of Bombay
v. F. N. Balsara.41
26. Later, a seven-judge Bench decision in State of West Bengal v.
Anwar Ali Sarkar42 solidified the requirement of the twin test under
Article 14. Speaking for the Court, Justice S.R. Das held:
“In order to pass the test, two conditions must be fulfilled,
namely (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are
grouped together from others, and (2) that that differentia
must have a rational relation to the object sought to be
achieved by the Act. The differentia, which is the basis
of the classification, and the object of the act are distinct
things, and what is necessary is that there must be a nexus
between them. In short, while the Article forbids class
legislation in the sense of making improper discrimination
by conferring privileges or imposing liabilities upon persons
arbitrarily selected out of a large number of other persons
similarly situated in relation to the privileges sought to be
conferred or the liability proposed to be imposed, it does
not forbid classification for the purpose of legislation,

40 [1950] SCR 869
41 1951 SCR 682
42 [1952] 1 SCR 284 : (1952) 1 SCC 1
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provided such classification is not arbitrary in the sense I
have just explained..”
27. Adding to the above principles, Justice S.R. Das, in Ram Krishna
Dalmia v. Justice S.R. Tendolkar,43 held that the classification
“may be founded on different bases, namely, geographical, or
according to objects or occupations or the like”, but it needs to
have a reasonable nexus with the object of the statute. It was held
that “Article 14 condemns discrimination not only by a substantive
law but also by a law of procedure”. Furthermore, the Court “may
take into consideration matters of common knowledge, matters of
common report, the history of the times and may assume every state
of facts which can be conceived existing at the time of legislation”.
The Court further reiterated that:
“A statute may direct its provisions against one individual
person or thing or to several individual persons or things
but no reasonable basis of classification may appear
on the face of it or be deducible from the surrounding
circumstances, or matters of common knowledge. In such
a case the court will strike down the law as an instance
of naked discrimination…”
28. Subsequently, in E.P. Royappa v. State of Tamil Nadu, 44 a
Constitution Bench of this Court added a crucial principle of non-
arbitrariness to the discourse of equality under Article 14. The Court
was adjudicating the validity of an administrative order. The Court
held that:
“Equality is a dynamic concept with many aspects and
dimensions and it cannot be “cribbed, cabined and confined”
within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other,
to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14…”

43 [1959] SCR 279
44 [1974] 2 SCR 348 : (1974) 4 SCC 3
[2024] 10 S.C.R. 525

Sukanya Shantha v. Union of India & Ors.

29. The principle of non-arbitrariness and reasonableness was then
emphasized in the seven-judge Bench decision in Maneka Gandhi
v. Union of India.45 It was held:
“Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle
of reasonableness, which legally as well as philosophically,
is an essential element of equality or non-arbitrariness,
pervades Article 14 like a brooding omnipresence and
the procedure contemplated by Article 21 must answer
the test of reasonableness in order to be in conformity
with Article 14. It must be “right and just and fair” and not
arbitrary, fanciful or oppressive; otherwise, it would be no
procedure at all and the requirement of Article 21 would
not be satisfied.”
30. To test the validity of laws, the twin test of intelligible differentia and
reasonable nexus held ground. Whether the test of arbitrariness is a
valid principle under Article 14 led to a conflicting set of decisions.46
In Shayara Bano v. Union of India,47 in testing the validity of Section
2 of the Muslim Personal Law (Shariat) Application Act, 1937 which
validates the triple talaq, Justice R.F. Nariman endorsed the test of
manifest arbitrariness. It was held:
“The test of manifest arbitrariness, therefore, as laid down
in the aforesaid judgments would apply to invalidate
legislation as well as subordinate legislation under Article
14. Manifest arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally and/
or without adequate determining principle. Also, when
something is done which is excessive and disproportionate,
such legislation would be manifestly arbitrary. We are,
therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would
apply to negate legislation as well under Article 14.”

45 [1978] 2 SCR 621 : (1978) 1 SCC 248
46 The conflicting judgments have been summarized in Association for Democratic Reforms v. Union of
India, 2024 INSC 113
47 [2017] 9 SCR 797 : (2017) 9 SCC 1
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31. A formalistic understanding of the classification test was then critiqued
by this Court in Navtej Singh Johar v. Union of India.48 The Court
was dealing with a challenge to the constitutionality of Section
377 of the Indian Penal Act, 1860, to the extent that it criminalized
consensual sexual conduct between adults. In his concurring opinion,
one of us (Justice DY Chandrachud) held:
“Equating the content of equality with the reasonableness
of a classification on which a law is based advances the
cause of legal formalism. The problem with the classification
test is that what constitutes a reasonable classification is
reduced to a mere formula: the quest for an intelligible
differentia and the rational nexus to the object sought to
be achieved. In doing so, the test of classification risks
elevating form over substance. The danger inherent in
legal formalism lies in its inability to lay threadbare the
values which guide the process of judging constitutional
rights. Legal formalism buries the life-giving forces of the
Constitution under a mere mantra. What it ignores is that
Article 14 contains a powerful statement of values—of
the substance of equality before the law and the equal
protection of laws. To reduce it to a formal exercise of
classification may miss the true value of equality as
a safeguard against arbitrariness in State action. As
our constitutional jurisprudence has evolved towards
recognising the substantive content of liberty and equality,
the core of Article 14 has emerged out of the shadows
of classification. Article 14 has a substantive content on
which, together with liberty and dignity, the edifice of the
Constitution is built. Simply put, in that avatar, it reflects
the quest for ensuring fair treatment of the individual in
every aspect of human endeavour and in every facet of
human existence.”
The judges declared that Section 377 is manifestly arbitrary. The
doctrine of manifest arbitrariness was also adopted in the Constitution
Bench decision in Joseph Shine v. Union of India.49

48 [2018] 7 SCR 379 : (2018) 10 SCC 1
49 (2019) 3 SCC 39
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Sukanya Shantha v. Union of India & Ors.

32. Referring to the decisions in Shayara Bano, Navtej Johar, and
Joseph Shine, a Constitution Bench in Association for Democratic
Reforms (ADR) v. Union of India50 summarized the doctrine of
manifest arbitrariness in the following words:
“Courts while testing the validity of a law on the ground
of manifest arbitrariness have to determine if the
statute is capricious, irrational and without adequate
determining principle, or something which is excessive and
disproportionate. This Court has applied the standard of
“manifest arbitrariness” in the following manner:
a. A provision lacks an “adequate determining
principle” if the purpose is not in consonance with
constitutional values. In applying this standard,
Courts must make a distinction between the
“ostensible purpose”, that is, the purpose which
is claimed by the State and the “real purpose”,
the purpose identified by Courts based on the
available material such as a reading of the
provision; and
b. A provision is manifestly arbitrary even if the
provision does not make a classification.”
The Constitution Bench further elucidated the standards of manifest
arbitrariness to test the validity of a plenary legislation with those of
subordinate legislation:
“The above discussion shows that manifest arbitrariness
of a subordinate legislation has to be primarily tested vis-
a-vis its conformity with the parent statute. Therefore, in
situations where a subordinate legislation is challenged
on the ground of manifest arbitrariness, this Court will
proceed to determine whether the delegate has failed “to
take into account very vital facts which either expressly
or by necessary implication are required to be taken into
consideration by the statute or, say, the Constitution.” In
contrast, application of manifest arbitrariness to a plenary
legislation passed by a competent legislation requires

50 [2024] 2 SCR 420 : 2024 INSC 113
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the Court to adopt a different standard because it carries
greater immunity than a subordinate legislation. We concur
with Shayara Bano (supra) that a legislative action can
also be tested for being manifestly arbitrary. However, we
wish to clarify that there is, and ought to be, a distinction
between plenary legislation and subordinate legislation
when they are challenged for being manifestly arbitrary.”
33. The Court recently in State of Punjab v. Davinder Singh51 dealt with
whether sub-classification among the Scheduled Castes is permissible
under Article 14. The seven-judge bench reiterated that the State is
allowed to classify in a manner that is not discriminatory. The Court
summarized the twin-test of classification as follows:
“The Constitution permits valid classification if two
conditions are fulfilled. First, there must be an intelligible
differentia which distinguishes persons grouped together
from others left out of the group. The phrase “intelligible
differentia” means difference capable of being understood.
The difference is capable of being understood when
there is a yardstick to differentiate the class included and
others excluded from the group. In the absence of the
yardstick, the differentiation would be without a basis and
hence, unreasonable. The basis of classification must be
deducible from the provisions of the statute; surrounding
circumstances or matters of common knowledge. In making
the classification, the State is free to recognize degrees of
harm. Though the classification need not be mathematical
in precision, there must be some difference between
the persons grouped and the persons left out, and the
difference must be real and pertinent. The classification is
unreasonable if there is “little or no difference”. Second, the
differentia must have a rational relation to the object sought
to be achieved by the law, that is, the basis of classification
must have a nexus with the object of the classification.”
34. The constitutional standards laid down by the Court under Article
14 can be summarized as follows. First, the Constitution permits
classification if there is intelligible differentia and reasonable nexus

51 2024 INSC 652
[2024] 10 S.C.R. 529

Sukanya Shantha v. Union of India & Ors.

with the object sought. Second, the classification test cannot be
merely applied as a mathematical formula to reach a conclusion. A
challenge under Article 14 has to take into account the substantive
content of equality which mandates fair treatment of an individual.
Third, in undertaking classification, a legislation or subordinate
legislation cannot be manifestly arbitrary, i.e. courts must adjudicate
whether the legislature or executive acted capriciously, irrationally
and/or without adequate determining principle, or did something
which is excessive and disproportionate. In applying this constitutional
standard, courts must identify the “real purpose” of the statute rather
than the “ostensible purpose” presented by the State, as summarized
in ADR. Fourth, a provision can be found manifestly arbitrary even
if it does not make a classification. Fifth, different constitutional
standards have to be applied when testing the validity of legislation
as compared to subordinate legislation.

VI. Non-Discrimination under Article 15
35. Clauses 1 and 2 of Article 15 provide that:
“Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth.—
(1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth
or any of them.
(2) No citizen shall, on grounds only of religion, race,
caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels
and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads
and places of public resort maintained wholly
or partly out of State funds or dedicated to the
use of the general public.”
Article 15(1) imposes an enforceable obligation on the State to not
discriminate against citizens on any of several grounds, including
“caste”. If the State itself discriminates against a citizen under any
of the mentioned grounds, then it is discrimination of the highest
form. After all, the State is expected to prevent discrimination, not
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perpetuate it. That is why our Constitution prohibits the State from
discriminating against any citizen. Besides, Article 15(2) was adopted
to specifically prohibit the discrimination faced by certain marginalized
communities in accessing public services and resources. Historically,
the so-called untouchable community was not allowed to use public
resources such as water tanks and wells. This provision has a unique
imprint of Dr Ambedkar, as he consistently advocated for such a
provision for decades.52 Not only does Article 15(2) prohibit the State
from discriminating, it also restricts the citizens or private entities from
discriminating against other citizens on the grounds mentioned therein.
36. Discrimination is prohibited, because it has several repercussions
on human lives. Discrimination arises due to a feeling of superiority/
inferiority, bias, contempt, or hatred against a person or a group. In
history, such feelings have led to the genocide of certain communities.
Discrimination also lowers the self-esteem of the person being
discriminated against. It can lead to unfair denial of opportunities
and constant violence against a set of people. Discrimination can
also be done by continuously ridiculing or humiliating someone,
who is on the weaker side of the social spectrum. It can cause
trauma to a person with which they may be affected their entire life.
Discrimination also includes stigmatizing the identity or existence of
a marginalized social group. Discrimination can also happen based
on certain stereotypes against a marginalized group. As a society
that divided people into a hierarchy, we must remain conscious of
the forms and kinds of discrimination against marginalized groups.
Discriminatory laws enacted before the Constitution of India came
into force need to be scrutinized and done away with.
37. In India, there have been several instances of laws being enacted
based on certain stereotypes against certain groups of people. Our
citizens have brought challenges before the constitutional courts
against the validity of such laws. In Anuj Garg v. Hotel Association
of India,53 the validity of Section 30 of the Punjab Excise Act, 1914
was challenged. The provision prohibited the employment of women
and men under the age of 25 years in premises where liquor or other
intoxicating drugs were consumed by the public. In adjudicating the

52 Anurag Bhaskar, The Foresighted Ambedkar: Ideas that Shaped Indian Constitutional Discourse,
Penguin (2024), pp. 68-87.
53 [2007] 12 SCR 991 : (2008) 3 SCC 1
[2024] 10 S.C.R. 531

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case, this Court applied the principle that “[l]egislation should not be
only assessed on its proposed aims but rather on the implications
and the effects”. It struck down the provision, holding that it “suffers
from incurable fixations of stereotype morality and conception of
sexual role.” It was held that “[n]o law in its ultimate effect should
end up perpetuating the oppression of women”.
38. In National Legal Services Authority v. Union of India,54 this
Court recognised hijras, eunuchs, apart from binary gender, as “third
gender” and extended the protection of Articles 15 and 16 to them.
It was held that discrimination on the ground of “sex” under Articles
15 and 16 includes “discrimination on the ground of gender identity”.
The Court declared that the expression “sex” used in Articles 15 and
16 “is not just limited to the biological sex of male or female, but
intended to include people who consider themselves to be neither
male or female.” This Court concluded that “discrimination on the basis
of sexual orientation or gender identity includes any discrimination,
exclusion, restriction or preference, which has the effect of nullifying
or transposing equality by the law or the equal protection of laws
guaranteed under our Constitution”.
39. However, the judgment of a two-judge bench in Rajbala v. State of
Haryana55 rejected a challenge founded on the claim of discriminatory
impact. A state legislation introduced conditions to contest panchayati
elections, as a result of which, a significant section of Scheduled
Castes was debarred from contesting elections. The Bench held
that a statute cannot be held unconstitutional on the ground that it is
“arbitrary”. The Court held, “If it is constitutionally permissible to debar
certain classes of people from seeking to occupy the constitutional
offices, numerical dimension of such classes, in our opinion should
make no difference for determining whether prescription of such
disqualification is constitutionally permissible unless the prescription
is of such nature as would frustrate the constitutional scheme by
resulting in a situation where holding of elections to these various
bodies becomes completely impossible”. However, this reasoning
prima facie is contrary to the decisions in Shayara Bano, Navtej
Singh Johar, and Joseph Shine, which upheld manifest arbitrariness
as a ground to strike down a law. At the same time, the impact of

54 [2014] 5 SCR 119 : (2014) 5 SCC 438
55 [2015] 12 SCR 1106 : 2015 INSC 912
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the law on the Scheduled Caste population is an example of “indirect
discrimination”, a constitutional test which has been applied by the
Court in subsequent decisions.
40. In Karma Dorjee v. Union of India,56 the Court emphasized that
“[t]he Governments, both at the centre and the states have a non-
negotiable obligation to take positive steps to give effect to India’s
commitment to racial equality”. The Court was hearing a public
interest petition seeking guidelines to be set down to curb acts
of discrimination against persons from the north-eastern states. It
directed the Union Government to take “proactive steps to monitor
the redressal of issues pertaining to racial discrimination faced by
citizens of the nation drawn from the north-east”.
41. A Constitution Bench in Navtej Singh Johar57 gave a broader
interpretation to Article 15, while striking down Section 377 of the
Indian Penal Code insofar as it decriminalizes homosexual intercourse
amongst consenting adults, on the ground that it was discriminatory. In
a concurring opinion written by one of us (Justice DY Chandrachud),
it was held that discrimination, whether direct or indirect, “founded
on a stereotypical understanding of the role of the sex” is prohibited
by Article 15. The Court held, “If certain characteristics grounded
in stereotypes, are to be associated with entire classes of people
constituted as groups by any of the grounds prohibited in Article
15(1), that cannot establish a permissible reason to discriminate.” It
was further held that a provision challenged as being ultra vires the
prohibition of discrimination on the grounds only of sex under Article
15(1) “is to be assessed not by the objects of the State in enacting
it, but by the effect that the provision has on affected individuals and
on their fundamental rights”. The Court discussed the principle that
even if the law or action by the State is facially neutral, it “may have
a disproportionate impact upon a particular class”. Though facially
neutral, the effect of Section 377 was seen to target members of
the LGBTQIA+ community.
42. Another Constitution Bench in Joseph Shine58 struck down Section
497 of the Indian Penal Code, which related to adultery. It was held

56 [2016] 9 SCR 968 : (2017) 1 SCC 799
57 [2018] 7 SCR 379 : (2018) 10 SCC 1
58 (2019) 3 SCC 39
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that the premise of “Section 497 is a gender stereotype that the
infidelity of men is normal, but that of a woman is impermissible”,
and hence, it violates the non-discrimination principle embodied in
Article 15. The provision, the Court held, “builds on existing gender
stereotypes and bias and further perpetuates them”, by giving “legal
recognition to socially discriminatory and gender-based norms”. The
Court held that a “provision of law must not be viewed as operating
in isolation from the social, political, historical and cultural contexts
in which it operates”.
43. In Indian Young Lawyers Association v. The State of Kerala59, this
Court dealt with the validity of a rule excluding menstruating women
between the ages of 10 and 50 from entry in a temple in Kerala,
based upon a custom. In his concurring opinion, Justice Nariman
held that the said rule is hit by Article 15(1), as it “discriminates
against women on the basis of their sex only”. One of us (Justice DY
Chandrachud) who was also a part of the judgment held, “Exclusion
of women between the age groups of ten and fifty, based on their
menstrual status, from entering the temple in Sabarimala can have
no place in a constitutional order founded on liberty and dignity”.
44. In Secretary, Ministry of Defence v. Babita Puniya,60 a two-judge
Bench upheld the claims of women engaged on Short Service
Commissions in the Army to seek parity with their male counterparts
in obtaining Permanent Commissions. It was held that “Arguments
founded on the physical strengths and weaknesses of men and
women and on assumptions about women in the social context of
marriage and family do not constitute a constitutionally valid basis for
denying equal opportunity to women officers.” The Court gave several
directions to the Union Government to grant Permanent Commission
to women officers in the Army and consequential benefits.
45. The issue of Permanent Commissions to women officers once again
came before the Court in Lt. Col. Nitisha v. Union of India.61 The
petitioners challenged the evaluation criteria applied by the Army
as unjust and arbitrary as “the women officers who are in the age
group of 40-50 years of age are being required to conform to the

59 [2018] 9 SCR 561 : 2018 INSC 908
60 [2020] 3 SCR 833 : 2020 INSC 198
61 [2021] 4 SCR 633 : (2021) 15 SCC 125
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medical standards that a male officer would have to conform to at the
age of 25 to 30 years, among other factors”. In deciding the case,
the Court discussed the principles of substantive equality, indirect
discrimination, and anti-stereotyping under Articles 14 and 15(1).
The Court defined indirect discrimination as follows:
“We must clarify here that the use of the term ‘indirect
discrimination’ is not to refer to discrimination which
is remote, but is, instead, as real as any other form
of discrimination. Indirect discrimination is caused by
facially neutral criteria by not taking into consideration the
underlying effects of a provision, practice or a criterion.”
The Court distinguished between direct and indirect discrimination
in the following formulation:
“… as long as a court’s focus is on the mental state underlying
the impugned action that is allegedly discriminatory, we
are in the territory of direct discrimination. However, when
the focus switches to the effects of the concerned action,
we enter the territory of indirect discrimination. An enquiry
as to indirect discrimination looks, not at the form of the
impugned conduct, but at its consequences. In a case of
direct discrimination, the judicial enquiry is confined to the
act or conduct at issue, abstracted from the social setting
or background fact-situation in which the act or conduct
takes place. In indirect discrimination, on the other hand, the
subject matter of the enquiry is the institutional or societal
framework within which the impugned conduct occurs. The
doctrine seeks to broaden the scope of antidiscrimination
law to equip the law to remedy patterns of discrimination
that are not as easily discernible.”
The Court however held that “[i]n order to conceptualize substantive
equality, it would be apposite to conduct a systemic analysis of
discrimination that combines tools of direct and indirect discrimination”,
and not just the claim of either of the two. To evaluate the claim of
discrimination, the Court laid down the following test:
“A particular discriminatory practice or provision might often
be insufficient to expose the entire gamut of discrimination
that a particular structure may perpetuate. Exclusive
reliance on tools of direct or indirect discrimination may
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also not effectively account for patterns arising out of
multiple axles of discrimination. Therefore, a systemic view
of discrimination, in perceiving discriminatory disadvantage
as a continuum, would account for not just unjust action
but also inaction. Structures, in the form of organizations
or otherwise, would be probed for the systems or cultures
they produce that influence day-today interaction and
decision-making. The duty of constitutional courts, when
confronted with such a scheme of things, would not
just be to strike down the discriminatory practices and
compensate for the harm hitherto arising out of them; but
also structure adequate reliefs and remedies that facilitate
social redistribution by providing for positive entitlements
that aim to negate the scope of future harm…
Therefore, an analysis of discrimination, with a view towards
its systemic manifestations (direct and indirect), would be
best suited for achieving our constitutional vision of equality
and antidiscrimination. Systemic discrimination on account
of gender at the workplace would then encapsulate the
patriarchal disadvantage that permeates all aspects of her
being from the outset, including reproduction, sexuality and
private choices which operate within an unjust structure.”
Applying the above principles, the Court concluded that the process
adopted by the Army to grant Permanent Commissions to women
officers “did not redress the harms of gendered discrimination that
were identified by this Court in Babita Puniya”. The Court found the
evaluation process to be an instance of “indirect discrimination” and
“systemic discrimination”, which “disproportionately affects women”.
“This discrimination”, it was held, “has caused an economic and
psychological harm and an affront to their dignity”.
46. The petitioner in Nipun Malhotra v. Sony Pictures Films India (P)
Ltd,62 was aggrieved by the manner in which persons with disabilities
have been portrayed in a movie and approached the Court seeking
directions for the inclusion of an expert on disability within the Central
Board of Film Certification and its advisory panel constituted under
Sections 3 and 5 of the Cinematograph Act, among other reliefs.

62 [2024] 7 SCR 246 : 2024 INSC 465
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This Court recapitulated “the impact of stereotypes on discrimination
and the enjoyment of fundamental rights”. It reiterated that the anti-
discrimination code under Article 15 prevents stereotyping. Regarding
the safeguards against stereotyping of persons with disabilities, the
Court held:
“… language that disparages persons with disabilities,
marginalises them further and supplements the disabling
barriers in their social participation, without the redeeming
quality of the overall message of such portrayal must
be approached with caution. Such representation is
problematic not because it offends subjective feelings
but rather, because it impairs the objective societal
treatment of the affected groups by society. We believe
that representation of persons with disabilities must regard
the objective social context of their representation and not
marginalise persons with disability…”
47. The jurisprudence evolved by this Court shows that discriminatory
laws have no place in our democracy. Discriminatory laws based on
stereotypes against a social group were stuck down in judgments
like Anuj Garg, Navtej Johar, Joseph Shine, and Indian Young
Lawyers Association. Through judgments like NALSA and Babita
Puniya, this Court recognized the dignity and aspirations of social
groups which have traditionally faced exclusion from equal rights. This
Court recognized indirect discrimination and systemic discrimination
in Lt. Col. Nitisha, emphasized the responsibility of the State to curb
discrimination in Karma Dorjee, and provided safeguards against
discriminatory stereotypes in Nipun Malhotra.
48. Based on the analysis of the judgments, certain anti-discrimination
principles emerge under Article 15(1). First, discrimination can
be either direct or indirect, or both. Second, facially neutral laws
may have an adverse impact on certain social groups, that are
marginalized. Third, stereotypes can further discrimination against
a marginalized social group. Fourth, the State is under a positive
obligation to prevent discrimination against a marginalized social
group. Fifth, discriminatory laws based on stereotypes and causing
harm or disadvantage against a social group, directly or indirectly,
are not permissible under the constitutional scheme. Sixth, courts
are required to examine the claims of indirect discrimination and
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systemic discrimination; and seventh, the test to examine indirect
discrimination and systemic discrimination has been laid down in
judgments of the Court such as Lt. Col. Nitisha.

VII. The Ban on Untouchability in Article 17
49. Article 17 of the Constitution provides that: ““Untouchability” is
abolished and its practice in any form is forbidden. The enforcement
of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.” This provision has a special
place in the Constitution. It puts an end to the socially discriminatory
practice of “untouchability”.
50. Dr Ambedkar described the impact of “untouchability” as follows:
“The word untouchable is an epitome of their ills and
sufferings. Not only has untouchability arrested the growth
of their personality but also it comes in the way of their
material well-being. It has also deprived them of certain
civil rights… The untouchable is not even a citizen.”63
Untouchability and caste discrimination led to “severe social and
economic disabilities and cultural and educational backwardness”
of the untouchables.64 Throughout history, “the oppressive nature
of the caste structure has denied to those disadvantaged castes
the fundamentals of human dignity, human self-respect and even
some of the attributes of the human personality”.65 As a system, it
enforced “disabilities, restrictions, conditions and prohibitions on Dalits
for access to and the use of places of public resort, public means,
roads, temples, water sources, tanks, bathing ghats, etc., entry into
educational institutions or pursuits of avocation or profession which
are open to all and by reason of birth they suffer from social stigma.”66
Article 17 is a constitutional sanction against discrimination. It “strikes
at caste-based practices built on superstitions and beliefs that have
no rationale or logic.”67

63 B.R. Ambedkar, “Evidence Before the Southborough Committee”, in Dr Babasaheb Ambedkar: Writings
and Speeches, Vol. 1, p. 256
64 Soosai v. Union of India, 1985 Supp SCC 590
65 Ibid
66 State of Karnataka v. Appa Balu Ingale (1995) Supp 4 SCC 469
67 Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu (2016) 2 SCC 725
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51. Article 17 has several components.68 It abolishes the practice
of “untouchability”. At the same time, it prohibits “its practice in
any form”. Furthermore, “enforcement of any disability” arising
out of “Untouchability” is a criminal offense as per the “law”. The
meaning of “law” is any legislation enacted to tackle any practice or
disability arising out of “untouchability”.69 It is a provision that can be
implemented both against the State and non-state actors such as the
citizens.70 Moreover, the framers of the Constitution did not refer to
any religion or community in the text of the provision.71 “The injunction
against untouchability under Article 17” is further “strengthened by
taking away the subject-matter from State domain and placing it as
an exclusive legislative head to Parliament.”72
52. In his concurring opinion in State of Karnataka v. Appa Balu
Ingale,73 Justice K. Ramaswamy discussed the basis of Article 17.
“The thrust of Article 17”, it was held, “is to liberate the society from
blind and ritualistic adherence and traditional beliefs which lost all
legal or moral base”. Furthermore, Article 17 “seeks to establish a
new ideal for society — equality to the Dalits, on a par with general
public”, which would give them “a sense of being a participant in the
mainstream of national life”.74
53. The constitutional vision behind Article 17 and its impact was
extensively discussed in the concurring opinion authored by one of
us (Justice DY Chandrachud) in Indian Young Lawyers Association
v. State of Kerala.75 It was held that Article 17 was made a part of
fundamental rights to fulfil the constitutional mandate of equality:
“Article 17 is the constitutional promise of equality and
justice to those who have remained at the lowest rung of
a traditional belief system founded in graded inequality… It
has been placed on a constitutional pedestal of enforceable

68 Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1 [Justice Chandrachud]
69 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
70 Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1
71 Janhit Abhiyan v. Union of India (2023) 5 SCC 1 [Dissenting opinion of Justice Ravindra Bhat on behalf
of Chief Justice Lalit and himself]
72 Ibid
73 [1992] Supp. 3 SCR 284 : 1994 SCC (Cri) 1762
74 1994 SCC (Cri) 1762
75 [2018] 9 SCR 561 : (2019) 11 SCC 1
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fundamental rights, beyond being only a directive principle,
for two reasons. First, “untouchability” is violative of the
basic rights of socially backward individuals and their
dignity. Second, the Framers believed that the abolition of
“untouchability” is a constitutional imperative to establish
an equal social order. Its presence together and on an
equal footing with other fundamental rights, was designed
to “give vulnerable people the power to achieve collective
good”. Article 17 is a reflection of the transformative
ideal of the Constitution, which gives expression to the
aspirations of socially disempowered individuals and
communities, and provides a moral framework for radical
social transformation.”
The judgment stated that “untouchability” is “a symptom” of the “caste
system” and the interconnected notions of “purity and pollution”,
which are rejected by Article 17. It was noted:
“While the top of the caste pyramid is considered pure
and enjoys entitlements, the bottom is considered polluted
and has no entitlements. Ideas of “purity and pollution” are
used to justify this distinction which is self-perpetuality.
The [so-called] upper castes perform rituals that, they
believe, assert and maintain their purity over lower castes.
Rules of purity and pollution are used to reinforce caste
hierarchies. The notion of “purity and pollution” influences
who people associate with, and how they treat and are
treated by other people.”
Article 17 rejects such notions of purity and pollution. It strikes at the
heart of the caste system, which manifests in discriminatory practices
based on the notions of purity and pollution. It was further held:
“The incorporation of Article 17 into the Constitution is
symbolic of valuing the centuries’ old struggle of social
reformers and revolutionaries. It is a move by the
Constitution makers to find catharsis in the face of historic
horrors. It is an attempt to make reparations to those,
whose identity was subjugated by society. Article 17 is a
revolt against social norms, which subjugated individuals
into stigmatised hierarchies. By abolishing “untouchability”,
Article 17 protects them from a repetition of history in
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a free nation. The background of Article 17 thus lies in
protecting the dignity of those who have been victims of
discrimination, prejudice and social exclusion. Article 17
must be construed from the perspective of its position
as a powerful guarantee to preserve human dignity and
against the stigmatization and exclusion of individuals and
groups on the basis of social hierarchism.”
The concurring opinion examined the Constituent Assembly Debates
to conclude that the framers deliberately left the term “untouchability”
in Article 17 undefined, as they wanted to give the provision a broad
scope:
“The Constitution has carefully eschewed a definition
of “untouchability”. The draftspersons realised that
even a broadly couched definition may be restrictive.
A definition would become restrictive if the words used
or the instances depicted are not adequate to cover the
manifold complexities of our social life through which
prejudice and discrimination is manifest. Hence, even
though the attention of the Framers was drawn to the fact
that “untouchability” is not a practice referable only to the
lowest in the caste ordering but also was practised against
women (and in the absence of a definition, the prohibition
would cover all its forms), the expression was designedly
left undefined… The Constitution as a constantly evolving
instrument has to be flexible to reach out to injustice based
on untouchability, in any of its forms or manifestations.
Article 17 is a powerful guarantee against exclusion. As
an expression of the anti-exclusion principle, it cannot be
read to exclude women against whom social exclusion
of the worst kind has been practised and legitimised on
notions of purity and pollution.”
Article 17 was interpreted broadly to declare that the practice of
excluding menstruating women from visiting the temple is based
on the notions of purity and pollution, which arise from the caste
system, and the practice was thus unconstitutional.
54. Article 17 enunciates that everyone is born equal. There cannot
be any stigma attached to the existence, touch or presence of
any person. By way of Article 17, our Constitution strengthens the
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equality of status of every citizen. From time to time, to implement
the mandate of Article 17, Parliament has enacted several legislations
such as the Untouchability (Offenses) Act, 1955 (later renamed as
Protection of Civil Rights Act, 1955), Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
“PoA Act”), Employment of Manual Scavengers and Construction of
Dry Latrines (Prohibition) Act, 1993, and Prohibition of Employment
as Manual Scavengers and their Rehabilitation Act, 2013. This Court,
in a number of cases, has upheld the validity of these laws.76 It
has held that offences enumerated under PoA Act “arise out of the
practice of ‘untouchability’.”77 The Court also held that the practice
of “manual scavenging” prohibited under the 2013 Act is “squarely
rooted in the concept of the caste-system and untouchability.”78 The
laws enacted under Article 17 aim to provide dignity to the affected
individuals.

VIII. Article 21: Of Life and Dignity
55. Article 21 provides that “[n]o person shall be deprived of his life or
personal liberty except according to procedure established by law”.
In a number of judgments, the Court has expanded the meaning of
“life”. It has been held that the right to life enshrined in Article 21
“cannot be restricted to mere animal existence” and “means something
much more than just physical survival”.79 It includes the right to live
with dignity.80 In fact, dignity forms a part of the basic structure of the
Constitution.81 The “references” to dignity are “found in the guarantee
against arbitrariness (Article 14), the lamps of freedom (Article 19)
and in the right to life and personal liberty (Article 21).”82 Thus,
dignity is the “core” which “unites the fundamental rights because
the fundamental rights seek to achieve for each individual the dignity

76 State of M.P. v. Ram Kishna Balothia (1995) 3 SCC 221; State of Maharashtra v. Union of India;
Prathvi Raj Chauhan v. Union of India (2020) 4 SCC 727
77 State of M.P. v. Ram Kishna Balothia (1995) 3 SCC 221
78 Safai Karamchari Andalon v. Union of India [2014] 4 SCR 197; See also Balram Singh v. Union of India,
2023 INSC 950
79 Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608
80 Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161
81 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
82 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (Privacy-9J.)
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of existence”.83 In that sense, human dignity is a constitutional value
and a constitutional goal.84
56. The Court has authoritatively ruled, “[t]o live is to live with dignity”.85
Human dignity is intrinsic to and inseparable from human existence.86
Implicit in this right under Article 21 is “the right to protection against
torture or cruel, inhuman or degrading treatment”.87 There also exists
“a close relationship between dignity and the quality of life”.88 Dignity of
human existence is fully realized only when one leads a quality life.89
57. Dignity under Article 21 is an integral aspect of life, which requires
sustenance of one’s being to the fullest.90 One can truly embrace
their identity, whether on the basis of caste, race, gender, sexual
orientation, or ethnicity, only if they are given dignity. An individual’s
dignity is fundamental to their sense of self and autonomy. Thus, the
right to dignity “encapsulates the right of every individual to be treated
as a self-governing entity having intrinsic value”.91 Above all, “there
is a growing recognition that the true measure of development of a
nation is not economic growth; it is human dignity.”92 A nation must
prioritize human dignity—ensuring that every person, regardless of
their background or identity, is able to live with respect, equality, and
freedom. Thus, human dignity forms the bedrock of social justice
and a just, compassionate society.
58. The right to live with dignity extends even to the incarcerated. Not
providing dignity to prisoners is a relic of the colonizers and pre-
colonial mechanisms, where oppressive systems were designed
to dehumanize and degrade those under the control of the State.
Authoritarian regimes of the pre-constitutional era saw prisons not
only as places of confinement but as tools of domination. This
Court, focusing on the changed legal framework brought out by the

83 Ibid
84 Jeeja Ghosh v. Union of India (2016) 7 SCC 761
85 Ibid
86 M. Nagaraj v. Union of India [M. Nagaraj v. Union of India (2006) 8 SCC 212
87 Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608
88 Common Cause v. Union of India (2018) 5 SCC 1 [Justice Chandrachud]
89 Ibid
90 Navtej Singh Johar v. Union of India (2018) 10 SCC 1
91 X2 v. State (NCT of Delhi) (2023) 9 SCC 433
92 National Legal Services Authority v. Union of India (2014) 5 SCC 438
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Constitution, has recognized that even prisoners are entitled to the
right to dignity.
59. A Constitution bench of this Court in Sunil Batra (I) v. Delhi
Administration93 took serious note of the treatment meted out to
undertrials, convicts, and those awaiting the death penalty. Justice
Krishna Iyer, in his opinion, expounded: “The humane thread of jail
jurisprudence that runs right through is that no prison authority enjoys
amnesty for unconstitutionality, and forced farewell to fundamental
rights is an institutional outrage in our system where stone walls
and iron bars shall bow before the rule of law.” He emphasized the
need to re-look at the prison conditions:
“A prison is a sound-proof planet, walled from view and
visits regulated, and so, rights of prisoners are hardly
visible, checking is more difficult and the official position
of the repository of power inspires little credibility where
the victims can be political protesters, unpopular figures,
minority champions or artless folk who might fail to
propitiate arrogant power of minor minions.”
Justice Krishna Iyer advocated for a humane system within prisons:
“In every country, this transformation from cruelty to
compassion within jails has found resistance from the
echelons and the Great Divide between pre-and-post
Constitution penology has yet to get into the metabolism
of the Prison Services. And so, on the national agenda
of prison reform is on-going education for prison staff,
humanisation of the profession and recognition of the
human rights of the human beings in their keep.”
The Court admonished the usage of iron fetters and held that the
practice of solitary confinement and cellular segregation as inhuman
and irrational:
“I hold that bar fetters are a barbarity generally and, like
whipping, must vanish. Civilised consciousness is hostile
to torture within the walled campus. We hold that solitary
confinement, cellular segregation and marginally modified

93 [1979] 1 SCR 392 : (1978) 4 SCC 494
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editions of the same process are inhuman and irrational.
More dangerous are these expedients when imposed by the
unturned and untrained power of a jail superior who has,
as part of his professional equipment, no course in human
psychology, stressology or physiology, who has to depend
on no medical or psychiatric examination prior to infliction
of irons or solitary, who has no obligation to hear the victim
before harming him, whose “reasons” are in English on
the history-tickets and therefore unknowable and in the
Journal to which the prisoner has no access… The law
is not abracadabra but at once pragmatic and astute and
does not surrender its power before scary exaggerations
of security by prison bosses... Social justice cannot sleep
if the Constitution hangs limp where its consumers most
need its humanism.”
60. In Charles Sobraj v. Supdt., Central Jail,94 this Court upheld the
constitutionally guaranteed fundamental rights of prisoners against the
undue harshness of prison practices. Justice Krishna Iyer observed:
“a prison system may make rational distinctions in making
assignments to inmates of vocational, educational and work
opportunities available, but is constitutionally impermissible
to do so without a functional classification system. The
mere fact that a prisoner is poor or rich, high-born or ill-
bred, is certainly irrational as a differentia in a ‘secular,
socialist republic’... 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 heights when challenging
situations arise.”
61. In Sunil Batra (II) v. Delhi Administration,95 this Court emphasized
that a person in prison does not cease to be a human being or lose
all human rights, and that it is the duty of the State to take care of
justifiable needs and requests. It was held that “in the eye of law,
prisoners are persons, not animals”, and that courts must “punish

94 [1979] 1 SCR 512 : (1978) 4 SCC 104
95 (1980) 3 SCC 488
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the deviant ‘guardians’ of the prison system where they go berserk
and defile the dignity of the human inmate”. Speaking for the Court,
Justice Krishna Iyer held:
“Prison houses are part of Indian earth and the Indian
Constitution cannot be held at bay by jail officials “dressed
in a little, brief authority”, when Part III is invoked by a
convict. For when a prisoner is traumatized, the Constitution
suffers a shock…
Whether inside prison or outside, a person shall not be
deprived of his guaranteed freedom save by methods
“right, just and fair”…
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.”
The Court also noted down various injustices which may be committed
against a prisoner:
“Inflictions may take many protean forms, apart from physical
assaults. Pushing the prisoner into a solitary cell, denial
of a necessary amenity, and, more dreadful sometimes,
transfer to a distant prison where visits or society of friends
or relations may be snapped, allotment of degrading labour,
assigning him to a desperate or tough gang and the like,
may be punitive in effect. Every such affliction or abridgment
is an infraction of liberty or life in its wider sense and cannot
be sustained unless Article 21 is satisfied.”
62. The Court in Kishore Singh Ravinder Dev v. State of Rajasthan96
reiterated that the infliction of physical torture on the undertrial prisoner

96 [1981] 1 SCR 995 : (1981) 1 SCC 503
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is a violation of Article 21. It was held that “the State must re-educate
the constabulary out of their sadistic arts and inculcate a respect for
the human person — a process which must begin more by example
than by precept if the lower rungs are really to emulate”. The Court
ruled that if any escort policemen are found guilty of misconduct,
the authorities must not allow a sense of police solidarity or internal
camaraderie to shield the wrongdoing. There is no greater harm to
our constitutional values than a State official acting recklessly and
violating fundamental rights. The Court expressed hope that the root
causes enabling police brutality will be addressed by the government
with the seriousness it deserves. The Court posed the question:
“Who will police the police?”
63. In Francis Coralie Mullin v. Administrator, Union Territory of
Delhi,97 the Court struck down a rule which regulated the right of
a detenu to have interviews with a legal adviser of his choice as
violative of Articles 14 and 21. The Court held that “as part of the
right to live with human dignity” and “as a necessary component of
the right to life”, a detenu “would be entitled to have interviews with
the members of his family and friends” and “to have interview with
his legal adviser at any reasonable hour during the day after taking
appointment from the Superintendent of the Jail”. Such appointment,
it was held, “should be given by the Superintendent without any
avoidable delay.” Correspondingly, when Sheela Barse,98 a freelance
journalist, sought permission to interview prisoners, this Court held
that the press and citizens are entitled to interview prisoners in order
to ensure the availability of their rights under Article 21, subject to
reasonable restrictions. It was noted, “Prison administrators have the
human tendency of attempting to cover up their lapses and so shun
disclosure thereof… Interviews become necessary as otherwise the
correct information may not be collected but such access has got to
be controlled and regulated.”
64. In Nilabati Behera v. State of Orissa,99 this Court emphasized
“great responsibility on the police or prison authorities to ensure
that the citizen in its custody is not deprived of his right to life”.

97 [1981] 2 SCR 516 : (1981) 1 SCC 608
98 Sheela Barse v. State of Maharashtra (1987) 4 SCC 373
99 [1993] 2 SCR 581 : (1993) 2 SCC 746
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While confinement inherently restricts a person’s liberty, the limited
freedom they retain becomes all the more valuable. The State has
a strict duty of care in such situations, without exception. This Court
declared that if a person in police custody is deprived of life, except
according to the procedure established by law, the wrongdoer is held
accountable, and the State is ultimately responsible.
65. This Court laid down guidelines on arrest and detention in D.K.
Basu v. State of West Bengal,100 while highlighting the constitutional
violations caused due to custodial violence and deaths in police lock-
ups. It noted, “If the functionaries of the Government become law-
breakers, it is bound to breed contempt for law and would encourage
lawlessness and every man would have the tendency to become law
unto himself thereby leading to anarchism”. In Mehmood Nayyar
Azam v. State of Chhattisgarh,101 it was noted that a person in
custody has “his basic human rights” and human dignity, and that
the police officers cannot treat him in an inhuman manner. It was
held that even “any treatment meted out to an accused while he is
in custody which causes humiliation and mental trauma corrodes
the concept of human dignity”.
66. In Shabnam v. Union of India,102 this Court elucidated the principle
that human dignity should be preserved even when a prisoner is
sentenced to death. The Court held, “the process/procedure from
confirmation of death sentence by the highest court till the execution
of the said sentence, the convict is to be treated with human dignity
to the extent which is reasonable and permissible in law”. Similarly,
in ‘X’ v. State of Maharashtra,103 the Court while holding that
“post conviction severe mental illness will be a mitigating factor” in
commuting the death sentence, emphasized that the “right to dignity
of an accused does not dry out with the Judges’ ink, rather, it subsists
well beyond the prison gates and operates until his last breath”.
67. Thus, the jurisprudence which emerges on the rights of prisoners
under Article 21 is that even the incarcerated have inherent dignity.
They are to be treated in a humanely and without cruelty. Police

100 [1996] Supp. 10 SCR 284 : (1997) 1 SCC 416
101 [2012] 8 SCR 651 : (2012) 8 SCC 1
102 [2015] 8 SCR 289 : (2015) 6 SCC 702
103 [2019] 6 SCR 1 : (2019) 7 SCC 1
548 [2024] 10 S.C.R.

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officers and prison officials cannot take any disproportionate measures
against prisoners. The prison system must be considerate of the
physical and mental health of prisoners. For instance, if a prisoner
suffers from a disability, adequate steps have to be taken to ensure
their dignity and to offer support.

IX. Article 23: Prohibition of Forced Labour and Human
Trafficking
68. Article 23 provides that:
“Prohibition of traffic in human beings and forced
labour.—
(1) Traffic in human beings and begar and other similar
forms of forced labour are prohibited and any contravention
of this provision shall be an offence punishable in
accordance with law.
(2) Nothing in this article shall prevent the State from
imposing compulsory service for public purposes, and
in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or
class or any of them.”
Article 23(1) provides an enforceable fundamental right against social
and economic exploitation. It aims to prohibit human trafficking,
“begar”, and “other similar forms of forced labour”. Like Articles
15(2) and 17, it is enforceable both against the State and non-state
actors. At the same time, the scope of the provision is wide, as it
has left the term “begar” undefined, and supplemented by the phrase
“other similar forms of forced labour”. The “other similar forms” can
be many. The framers of the Constitution consciously left the terms
undefined so that future interpretation is not restrictive.
69. Interestingly, the foundations of Article 23 were laid even prior
to the discussions in the Constituent Assembly. In his work titled
“States and Minorities” (1947),104 Dr Ambedkar conceptualized the
interlinkages between one’s economic condition and their ability to
exercise fundamental rights. He wrote, “The fear of starvation, the

104 B.R. Ambedkar, “States and Minorities”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p.
393, https://www.mea.gov.in/Images/CPV/Volume1.pdf [See Article II, Section I, Clause 9].
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fear of losing a house, the fear of losing savings if any, the fear of
being compelled to take children away from school, the fear of having
to be a burden on public charity, the fear of having to be burned or
buried at public cost are factors too strong to permit a man to stand
out for his Fundamental Rights.”105 In his view, “The unemployed are
thus compelled to relinquish their Fundamental Rights for the sake
of securing the privilege to work and to subsist.”106 Dr. Ambedkar
proposed that the rights of individuals should be protected from
exploitation by adopting a favourable constitutional framework.107 The
intellectual background of Article 23 lies in what Dr Ambedkar was
explaining – to facilitate the citizens in exercising their fundamental
rights.108 Exploitative socio-economic practices can hinder the right
to live a dignified life.
70. In adopting Article 23(1) in the Constitution, the framers were
conscious of oppressive practices such as Slavery in the United
States as well as domestic practices of exploiting labour of the
Bahujan castes and poor sections of society.109 Several members
of the Constituent Assembly, who came from the Scheduled Caste
communities expressed their support for Article 23, as they believed
that such a provision would prevent economic exploitation of their
community. V.I. Muniswamy Pillai stated, “If there is any labour
required for common purposes in the village, this most unfortunate
fellow, the Harijan [Scheduled Caste], is always caught hold of to do
all menial and inferior service.”110 By the provision, he was confident
that the country would be “elevating a community that has been
outside the pale of society”. S. Nagappa gave examples of how
“begar” was imposed on the Scheduled Castes:
“Sir, whenever cattle die; the owner of the cattle wants
these poor Harijans to come and remove the dead cattle,
remove the skins, tan them and make chappals and
supply them free of cost. For this, what do they get?

105 Ibid, pp. 409-410
106 Ibid, p. 410
107 Ibid
108 Anurag Bhaskar, The Foresighted Ambedkar: Ideas That Shaped Indian Constitutional Discourse,
Penguin (2024), pp. 176-191.
109 B. Shiva Rao, Framing of India’s Constitution, Vol. 5, pp. 249-257.
110 Constituent Assembly Debates (8 November 1948)
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Some food during festival days. Often, Sir, this forced
labour is practised even by the government. For instance,
if there is any murder, after the postmortem, the police
force these people to remove the dead body and look to
the other funeral processes. I am glad that hereafter this
sort of forced labour will have no place. Then, Sir, this is
practised in zamindaries also. For instance, if there is a
marriage in the zamindar’s family, he will ask these poor
people, especially the Harijans, to come and white wash
his whole house, for which they will be given nothing
except food for the day…
… whenever the big zamindar’s lands are to be ploughed,
immediately he will send word for these poor people, the
Harijans, the previous day, and say: “All your services
are confiscated for the whole of tomorrow; you will have
to work throughout the day and night. No one should go
to any other work.” In return, the zamindar will give one
morsel of food to these poor fellows. Sir, this sort of forced
labour is in practice in the 20th century in our so called
civilised country.”111
(emphasis added)
71. Another member from the Scheduled Caste community, H.J.
Khandekar, expressed his happiness “to see in the Constitution that
begar and forced labour are abolished and the curse on untouchables
from whom the begar and forced labour were taken has gone”.112 Raj
Bahadur also gave examples how “begar” was practiced:
“I know how some of the Princes have indulged in their
pomp and luxury, in their reckless life, at the expense of
the ordinary man, how they have used the down-trodden
labourers and dumb ignorant people for the sake of their
pleasure. I know for instance how for duck shooting a very
large number of people are roped in forcibly to stand all
day long in mud and slush during cold chilly wintry days.
I know how for the sake of their game and people have

111 Constituent Assembly Debates (3 December 1948)
112 Constituent Assembly Debates (21 November 1949)
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been roped in large numbers for beating the lion so that
the Princes may shoot it. I have also seen how poor people
are employed for domestic and other kinds of labour, no
matter whether they are ailing or some members of their
family are ill. These people are paid nothing or paid very
little for the labour extorted from them.”
He stated that Article 23 will free “downtrodden millions” from the
handcuffs of exploitation. T.T. Krishnamachari said that “some form of
forced labour does exist in practically all parts of India, call it ‘begar’
or anything like that and in my part of the country, the tenant often
times is more or less a helot attached to the land and he has certain
rights and those are contingent on his continuing to be a slave.”
72. While the framers did not define the term “begar”, they largely referred
to those practices, where the workers were either unpaid or paid
very little for their jobs. “Begar” or bonded labour was entrenched in
India’s social system, against which Article 23 makes a blow. Over
the years, this Court has taken a strict view against bonded labour
in existence in society.
73. The Court in People’s Union for Democratic Rights v. Union
of India113 considered the scope of the terms “begar” and “forced
labour” under Article 23(1). The Court entertained a letter as a writ
petition, which sought compliance with the provisions of labour laws
in relation to workmen employed in the construction work of projects
connected with the Asian Games. The petitioner contended that the
labourers were also not paid their minimum daily wages, and were
not provided with proper living conditions. The Court observed that
the issue related to a “breach of a fundamental right” under Article 23.
74. The judgment noted that the framers of the Constitution adopted
Article 23 to put an enforceable obligation on the State to end
bonded labour, which was “the relic of feudal exploitative society”
and “incompatible with the new egalitarian socio-economic order”. It
was further stated that the term “begar” is of Indian origin, referring
loosely to “labour or service which a person is forced to give without
receiving any remuneration for it”. The judgment held that the phrase
“forced labour” is of wide amplitude and would cover instances “where

113 [1983] 1 SCR 456 : (1982) 3 SCC 235
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a person provides labour or service to another for remuneration which
is less than the minimum wage”. “Forced labour” may manifest in
many forms. It was held that labour provided as a result of any kind
of force or compulsion would be counted as “forced labour” under
Article 23(1). It was held:
“What Article 23 prohibits is “forced labour” that is labour
or service which a person is forced to provide and “force”
which would make such labour or service “forced labour”
may arise in several ways. It may be physical force which
may compel a person to provide labour or service to
another or it may be force exerted through a legal provision
such as a provision for imprisonment or fine in case the
employee fails to provide labour or service or it may even
be compulsion arising from hunger and poverty, want and
destitution. Any factor which deprives a person of a choice
of alternatives and compels him to adopt one particular
course of action may properly be regarded as “force” and
if labour or service is compelled as a result of such “force”,
it would be “forced labour”. Where a person is suffering
from hunger or starvation, when he has no resources at
all to fight disease or to feed his wife and children or even
to hide their nakedness, where utter grinding poverty has
broken his back and reduced him to a state of helplessness
and despair and where no other employment is available
to alleviate the rigour of his poverty, he would have no
choice but to accept any work that comes his way, even if
the remuneration offered to him is less than the minimum
wage. He would be in no position to bargain with the
employer; he would have to accept what is offered to
him. And in doing so he would be acting not as a free
agent with a choice between alternatives but under the
compulsion of economic circumstances and the labour or
service provided by him would be clearly “forced labour”.
It was held that non-payment of minimum wage to workmen in the
Asian Games project was a violation of their fundamental right under
Article 23. The judgment also laid down an important constitutional
principle that when fundamental rights such as under Articles 17 or
23 are violated by private individuals, then “it is the constitutional
obligation of the State to take necessary steps for the purpose of
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interdicting such violation and ensuring observance of the fundamental
right by the private individual who is transgressing the same”.
75. The interpretation of Article 23 laid down in PUDR was relied upon
in a subsequent decision in Sanjit Roy v. State of Rajasthan.114
A writ petition was filed seeking payment of minimum wages to
women workers belonging to Scheduled Castes, who were engaged
in a construction project of the Rajasthan government, under the
Minimum Wages Act, 1948. It was argued by the State government
that the construction project was a famine relief work, and payment
of minimum wages in such projects was exempted by the Rajasthan
Famine Relief Works Employees (Exemption Act from Labour Law)
Act, 1964. The Court declared the Exemption Act, in so far as it
excluded the applicability of the Minimum Wages Act 1948 to workmen
employed on famine relief work and permitted the payment of less
than the minimum wage to such workmen as violative of Article 23.
It was held:
“The State cannot be permitted to take advantage of the
helpless condition of the affected persons and extract
labour or service from them on payment of less than the
minimum wage. No work of utility and value can be allowed
to be constructed on the blood and sweat of persons who
are reduced to a state of helplessness on account of
drought and scarcity conditions. The State cannot under
the guise of helping these affected persons extract work
of utility and value from them without paying them the
minimum wage.”
Justice Pathak wrote a concurring opinion, holding the Exemption Act
to be violative of Article 14. The Court directed the State government
to pay the arrears of the difference between the minimum wage and
the actual wage paid to the construction workers.
76. It was pointed out to this Court in Labourers Working on Salal
Hydro Project v. State of Jammu & Kashmir115 that a large number
of migrant workmen from different States working on a hydro-electric
project were denied the benefit of labour laws and were exploited by

114 [1983] 2 SCR 271 : (1983) 1 SCC 525
115 [1983] 2 SCR 473 : (1983) 2 SCC 181
554 [2024] 10 S.C.R.

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the contractors. This Court directed the Union government to ensure
that its senior officers carry out thorough inspections of the project at
regular intervals to verify whether the labour laws are being properly
followed, particularly concerning workmen employed, either directly
or indirectly, by the contractors or sub-contractors.
77. In Bandhua Mukti Morcha v. Union of India,116 the petitioner
had highlighted the issue of bonded labourers in stone quarries of
Faridabad district and and their inhuman living conditions. Referring
to the provisions of the Bonded Labour System (Abolition) Act 1976,
the judgment discussed the meaning of “bonded labour”. According
to the Act, a bonded labourer is someone who has incurred or is
presumed to have incurred a bonded debt.117 A bonded debt refers
to an advance received or presumed to have been received by
a bonded labourer under or in pursuance of the bonded labour
system.118 The inference of this definition, according to the State
government, was that bonded labourers must first prove that they
are providing forced labour in consideration of an advance or other
economic consideration received by them. The Court rejected this
reasoning, stating that it would be “cruel to insist” that a bonded
labourer “should have to go through a formal process of trial with
the normal procedure for recording of evidence.” It was further
observed that “a bonded labourer can never stand up to the rigidity
and formalism of the legal process due to his poverty, illiteracy and
social and economic backwardness and if such a procedure were
required to be followed, the State Government might as well obliterate
this Act from the statute book”. The Court also noted that statistically,
“most of bonded labourers are members of Scheduled Castes and
Scheduled Tribes or other backward classes”.
78. The judgment held that whenever a labourer is made to provide
forced labour, the presumption would be that it is consideration of an
advance or other economic consideration received by him, and he is
thus a bonded labourer. This presumption may, however, be rebutted
by the employer or the State Government by providing satisfactory
material. The Court reiterated the constitutional obligation of the

116 [1984] 2 SCR 67 : (1984) 3 SCC 161
117 Section 2(f), Bonded Labour System (Abolition) Act 1976
118 Section 2(d), Bonded Labour System (Abolition) Act 1976
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Union government and the State government to ensure observance
of various social welfare and labour laws enacted for the benefit of
the workmen. The State government was directed “to take up the
work of identification of bonded labour as one of their top priority
tasks and to map out areas of concentration of bonded labour”. The
concurring opinion regarded Article 23 as “a vital constituent of the
Fundamental Rights”.
79. Pursuant to this Court’s decision in Bandhua Mukti Morcha, 135
bonded labourers were released from bondage in stone quarries of
Faridabad district, under the provisions of the Bonded Labour System
(Abolition) Act, 1976. However, they were not rehabilitated even after
a lapse of several months. This inaction of the State government
was brought before this Court in Neeraja Chaudhary v. State of
Madhya Pradesh.119 The Court directed the State government to
provide rehabilitative assistance to these 135 freed bonded labourers
within one month. It noted with compassion, “They have waited too
long; they cannot wait any longer”. This Court also directed the State
government to ascertain within its territory whether there were any
more bonded labourers or not, by applying the principle laid down
in Bandhua Mukti Morcha. It was reiterated, “Whenever it is found
that any workman is forced to provide labour for no remuneration or
nominal remuneration, the presumption would be that he is a bonded
labourer unless the employer or the State Government is in a position
to prove otherwise by rebutting such presumption.”
80. The issue of bonded labourers in stone quarries in several districts of
Andhra Pradesh was highlighted before this Court in P. Sivaswamy
v. State of Andhra Pradesh.120 The Court emphasized on “effective
rehabilitation” of bonded labourers. It was stated, “Uprooted from
one place of bonded labour conditions the persons are likely to be
subjected to the same mischief at another place”. The Court appealed
for “requisite social consciousness”, where it is “the obligation of
every citizen to cooperate” to bring an end to bonded labour.
81. In State of Gujarat v. Hon’ble High Court of Gujarat,121 a three-judge
Bench dealt with the question whether prisoners, who are required to

119 (1984) 3 SCC 243
120 [1988] Supp. 2 SCR 346 : (1988) 4 SCC 466
121 AIR 1998 SC 3164
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do labour as part of their punishment should be paid minimum wages
for such work. This Court held that jail authorities are “enjoined by law
to impose hard labour” on convicted prisoners who were sentenced
to rigorous imprisonment, irrespective of “whether he consents to do
it or not”. However, undertrials, detainees with simple imprisonment,
or even detenus who are kept in jails as preventive measures cannot
be “asked to do manual work during their prison term.” Justice KT
Thomas, speaking for the Court, held that “a directive from the court
under the authority of law to subject a convicted person (who was
sentenced to rigorous imprisonment) to compulsory manual labour
gets legal protection under the exemption provided in Clause (2)
of Article 23 of the Constitution, as it “serves a public purpose” of
reforming the convict and rehabilitating them in future with savings
earned from such labour. The Court held that a prisoner “should be
paid equitable wages for the work done by them”. It directed the
State to fix the quantum of equitable wages payable to prisoners,
which would be calculated after deducting the expenses incurred
for food and clothes of the prisoners from the minimum wage rates.
82. However, in his concurring opinion, Justice D.P. Wadhwa differed
with Justice Thomas’ invocation of Article 23. According to him,
“there will be no violation of Article 23 if prisoners doing hard labour
when sentenced to rigorous imprisonment are not paid wages”.
He, however, observed that the State is free to enact legislation for
granting wages to prisoners subject to hard labour under courts’
orders, for their beneficial purpose or otherwise. Justice M.M. Punchhi,
in his concurrence with Justice Thomas, made no comment on the
application of Article 23.
The inference of this judgment, however, is not that imposing
mandatory labour on convicts is entirely immune from the operation
of Article 23. Reading Article 23 with Article 21 and the decision in
Sunil Batra (II),122 a convict cannot be subjected to “allotment of
degrading labour”.
83. In Public Union for Civil Liberties v. State of Tamil Nadu,123 when
the issue of bonded labourers and their exploitation was again brought
to the notice of this Court, a two-judge Bench issued a fresh set of

122 [1980] 2 SCR 557 : 1979 INSC 271
123 [2012] 9 SCR 579 : (2013) 1 SCC 585
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directives to the State. Among other directions the bench directed
proper and effective implementation of the Minimum Wages Act, the
Workmens’ Compensation Act, the Inter-State Migrant Workmen Act,
and the Child Labour (Prohibition and Regulation) Act.
84. A three-judge Bench of this Court in Gujarat Mazdoor Sabha v.
State of Gujarat124 adjudicated a challenge to two notifications issued
by the Gujarat government under section 5 of the Factories Act,
1948, during the COVID19 pandemic. These notifications exempted
factories from observing some of the obligations which employers
have to fulfil towards the workmen employed by them. According to
the notifications, among other provisions, all factories registered under
the Act were exempted “from various provisions relating to weekly
hours, daily hours, intervals for rest, etc. for adult workers”. One of
us (Justice DY Chandrachud) authored the judgment, declaring that
the notifications issued by the government during the pandemic were
ultra vires and against the fundamental rights of labourers. The Court
stated that “[t]o a worker who has faced the brunt of the pandemic
and is currently laboring in a workplace without the luxury of physical
distancing, economic dignity based on the rights available under
the statute is the least that this Court can ensure them.” It was held
that “[t]he notifications, in denying humane working conditions and
overtime wages provided by law, are an affront to the workers’ right
to life and rights against forced labour that are secured by Articles
21 and 23 of the Constitution.”
85. What emerges from the above discussion is that the broad scope of
Article 23 can be invoked to challenge practices where no wages are
paid, non-payment of minimum wages takes place, social security
measures for workers are not adopted, rehabilitation for bonded
labour does not happen, and in similar unfair practices. The State
shall be held accountable even in cases where the violation of
fundamental rights such as Article 23 is done by private entities or
individuals. Article 23 can also be applied to situations inside prisons,
if the prisoners are subjected to degrading labour or other similar
oppressive practices.
86. Having analysed the philosophy of the Constitution and the principles
under Articles 14, 15, 17, 21, and 23, we must now reflect on the

124 [2020] 13 SCR 886 : (2020) 10 SCC 459
558 [2024] 10 S.C.R.

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patterns of discrimination against the Scheduled Castes, Scheduled
Tribes, and Denotified Tribes. This exercise is necessary to examine
and understand the systemic discrimination based on caste against
these communities, of which the impugned provisions are an instance.
The counsel for the petitioner has argued that the impugned provisions
are an example of State-sanctioned caste-based discrimination.
Analysing the systemic discrimination not only requires looking at
the colonial era, but also the pre-colonial era. Doing so will present
before us the exact patterns of discrimination against Scheduled
Castes, Scheduled Tribes, and Denotified Tribes over the course of
history, which the Constitution seeks to remedy.

X. A History of Discrimination in the Pre-Colonial Era
87. The history of India has witnessed centuries of discrimination towards
the oppressed castes. Violence, discrimination, oppression, hatred,
contempt, and humiliation, towards these communities were the
norm. The caste system entrenched these social injustices deeply
within society, creating an environment where the principles of
natural justice were blatantly disregarded. In this hierarchical system,
neutrality was virtually non-existent, and there was an inherent and
pervasive bias against those belonging to the oppressed castes. This
bias manifested in numerous ways, including exclusion from social,
economic, and political opportunities. The caste system ensured that
the oppressed castes remained marginalized and deprived of their
basic rights and dignity.
88. The foundational principle of equality for all individuals was absent in
the social framework defined by caste. The caste system operated
as a mechanism that thrived on the labour of Bahujan communities,
ultimately eroding their identity. In other words, the story of the caste
system is, therefore, a story of enduring injustice. It is a narrative of
how millions of Indians, relegated to the bottom of the social ladder,
faced relentless discrimination and exploitation. The lower castes were
systematically denied access to education, land and employment,
further entrenching their disadvantaged position in society.
89. The caste system led to harrowing practices of discrimination and
subjugation, rooted in the notions of purity and pollution, where
some communities were deemed impure, and their presence was
considered contaminated. The penal sanctions and discriminatory
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practices under the caste system have been well-documented in
several scholarly works. Dr. Ambedkar referred to this as the “law
of caste” in his writings.125
90. The caste system was based on four varnas or groupings. Dr.
Ambedkar described the caste system in the following words:
“One striking feature of the caste system is that the different
castes do not stand as an horizontal series all on the same
plane. It is a system in which the different castes are placed
in a vertical series one above the other… the Brahmin is
placed at the first in rank. Below him is the Kshatriya. Below
Kshatriya is the Vaishya. Below Vaishya is the Shudra and
Below Shudra is the Ati-Shudra (the Untouchables). This
system of rank and gradation is, simply another way of
enunciating the principle of inequality…. This inequality
in status is not merely the inequality that one sees in the
warrant of precedence prescribed for a ceremonial gathering
at a King’s Court. It is a permanent social relationship
among the classes to be observed— to be enforced—at
all times in all places and for all purposes….”126
In his classic “Annihilation of Caste”, Dr. Ambedkar stated that:
“the Varnavyavastha is like a leaky pot or like a man running
at the nose. It is incapable of sustaining itself by its own
virtue and has an inherent tendency to degenerate into
a caste system unless there is a legal sanction behind it
which can be enforced against every one transgressing
his Varna.”127
Castes were considered “self-enclosed units”,128 which could not
be changed. That is, was assigned to individuals at birth, with each
caste linked to a specific profession, and all castes organized into
a hierarchical structure.

125 B.R. Ambedkar, “Castes in India”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 16;
B.R. Ambedkar, “Annihilation of Caste”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p.
54.
126 B.R. Ambedkar, “Philosophy of Hinduism”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 3,
pp. 25-26.
127 B.R. Ambedkar, “Annihilation of Caste”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p.
86
128 B.R. Ambedkar, “Castes in India”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 18
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91. Dr Ambedkar also theorized that an essential aspect of the caste
system was the control over the sexuality of women. In “Castes
in India”, he stated: “Sati, enforced widowhood and girl marriage
are customs that were primarily intended to solve the problem of
the surplus man and surplus woman in a caste and to maintain its
endogamy. Strict endogamy could not be preserved without these
customs, while caste without endogamy is a fake.”129
92. Scholars have also stated that “the idea of criminal tribe”130 existed
even before the British colonisers. Anthropologist Anastasia Piliavsky
noted, “while colonial uses of the stereotype add up to a lurid history
of violence against people branded as congenital criminals in colonial
law, the stereotype itself has a history stretching back far beyond
British colonialism.”131
93. The caste system permeated itself in several ways. First, it was based
on a hierarchy of four caste-based groupings, where the Shudras
occupied the lowest level. Second, the castes outside these four
groupings were treated as “untouchables”. Third, the caste system
controlled the sexuality or agency of women to maintain the sanctity
of caste. Fourth, the caste structure considered certain castes and
tribal communities as professional criminals. Fifth, penal sanctions
were imposed on those who violated the “law of caste”.
94. The rules of caste continued in medieval history. The law of caste
manifested in several ways– with each manifestation causing a form
of violence against the oppressed communities.

XI. The Colonial Suppression of Marginalized Castes and Tribes
95. The colonial history indicates that the British reproduced the systems
of social hierarchy in their legal framework. Following several revolts
from indigenous communities in India, in particular their participation
in the 1857 revolt, the British focused on restricting their activities.
The British increased surveillance upon them by the Thuggee Act
(XXX of 1836) and Dacoity Act (XXIV of 1843).

129 B.R. Ambedkar, “Castes in India”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 14
130 Anastasia Pilavsky, “The ‘Criminal Tribe’ in India before the British”, Comparative Studies in Society and
History 57, no. 2 (2015): 323–54, at p. 327
131 Ibid, p. 325
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96. Reference must be drawn to the statement of J. F. Stephen, legal
member of the Viceroy’s Council, who in the early 1870s, stated:
“The caste system is India’s distinguishing trait. By virtue
of this system, merchants are constituted in a caste, a
family of carpenters will remain a family of carpenters for
a whole century from now, or five centuries from now, if
it survives that long. Let us bear that in mind and grasp
quickly what we mean here by professional criminals. We
are dealing here with a tribe whose ancestors have been
criminals since the very dawn of time, whose members are
sworn by the laws of their caste to commit crime... for it is
his vocation, his caste, I would go to the extent of saying
his faith, to commit crimes (from Fourcade 2003: 146).”132
These caste-based stereotypes were given the form of the Criminal
Tribes Act of 1871.
i. Criminal Tribes Acts
97. The legislation of 1871 empowered the government to declare any
community as “criminal tribe”.133 The Act provided for the “registration,
surveillance and control” of “criminal tribes” and “eunuchs”. The major
part of the Act operated in the North-Western province, Punjab and
Oudh.134 The Act allowed the local government, with due permission
of the Governor General in Council, to designate any “tribe, gang
or class of persons” as “criminal tribes” if they were deemed to be
“addicted to systematic commission of non-bailable offences”.135
The local government needed to give a comprehensive report to the
Governor General giving reasons for declaring any tribe as criminal
and also provide a manner in which these tribes would earn their
livelihood.136
98. The Act authorized the local government to term a “wandering tribe”
having no fixed place of residence as criminals, except in cases

132 Anastasia Pilavsky, “The ‘Criminal Tribe’ in India before the British”, Comparative Studies in Society and
History 57, no. 2 (2015): 323–54, at p.326
133 Section 2, Criminal Tribes Act 1871.
134 Section 1, Criminal Tribes Act, 1871.
135 Section 2, Criminal Tribes Act, 1871.
136 Section 3, Criminal Tribes Act, 1871.
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where they can identify a “lawful occupation” of the tribe.137 The
government was allowed to settle such tribes in a specified place.138
Subsequently, with the authorization of the Governor General, the
local government will publish the declaration of criminal tribes in
the local gazette in form of a notification.139 Such notification acted
as conclusive proof of the applicability of the provisions of the Act
on the tribe and debarred any judicial review irrespective of any
procedural non-compliance.140
99. Members of the designated criminal tribes were required to mark
their presence in a register made by the magistrate, failing which
they were subjected to penalties in accordance with the provision of
the Indian Penal Code.141 Such a register was kept in the custody of
the District Superintendent of Police.142 A person aggrieved by any
entry in the register could request alteration by filing a complaint
before the Magistrate, who had the final say.143 The designated
criminal tribes were forced to either settle or move to another
place chosen by the local government,144 or could be moved to
any reformatory settlement.145 Headmen, village-watchmen and
landowners or occupiers of the village were informed about the
designated criminal tribes.146 They were subjected to frequent
checks, and their movements were closely monitored.147 The local
government could restrict their movement within a territorial limit.148
The designated criminal tribes required permission to move from one
place to another.149 They were mandated to carry “passes” which had
permission to move to another specified place.150 The Act allowed

137 Section 4, Criminal Tribes Act, 1871.
138 Section 4, Criminal Tribes Act, 1871.
139 Section 5, Criminal Tribes Act, 1871.
140 Section 6, Criminal Tribes Act, 1871.
141 Section 9, Criminal Tribes Act, 1871.
142 Section 10, Criminal Tribes Act, 1871.
143 Section 12, Criminal Tribes Act, 1871.
144 Sections 13, 14, Criminal Tribes Act, 1871.
145 Section 17, Criminal Tribes Act, 1871.
146 Section 18(ii), Criminal Tribes Act, 1871.
147 Section 18 (viii), Criminal Tribes Act, 1871.
148 Section 18 (iv), Criminal Tribes Act, 1871.
149 Section 18(v), Criminal Tribes Act, 1871.
150 Section 18(v), Criminal Tribes Act, 1871.
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the government to employ the individuals from designated criminal
tribes “placed in a reformatory settlement”.151
100. The Act included provisions for punitive measures against members
of the criminal tribes, including rigorous imprisonment extending
from six months (in first breach) to one year (in second breach),
whipping, or fine, if they were found violating the Act’s provisions.152
It gave extensive powers to any police officer, or village watchman to
arrest without warrant a person of a designated criminal tribe, if they
move beyond any prescribed limits of residence without a pass.153
The Act mandated “every village-headman and village-watchman”,
and “every owner or occupied of land” to inform the police about the
absence of a person from a designated criminal tribe or the arrival
in the village of such persons “who may reasonably be suspected
of belonging” to a criminal tribe.154
101. The Act also mandated creation of “a register of the names and
residence of all eunuchs residing” in the territorial jurisdiction of the Act,
“who are reasonably suspected of kidnapping or castrating children,
or of committing offences under section [377] of Indian Penal Code,
or of abetting the commission of any of the said offences”.155 The
“eunuchs” were required to give information of their property.156 The
Act further provided for arrest and punishment, including imprisonment
up to two years, or fine, or both, of a “eunuch”, “who appears dressed
or ornamented like a woman, in a public street” or even in a private
space visible from a public street, or “dances or plays music, or takes
part in any public exhibition, in a public street or place of for hire in a
private house”.157 The Act imposed a penalty on a “eunuch”, if a boy
under 16 years of age was found in his house or “under his control”.158
The Act also prohibited “eunuchs” of “being or acting as guardian to
any minor”, “making a gift”, “making a will”, or “adopting a son”.159

151 Section 18(xii), Criminal Tribes Act, 1871.
152 Section 19, Criminal Tribes Act, 1871.
153 Section 20, Criminal Tribes Act, 1871.
154 Section 21, Criminal Tribes Act, 1871.
155 Section 24(a), Criminal Tribes Act, 1871.
156 Section 24(b), Section 30, Criminal Tribes Act, 1871.
157 Section 26, Criminal Tribes Act, 1871.
158 Section 27, Criminal Tribes Act, 1871.
159 Section 29, Criminal Tribes Act, 1871.
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102. The provisions of the CTA were based on a stereotype which
considered several marginalized communities as born criminals. By
declaring them as born criminals and assuming that they are addicted
to the commission of a crime, the Act restricted their life and identity
in a negative way. The Act imposed unnecessary and disproportionate
restrictions on their movement. It also took away the opportunity
from them to settle in a place, as it was prescribed that they could
be forced to move to another place decided by the government. This
was forced nomadism. The Act, further, subjected the criminal tribes
to heightened surveillance, as their movements were frequently and
closely monitored. It also led to social discrimination, as it imposed a
stigma of born criminality. At the same time, it gave extensive powers
to local village headmen (generally higher caste) to collaborate with
the police to report their movements. The Act was also based on
a stereotype and further reinforced that “eunuchs” are suspected
of kidnapping or castrating children. Thus, the impact of CTA was
discriminatory and punitive.
103. The Act was first amended in 1876 to extend its operation to Bengal.160
The agents of landowners were also given the duty to inform the
police about the presence or absence of any individual from a criminal
tribe.161 The Act was then modified in 1897 to make the penalties
more stringent Penalties for second and third convictions of individuals
from the designated criminal tribes for specified offenses were
imposed.162 The amendment also empowered the local governments
“to separate children of the Criminal Tribes between the ages of 4
and 18 years from their irreclaimable parents” and “place them” in
specially established “reformatory settlements”.163
104. In 1908, the Criminal Tribes Settlement Act was passed, “permitting
the various provincial governments of India to make plans whereby
tribes suspected of living by crime could be registered and supervised
by the police, and those members of criminal tribes which had been
convicted could be placed in settlements.”164

160 Criminal Tribes (Lower Provinces) Act Extension Act, 1876
161 Ibid
162 The Criminal Tribes Enquiry Committee Report (1949-50), https://ia802807.us.archive.org/11/items/dli.
csl.944/944.pdf, p. 5
163 Ibid
164 John Lewis Gillin, Taming the Criminal: Adventures in Penology, Macmillan Company (1931), p. 110
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105. The Criminal Tribes Act 1911 repealed the earlier Act of 1871 and
the amendments of 1876 and 1897. The application of the Criminal
Tribes Act was extended to the whole of British India.165 The Act
amended the law relating to the registration, surveillance, and control
of criminal tribes. It strengthened the power of the local government
to declare any community as a “criminal tribe” without having to seek
permission of any higher authority.166 However, the local government
was still required to take orders from the Governor General if it wanted
to restrict the movements of any criminal tribe to any specified area
or settle them in any place of residence.167
106. The 1911 amendment gave additional powers to the district magistrate
or any officer to order finger-impressions of a registered member of
the designated tribe.168 The individuals belonging to such tribes were
required to inform “any change or intended change of residence and
any absence or intended absence from his residence”.169 Further,
the 1911 Act reinforced the provisions for the registration of the
members of the designated criminal tribes with the authorities170 and
regular reporting.171 Similarly, the Act reiterated the “duty” of “every
village-headman and village-watchman” and landowners to check
the activities of these individuals.172
107. The Act also provided that the criminal tribes could be placed in
any “industrial, agricultural, or reformatory settlements” to restrict
their movements.173 The local government was also allowed to
“separate and remove” children (between 6 and 18 years of age)
from their parents or guardians and place them in any “established
industrial, agricultural or reformatory schools”.174 These children were
deemed as “youthful offenders” under Reformatory Schools Act,

165 Section 1(2), Criminal Tribes Act, 1911.
166 Section 3, Criminal Tribes Act, 1911.
167 Section 11, Criminal Tribes Act, 1911.
168 Section 5(c), Section 9, Criminal Tribes Act, 1911.
169 Section 10 (b), Criminal Tribes Act, 1911.
170 Section 5, Criminal Tribes Act, 1911.
171 Section 14, Criminal Tribes Act, 1911.
172 Section 26, Criminal Tribes Act, 1911.
173 Section 16, Criminal Tribes Act, 1911.
174 Section 17 (3), Criminal Tribes Act, 1911.
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1897.175 Furthermore, the adults working in industries or children
in reformatory schools could be transferred to any other similar
establishment in any part of British India.176 A person of a criminal
tribe found beyond the prescribed territorial limit or having escaped
from an industrial, agricultural or reformatory settlement or school
was liable for punishment.177
108. Moreover, the Act introduced stringent penalties for non-compliance
with its provisions as well as rules framed by the local government.178
This included imprisonment that extended to three years in certain
cases, and fines extending to five hundred rupees, which was
significantly high at that time. Additionally, in case of a previous
conviction for offences under the Schedule of the Act, punishment
could vary from seven years to transportation of life.179 The Act also
prescribed punishment to an individual of a designated criminal tribe,
if the court was satisfied that “he was about to commit, or aid in the
commission of, theft or robbery” or “was waiting for an opportunity
to commit theft or robbery”.180 Like the previous Act, courts had no
jurisdiction to decide on the validity of the notifications issued by the
local government.181
109. In 1919, based on the requests of local governments, the “Indian Jails
Committee” was appointed by the Government of India to analyze
the working of settlements constituted under the 1911 Act and make
recommendations for better administration. The Committee stated
that “the ultimate aim of the settlements should be the absorption of
the settlers into the general body of the community”.182 Thereafter,
the Act was amended in 1923 to make certain additions. The
criminal tribes notified by the local government of a province could
be restricted or settled in another province with the approval of the

175 Under the Reformatory Schools Act, 1897, “youthful offender” means any boy who has been convicted
of any offence punishable with transportation or imprisonment and who, at the time of such conviction,
was under the age of fifteen years.
176 Section 19, Criminal Tribes Act, 1911.
177 Section 25, Criminal Tribes Act, 1911.
178 Section 21, 22, Criminal Tribes Act, 1911.
179 Section 23, Criminal Tribes Act, 1911.
180 Ibid.
181 Section 28, Criminal Tribes Act, 1911.
182 The Criminal Tribes Enquiry Committee Report (1949-50), https://ia802807.us.archive.org/11/items/dli.
csl.944/944.pdf, 6
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government of that province.183 Before the internment of any criminal
tribe in a settlement, a formal enquiry was required to ascertain the
necessity of restricting that tribe in the settlement.184 The amendment
also empowered the local government to deport criminal tribes to
any princely states, provided the states consented and appropriate
arrangements were made to restrict the movements of the criminal
tribes.185
110. The law relating to criminal tribes was then consolidated as the
Criminal Tribes Act of 1924.186 Another amendment to the Act
happened in 1925 to clarify that if an individual from a designated
criminal tribe moved to another district in the same province or to
another province, he shall still be treated as a criminal tribe in that
district or province.187
111. Several Indian States of pre-independent India had enacted their
own local laws for the surveillance of criminal tribes. According to
the Criminal Tribes Manual of Gwalior, an individual from a criminal
tribe could be convicted with rigorous imprisonment up to one year,
if he kept an arm or “means of locomotion such as horses, ponies,
camels, donkeys, bicycles”.188 The general public was prohibited from
selling any arms or means of locomotion to the criminal tribes, giving
shelter to an individual from a criminal tribe not having a valid pass,
or lending any cash to them.189 Absence of an individual of a criminal
tribe from his specified residence without a pass was punishable with
rigorous imprisonment from one to two years or whipping with 20 to
30 stripes.190 Other States’ manuals also prohibited criminal tribes
from possessing any means of locomotion.191 The Rewa Wandering
Criminal Tribes Act, 1925, applied in Vindhya Pradesh, required

183 Section 6, Criminal Tribes (Amendment) Act 1923 https://164.100.163.187/repealedfileopen?rfilename
=A1923-1.pdf
184 Section 8, Criminal Tribes (Amendment) Act 1923
185 Section 12, Criminal Tribes (Amendment) Act 1923
186 Act No. 06 of 1924
187 Criminal Tribes (Amendment) Act, 1925.
188 The Criminal Tribes Enquiry Committee Report (1949-50), https://ia802807.us.archive.org/11/items/dli.
csl.944/944.pdf, p. 71
189 Ibid
190 Ibid
191 Ibid, 72-73.
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members of wandering criminal tribes to report at all nearest police
stations in their way of travel.192 Failure to do so was punishable
with whipping and rigorous imprisonment upto three months.193 The
Bhopal government compelled both men and women from criminal
tribes settled in different colonies to answer the roll call and give
attendance to a police constable four times at night— 6 PM, 12
midnight, 4 AM, ad 6 AM.194
112. The Act notified around 150 tribes and castes in India as criminals.
This provided an affirmation of the State that any person who
belonged to such a tribe was born as a criminal. Between the period
1871 and 1949, a large number of communities were registered as
“criminal tribes”.
113. The separation of children from their families led to the destruction
of their childhood and deprived them of their innocence. They were
considered as young offenders. The criminal tribes were subjected
to inhuman living conditions, as they were required to mark their
attendance even during late nights. The idea of rehabilitation of
the so-called criminal tribes also led to the exploitation of their
labour. Ostensibly meant to “reform”, the settlements provided for
institutionalized incarceration. The compulsive stay in “settlement
camps” led to many nomadic groups leaving their traditional livelihoods
involuntarily. These camps, created by the Act, distanced the criminal
tribes from mainstream society. Harsh provisions on punishment for
members of the criminal tribes were imposed.
114. American sociologist John Lewis Gillin travelled across India to
document the situation of settlement camps. He noted:
“There are four types of settlements besides the institutions
for children and loose women: (a) Industrial settlements
near some large industrial plant such as a cotton mill,
railroad shops, or a large tea plantation; (b) agricultural
settlements. In these settlements lands are provided by
the government which the settlers are allowed to cultivate
at a certain rental; (c) forest settlements where the settlers

192 Ibid, 79
193 Ibid
194 Ibid, p. 80
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work in the woods getting out timber and reforesting land
either for the government or for private owners. So far as
the Bombay Presidency and the Punjab are concerned,
these are mostly government forests; (d) reformatory
settlements. The last are intended for those who cannot
be trusted and who attempt to escape… In 1919 all of
British India had settlements for criminal tribes except
Burma, Assam, the Central Provinces, and the Northwest
Frontier Province. It is uncertain from the reports whether
all of the native states have them. In the Punjab in 1919
there were twenty-six settlements besides the reformatory
settlement at Amritsar. Of these, twelve were industrial,
one semi-agricultural, three old agricultural, and seven
new agricultural, together with three old settlements which
had no supervising staffs.”195
ii. Caste Discrimination in Colonial India
115. Several leaders led the fight against caste discrimination in colonial
India. These included Jotiba Phule, Babasaheb Ambedkar, E.V.
Ramasami ‘Periyar’, Narayan Guru, among many others. They
challenged the system of caste and exploitation from multiple fronts.
116. In his submissions before the Southborough Committee in 1919, Dr
Ambedkar highlighted how the “untouchables” faced the worst form
of social disabilities:
“The untouchables are usually regarded as objects of
pity but they are ignored in any political scheme on the
score that they have no interests to protect. And yet
their interests are the greatest. Not that they have large
property to protect from confiscation. But they have their
very persona confiscated. The socio religious disabilities
have dehumanized the untouchables and their interests at
stake are therefore the interests of humanity. The interests
of property are nothing before such primary interests.”196

195 John Lewis Gillin, Taming the Criminal: Adventures in Penology, Macmillan Company (1931), pp. 115-16,
122.
196 B.R. Ambedkar, “Evidence Before the Southborough Committee (1919)”, in Dr. Babasaheb Ambedkar:
Writings and Speeches, Vol. 1, p. 255
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He described how “untouchability” is a form of slavery:
“If one agrees with the definition of slave as given by
Plato, who defines him as one who accepts from another
the purposes which control his conduct, the untouchables
are really slaves. The untouchables are so socialized as
never to complain of their low estate. Still less do they ever
dream of trying to improve their lot, by forcing the other
classes to treat them with that common respect which one
man owes to another. The idea that they have been born
to their lot is so ingrained in their mind that it never occurs
to them to think that their fate is anything but irrevocable.
Nothing will ever persuade them that men are all made
of the same clay, or that they have the right to insist on
better treatment than that meted out to them.”197
He then explained how “untouchability” led to the denial of civil and
political rights of the caste-oppressed communities:
“The right of representation and the right to hold office under
the State are the two most important rights that make up
citizenship. But the untouchability of the untouchables puts
these rights far beyond their reach. In a few places they
do not even possess such insignificant rights as personal
liberty and personal security, and equality before law is
not always assured to them. These are the interests of
the untouchables. And as can be easily seen they can
be represented by the untouchables alone. They are
distinctively their own interests and none else can truly
voice them.”198
117. Before the Simon Commission in 1928, Dr Ambedkar raised the
demand of representation of caste-oppressed communities in
government services. Dr Ambedkar also confronted the British
government in the Round Table Conferences during 1930-32. He
stated that there was no change in the material condition of the
oppressed castes in the colonial period. He thundered:

197 Ibid, pp. 255-256
198 Ibid, p. 256
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“When we compare our present position with the one
which it was our lot to bear in Indian society of the pre-
British days, we find that, instead of marching on, we
are only marking time. Before the British, we were in the
loathsome condition due to our untouchability. Has the
British Government done anything to remove it ? Before
the British, we could not enter the temple. Can we enter
now ? Before the British, we were denied entry into the
Police Force. Does the British Government admit us in the
Force? Before the British, we were not allowed to serve
in the Military. Is that career now open to us? To none of
these questions can we give an affirmative answer… there
is certainly no fundamental change in our position. Indeed,
so far as we were concerned, the British Government has
accepted the social arrangements as it found them, and
has preserved them faithfully... Our wrongs have remained
as open sores and they have not been righted, although
150 years of British rule have rolled away.”199
(emphasis added)
In his classic “Annihilation of Caste”, he stated:
“Caste System is not merely division of labour. It is also a
division of labourers. Civilized society undoubtedly needs
division of labour. But in no civilized society is division of
labour accompanied by this unnatural division of labourers
into water-tight compartments. Caste System is not merely
a division of labourers which is quite different from division
of labour—it is an heirarchy in which the divisions of
labourers are graded one above the other.”200
118. Like Dr Ambedkar, other scholars have documented how the British
reinforced the caste system by not interfering in the matters of caste-
based customs. While in enacting the Criminal Tribes Act, the British
directly applied the logic of caste, in courts, they facilitated caste
oppression directly or directly. In this regard, Marc Galanter noted:

199 “Dr. Ambedkar at the Round Table Conferences”, in Dr. Babasaheb Ambedkar: Writings and Speeches,
Vol. 2, p. 504
200 B.R. Ambedkar, “Annihilation of Caste”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p.
47
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“… from the early days of the “British” legal system a group
of matters that might roughly be described as family law -
marriage and divorce, adoption, joint family, guardianship,
minority, legitimacy, inheritance, and succession, religious
endowments - were set aside and left subject to the laws
of the various religious communities; i.e., the applicable
law in these fields was “personal” rather than territorial.
In these family and religious matters Hindus were ruled
by dharmasastra not by the ancient texts as such, but as
interpreted by the commentators accepted in the locality. At
first the courts relied on Brahmin pundits or sastris to advise
them on the applicable rules and their interpretation…”201
He highlighted the practice of British non-interference as follows:
“The cases show widespread acquiescence by local
authorities in the enforcement of these disabilities and
suggest that active governmental support of these practices
at a local level was at least not uncommon. It should be
emphasized however, that these prescriptive rights and
disabilities received their greatest governmental support not
from direct judicial enforcement but from the recognition
of caste autonomy i.e., from the refusal of the courts to
interfere with the right of caste groups to apply sanctions
against those who defied these usage.”202
119. Galanter also highlighted how caste discrimination received direct
support from British courts in certain cases:
“Caste groups did enjoy active support of the courts in
upholding their claims for precedence and exclusiveness.
Courts granted injunctions to restrain members of particular
castes from entering temples - even ones that were publicly
supported and dedicated to the entire Hindu community.
Damages were awarded for purificatory ceremonies
necessitated by the pollution caused by the presence of
lower castes; such pollution was actionable as a trespass
on the person of the higher caste worshippers. It was

201 Marc Galanter, “Law and Caste in Modern India”, Asian Survey (1963), Vol. 3, No. 11, pp. 544–59, at p.
545.
202 Ibid, at p. 548
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a criminal offence for a member of an excluded caste
knowingly to pollute a temple by his presence.”203
British criminal law became intertwined with pre-colonial notions of
who should be disciplined and punished.
iii. Repeal of Criminal Tribes Act
120. When the Objectives Resolution was placed in the Constituent
Assembly, HJ Khandekar stated, on 21 January 1947:
“One thing is wanting in the Resolution, and, if the mover
agrees, it can be modified. The Resolution promises
safeguards and rights to all the minorities. But unfortunately
there are 10 million people in India who, without any fault
on their part, are described as criminal tribes from their very
birth. Hundreds of thousands of men and women in India
were declared as criminal tribes according to the current
law. To deprive them of their rights they are declared so.
No matter whether they are criminals or not, from their very
birth they are made criminals. Some provision to abolish
this law must be embodied in this Resolution.”
Khandekar raised the concerns of the persons who were declared
as criminal tribes.
121. In 1947, an amendment to the Act abolished the punishment
imposed on criminal tribes for second and third convictions under
specified offences.204 As some provinces had concurrent jurisdiction
on this issue, they could amend or repeal the Act in its application
to their territories.205 The Madras government enacted the Criminal
Tribes (Madras Repeal) Act, 1947 to end the application of the Act
in its territory. Similarly, the Bombay government also repealed the
application of the Act to its territory in 1949.206
122. By a resolution dated 28 September 1949, the Government of
independent India appointed “The Criminal Tribes Act Enquiry

203 Marc Galanter, “Untouchability and the Law”, Economic and Political Weekly (1969), Vol. 4, No. 1/2, pp.
131–170, at p. 131.
204 The Criminal Tribes Enquiry Committee Report (1949-50), https://ia802807.us.archive.org/11/items/dli.
csl.944/944.pdf, p. 7
205 ibid
206 Ibid, p. 8
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Committee” under the chairmanship of Ananthasayanam Ayyangar.
The resolution stated:
“There has been a persistent demand in the Central
Legislature in recent years that the Criminal Tribes Act,
1924, should be repealed as its provisions which seek to
classify particular classes of people as Criminal Tribes,
are inconsistent with the dignity of free India. Some of the
Provinces have already repealed the Act in its application to
their areas and replaced it by other legislation, e.g., Habitual
Offenders’ Acts. The Government of India consider that the
question whether the Act should be modified or repealed
altogether on an all-India basis should be considered after
an enquiry into the working of the Act in the Provinces.”207
123. The Committee submitted its report in 1951, after the Constitution
of India came into force. After doing field inspections of several
regions, the Committee concluded that “[e]xcept a few hardened
criminals the other persons, belonging to these tribes, are as good
as the people belonging to other communities of the same economic
and social status, and desire to live an honourable life.” 208 The
Committee further noted, “Wherever we went we heard one single
cry from all the criminal tribes that whereas India obtained freedom,
they continue to be in bondage and their demand for setting them
free by repealing the Act was insistent”.209 The stigma attached to a
community declared as a criminal tribe was highlighted.210
124. The Committee noted that “criminality is not hereditary”.211 It was
observed that the stigma and discrimination against communities
declared as criminal by birth was violative of the equality framework
adopted in the Indian Constitution in 1950. It was stated:
“Untouchability proved oppressive and its practice is now
made illegal under the Constitution, as it involves social
injustice and perpetuates discrimination. More so is the
stigma of criminality by birth. Under section 3 of the Criminal

207 Ibid, p. 1
208 Ibid, p. 81
209 Ibid
210 Ibid
211 Ibid, p. 82
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Sukanya Shantha v. Union of India & Ors.

Tribes Act, 1924, any tribe, gang or class of persons or
any part of a tribe, gang or class who is addicted to the
systematic commission of non-bailable offences can be
notified to be a Criminal Tribe. As a result of this, many
tribes or parts of tribes including families who have never
criminal, have been notified as criminal tribes. The children
born in these notified tribes automatically become members
of the criminal tribes so notified, and the members of
such tribes, who may never have committed or aided in
commission of any offence or even suspected of having
done so, as well as newly born children of these people
are thus branded as criminal and denied equality before the
law and thus a discrimination is imposed against them on
the ground that they belong to a tribe or a part of a tribe,
which has been notified as a Criminal Tribe. In this respect,
this section would appear to go against the spirit of our
Constitution… Moreover, this section gives powers to the
executive to declare any tribe, part of tribe or gang or part
of gang or a class of persons as a Criminal Tribe and it is
provided in section 29 of this Act that no court shall question
the validity of any notification issued under section 3 and
that every such notification shall be a conclusive proof that
it has been issued in accordance with law. We feel that it
is not proper to give such wide powers to the executive.
The Act also gives powers to restrict the movements of
the Criminal Tribes or to place them in settlements to the
executive and by making suitable rules under the Act to
take work from settlers on pain of punishment. This would
virtually amount to “begar” or forced labour which is an
offence under the Indian Penal Code and is opposed also
to Article 23 of the Constitution.”212
125. The Committee recommended the repeal of the Act:
“The Criminal Tribes Act, 1924, should be replaced by
a Central legislation applicable to all habitual offenders
without any distinction based on caste, creed or birth
and the newly formed States included in Parts B and C

212 Ibid, p. 82
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of the First Schedule of the Constitution, which have local
laws for the surveillance of the Criminal Tribes, should be
advised to replace their laws in this respect by the Central
legislation for habitual offenders, when passed.”213
The Act was repealed in 1952. The criminal tribes were then denotified,
as a result of which they were known as “Denotified Tribes”.
126. It must be noted under the Criminal Tribes Act, several marginalized
“castes” were also declared as criminal “tribes”. It is for this reason
Article 341(1) of the Constitution employs the words “castes” and
“tribes” while defining the Scheduled Castes.214 After the repeal of
the Act, some of the castes earlier declared as criminal tribes, have
been accordingly notified as Scheduled Castes.

XII. Jurisprudence on Social Protection in Post-Independence
India
127. Parliament enacted legislation to prevent discrimination and atrocities
against the Scheduled Castes and the Scheduled Tribes. In State
of Karnataka v. Appa Balu Ingale,215 Justice Ramaswamy noted
that Parliament enacted the stringent provisions of the PoA Act,
1989 when “the mandate of Article 17 was being breached with
impunity, and commission of atrocities on Dalits and Tribes continued
unabated”.
128. The Court in State of Madhya Pradesh v. Ram Krishna Balothia216
held that the offences under PoA Act “constitute a separate class
and cannot be compared with offences under the Penal Code”.
These offences are “committed to humiliate and subjugate members
of Scheduled Castes and Scheduled Tribes with a view to keeping
them in a state of servitude”, and “prevent them from leading a
life of dignity and self-respect”. The Court quoted the Statement of
Objects and Reasons of the Act to highlight that “when members of
the Scheduled Castes and Scheduled Tribes assert their rights and

213 Ibid, p. 104
214 Article 341(1) provides: “The President may with respect to any State or Union territory, and where it is
a State, after consultation with the Governor thereof, by public notification, specify the castes, races or
tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution
be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.”
215 [1992] Supp. 3 SCR 284 : AIR 1993 SC 1126
216 [1995] 1 SCR 897 : 1995 INSC 99
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Sukanya Shantha v. Union of India & Ors.

demand statutory protection, vested interests try to cow them down
and terrorise them” if they are on anticipatory bail. For this reason,
the Court dismissed a challenge to Section 18 of the PoA Act,
which debarred the opportunity to seek anticipatory bail in respect
of offences committed under the Act.
129. In Safai Karamchari Andolan v. Union of India,217 the Court noted
that “the practice of manual scavenging has to be brought to a close”.
Making a “member of a Scheduled Caste or a Scheduled Tribe to
do manual scavenging or employing or permiting the employment
of such member for such purpose” is a criminal offence under the
PoA Act.218 The Court took a step further, and held that “entering
sewer lines without safety gears should be made a crime even in
emergency situations”. The Court declared that for a death in sewer
lines, “compensation of Rs. 10 lakhs should be given to the family
of the deceased”. It was emphasized that “Persons released from
manual scavenging should not have to cross hurdles to receive”
compensation or rehabilitation “due under the law”.
130. The Court showed a deep concern about non-implementation of the
PoA Act in National Campaign on Dalit Human Rights v. Union
of India.219 It remarked that “there has been a failure on the part of
the authorities concerned in complying with the provisions” of the
PoA Act. Calling out the “indifferent attitude of the authorities”, the
Court directed the State and the Union governments to strictly do
their role in implementing the Act.
131. These rulings emphasized that the PoA Act is a significant legislative
measure designed to protect the fundamental rights and freedoms
of the Scheduled Castes and Scheduled Tribes, ensuring their
dignity and safety against discrimination and violence. However,
the subsequent judgment in Subhash Kashinath Mahajan v. State
of Maharashtra220 marked a departure from this protective stance.
132. Dealing with a criminal appeal, the judgment in Subhash Mahajan
expressed a “concern that working of the Atrocities [PoA] Act should
not result in perpetuating casteism which can have an adverse

217 [2014] 4 SCR 197 : (2014) 11 SCC 224
218 Section 3(j), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989
219 [2016] 9 SCR 122 : AIR 2017 SC 132
220 [2018] 4 SCR 877 : 2018 INSC 248
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impact on integration of the society and the constitutional values”.
It held that there is “no absolute bar against grant of anticipatory
bail” by the concerned court “in cases under the Atrocities [PoA] Act
if no prima facie case is made out or where on judicial scrutiny the
complaint is found to be prima facie mala fide”. The Court issued
the following guidelines:
“(iii) In view of acknowledged abuse of law of arrest in
cases under the Atrocities Act, arrest of a public servant can
only be after approval of the appointing authority and of a
non-public servant after approval by the S.S.P. which may
be granted in appropriate cases if considered necessary
for reasons recorded. Such reasons must be scrutinized
by the Magistrate for permitting further detention;
(iv) To avoid false implication of an innocent, a preliminary
enquiry may be conducted by the DSP concerned to find
out whether the allegations make out a case under the
Atrocities Act and that the allegations are not frivolous or
motivated;
(v) Any violation of direction (iii) and (iv) will be actionable
by way of disciplinary action as well as contempt.”
133. The directions in Subhash Mahajan were later recalled in the review
petition in Union of India v. State of Maharashtra.221 In doing so, the
Court noted that the Scheduled Castes and the Scheduled Tribes “are
still making the struggle for equality and for exercising civil rights in
various areas of the country”. It remarked that there is “no presumption
that the members of the Scheduled Castes and Scheduled Tribes
may misuse the provisions of law as a class”. Instead, “members of
the Scheduled Castes and Scheduled Tribes due to backwardness
hardly muster the courage to lodge even a first information report,
much less, a false one”. The Court further declared that treating the
Scheduled Castes and the Scheduled Tribes as “prone to lodge false
reports under the Scheduled Castes and Scheduled Tribes Act for
taking revenge” or monetary gain, especially when they themselves
are victims of such offenses, contradicts fundamental principles of
human equality.

221 [2019] 12 SCR 1125 : 2019 INSC 1102
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Sukanya Shantha v. Union of India & Ors.

134. The review judgment also observed that guidelines issued in Subhash
Mahajan “may delay the investigation of cases”. The judgment
termed the directions as “discriminatory”, as “it puts the members of
the Scheduled Castes and Scheduled Tribes in a disadvantageous
position”, compared to complaints lodged by members of upper
castes, where no such preliminary investigation is required. The
Court also found the directions to be “without statutory basis”, as
they are in conflict with PoA Act, and amounts to “encroaching on
a field which is reserved for the legislature”. The Court however
clarified that “if prima facie case has not been made out attracting
the provisions” of PoA Act, “the bar created under section 18 on the
grant of anticipatory bail is not attracted”.
135. Before the review judgment was delivered, Parliament amended the
PoA Act, undoing the effect of the guidelines issued in Subhash
Mahajan. The amendment was unsuccessfully challenged in Prathvi
Raj Chauhan v. Union of India.222
136. The hurdles faced by the Scheduled Castes and the Scheduled
Tribes were highlighted by this Court in Hariram Bhambhi v.
Satyanarayan.223 The Court cancelled the bail of an accused on
the ground that the statutory requirement of Section 15A224 of PoA
Act was not fulfilled in the case. Authoring the judgment, one of us
(Justice DY Chandrachud) noted:
“Scheduled Castes and Scheduled Tribes specifically
suffer on account of procedural lapses in the criminal
justice system. They face insurmountable hurdles in
accessing justice from the stage of filing the complaint to
the conclusion of the trial. Due to the fear of retribution
from members of upper caste groups, ignorance or police
apathy, many victims do not register complaints in the first
place. If victims or their relatives muster up the courage
to approach the police, the police officials are reluctant to
register complaints or do not record allegations accurately.

222 [2020] 2 SCR 727 : (2020) 4 SCC 727
223 [2021] 8 SCR 855 : 2021 INSC 701
224 Section 15A(5) of the Act provides: “A victim or his dependent shall be entitled to be heard at any
proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an
accused or any connected proceedings or arguments and file written submission on conviction, acquittal
or sentencing.”
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Eventually, if the case does get registered, the victims
and witnesses are vulnerable to intimidation, violence and
social and economic boycott. Further, many perpetrators
of caste based atrocities get away scot-free due to shoddy
investigations and the negligence of prosecuting advocates.
This results in low conviction rates under the SC/ST Act
giving rise to the erroneous perception that cases registered
under the Act are false and that it is being misused. On
the contrary, the reality is that many acquittals are a
result of improper investigation and prosecution of crime,
leading to insufficient evidence. This is evident from the
low percentage of cases attracting the application of the
provisions of the Penal Code relating to false complaints
as compared to the rate of acquittals.”
(emphasis added)
The Court observed that the provisions of the PoA Act, in particular
Section 15A, “enable a member of the marginalized caste to
effectively pursue a case and counteract the effects of defective
investigations”.
137. In Patan Jamal Vali v. State of Andhra Pradesh,225 this Court
expanded the scope of jurisprudence relating to Section 3(2)(v) of the
PoA Act. The case dealt with the offence of rape of a woman from
the Scheduled Caste community, who was blind by birth. Prior to the
amendment in 2016, Section 3(2)(v) provided, “Whoever not being a
member of a Scheduled Caste or Scheduled Tribe … commits any
offence under the Indian Penal Code punishable with imprisonment
for a term of ten years or more against a person or property on the
ground that such person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such member, shall
be punishable with imprisonment for life and with fine”. The Court
observed that in such cases, “an intersectional lens enables us to
view oppression as a sum of disadvantage resulting from multiple
marginalized identities.” It was held that “A true reading of Section 3(2)
(v) would entail that conviction under this provision can be sustained
as long as caste identity is one of the grounds for the occurrence of
the offence.” The Court observed:

225 [2021] 3 SCR 470 : 2021 INSC 272
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Sukanya Shantha v. Union of India & Ors.

“To deny the protection of Section 3 (2) (v) on the premise
that the crime was not committed against an SC & ST
person solely on the ground of their caste identity is to deny
how social inequalities function in a cumulative fashion.
It is to render the experiences of the most marginalized
invisible. It is to grant impunity to perpetrators who on
account of their privileged social status feel entitled
to commit atrocities against socially and economically
vulnerable communities.”
138. In Dr. Balram Singh v. Union of India, 226 while dealing with
the Prohibition of Employment as Manual Scavengers and Their
Rehabilitation Act, 2013, the Court directed the Union government
to take “appropriate measures” and “issue directions, to all statutory
bodies, including corporations, railways, cantonments, as well as
agencies under its control, to ensure that manual sewer cleaning is
completely eradicated in a phased manner”. The Court also instructed
that guidelines and directions should be issued to prevent the need
for individuals to enter sewers, even when sewer cleaning work is
outsourced or carried out by contractors or agencies. The Court held
that “where minimum protective gear and cleaning devices are not
provided to hazardous workers, the employment of hazardous workers
amounts to forced labour”, prohibited under the Constitution. Hence,
the Court held that “the provisions for protective gear and cleaning
devices are not mere statutory rights or rules, but are entitlements”
guaranteed under the Constitution.
139. On a number of occasions, this Court has expressed concern about
the non-implementation of the PoA Act and the legislation prohibiting
manual scavenging. The Court has also expressed concern about the
false implication of people from nomadic/denotified tribes in criminal
cases. In NALSA, the Court noted that the colonial-era Criminal Tribes
Act “deemed the entire community of Hijras as innately ‘criminal’”.
In Ankush Maruti Shinde v. State of Maharashtra,227 the High
Court confirmed the conviction and death penalty of six accused
for the offence of rape and murder. Their appeal was previously
dismissed by this Court. However, in a review petition, the Court

226 [2023] 14 SCR 1083 : 2023 INSC 950
227 [2019] 4 SCR 709 : 2019 INSC 305
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restored the appeal and acquitted all the accused, finding that they
were falsely implicated. Taking account of the fact that the accused
belonged to nomadic tribes, the Court noted that “there was no fair
investigation and fair trial” and the “serious lapse on the part of the
investigating agency”. As five of the accused spent 16 years in jail
on false implication and all “were facing the hanging sword of death
penalty”, the Court granted them monetary compensation for violating
their rights under Article 21.
140. In a recent decision in Amanatullah Khan v. The Commissioner
of Police, Delhi,228 the petitioner sought “quashing of opening/
approval of the History Sheet declaring him as bad character and
consequential entries in the Surveillance Register being exercised”
by the respondents. The Court reiterated that “History Sheet is only
an internal police document and it shall not be brought in public
domain”. Further, it emphasized that “extra care and precaution”,
needs to be observed “by a police officer while ensuring that the
identity of a minor child is not disclosed as per the law”. It directed
that Delhi Police “shall periodically audit/review the contents of the
History Sheets and will ensure confidentiality and a leeway to delete
the names of such persons/juveniles/children who are, in the course
of investigation, found innocent and are entitled to be expunged
from the category of “relations and connections’” in a History Sheet”.
141. The crucial aspect of the above decision is that the Court exercised
its suo motu powers to give directions to the police in other states
to not act arbitrarily against the marginalized communities. It noted:
“Having partially addressed the grievance of the appellant,
we now, in exercise of our suo motu powers, propose
to expand the scope of these proceedings so that the
police authorities in other States and Union Territories
may also consider the desirability of ensuring that no
mechanical entries in History Sheet are made of innocent
individuals, simply because they happen to hail from the
socially, economically and educationally disadvantaged
backgrounds, along with those belonging to Backward
Communities, Scheduled Castes & Scheduled Tribes.
While we are not sure about the degree of their authenticity,

228 [2024] 5 SCR 927 : 2024 INSC 383
[2024] 10 S.C.R. 583

Sukanya Shantha v. Union of India & Ors.

but there are some studies available in the public domain
that reveal a pattern of an unfair, prejudicial and atrocious
mindset. It is alleged that the Police Diaries are maintained
selectively of individuals belonging to Vimukta Jatis, based
solely on caste-bias, a somewhat similar manner as
happened in colonial times… We must bear in mind that
these pre-conceived notions often render them ‘invisible
victims’ due to prevailing stereotypes associated with their
communities, which may often impede their right to live a
life with self-respect.”
(emphasis added)
The Court expected that the State governments “take necessary
preventive measures to safeguard such communities from being
subjected to inexcusable targeting or prejudicial treatment”. It directed
all the States/Union territories to revisit their policies to adopt a
“periodic audit mechanism overseen by a senior police officer”
to scrutinize the entries made in history sheets. It was noted that
“[t]hrough the effective implementation of audits, we can secure the
elimination of such deprecated practices and kindle the legitimate
hope that the right to live with human dignity” will be protected.
142. The Court has also warned the police on misusing the power to
arrest. In Arnesh Kumar v. State of Bihar,229 a three-judge Bench
adverted to the misapplication of the provision for arrest by the
police. It was noted:
“Arrest brings humiliation, curtails freedom and cast scars
forever. Law makers know it so also the police. There is a
battle between the law makers and the police and it seems
that police has not learnt its lesson; the lesson implicit
and embodied in the Code of Criminal Procedure. It has
not come out of its colonial image despite six decades
of independence, it is largely considered as a tool of
harassment, oppression and surely not considered a friend
of public. The need for caution in exercising the drastic
power of arrest has been emphasized time and again by
Courts but has not yielded desired result. Power to arrest

229 [2014] 8 SCR 128 : 2014 INSC 463
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greatly contributes to its arrogance so also the failure of
the Magistracy to check it. Not only this, the power of
arrest is one of the lucrative sources of police corruption.
The attitude to arrest first and then proceed with the rest
is despicable. It has become a handy tool to the police
officers who lack sensitivity or act with oblique motive.”
(Emphasis added)
143. In Mallada K. Sri Ram v. State of Telangana,230 the Court, speaking
through one of us (Justice DY Chandrachud), highlighted the
constitutional mandate to prevent arbitrary exercise of prevention
detention:
“the personal liberty of an accused cannot be sacrificed on
the altar of preventive detention merely because a person is
implicated in a criminal proceeding. The powers of preventive
detention are exceptional and even draconian. Tracing their
origin to the colonial era, they have been continued with
strict constitutional safeguards against abuse. Article 22 of
the Constitution was specifically inserted and extensively
debated in the Constituent Assembly to ensure that the
exceptional powers of preventive detention do not devolve
into a draconian and arbitrary exercise of state authority.”
The exercise of the power to arrest or detain may become reflective
of a colonial mindset, if not exercised with caution. The misuse
of the power of arrest not just violates rights, but it can prejudice
generations of innocent citizens, especially marginalized communities
such as the Denotified Tribes. Arrests can create a stigma of
criminality if not done diligently. Innocent people, if arrested on the
grounds of stereotypes and mere suspicion, may face barriers in
securing employment and earning a dignified livelihood. Entering
the mainstream becomes impossible when those who have suffered
incarceration find themselves unable to secure livelihoods, housing,
and the necessities of life.
144. Discrimination against the Scheduled Castes, Scheduled Tribes, and
Denotified Tribes has continued in a systemic manner. Remedying

230 [2022] 3 SCR 5 : 2022 INSC 386
[2024] 10 S.C.R. 585

Sukanya Shantha v. Union of India & Ors.

systemic discrimination requires concrete multi-faceted efforts by
all institutions. In discharge of their role, courts have to ensure
that while there should be proper implementation of the protective
legislation such as the PoA Act, there should not be unfair targeting
of members from marginalized castes under various colonial-era or
modern laws. With this nuanced approach, we shall now examine
the prison manuals.

XIII. Impugned Provisions
(i) Prison Act
145. At the outset, we must clarify that the Prison Act 1984 is not under
challenge. Accordingly, we shall not be dealing with the validity of the
Act. We are referring to its provisions to understand the background
of prison manuals/rules.
146. The Act was enacted to amend the law relating to prisons and to
provide for the regulation of prisons. The Statement of Objects and
Reasons stated that four different Acts were in force for the regulation
of prisons, which were different on important points such as the
enumerated jail offences and their punishments, and were thus
resulting in divergent jail management systems across provinces,
non-uniform enforcement of sentences, and lack of administrative
uniformity.
147. The Act provided for various aspects of prison administration including
maintenance of prisons, officers of prisons, duties of prison officers,
admission, removal and discharge of prisoners, discipline, food and
other amenities for civil and non-convicted prisoners, employment of
prisoners, health of prisoners, visits to prisons, and prison offences.
Chapter II provides for the duties of prison officers. All officers are
supposed to obey the directions of the Superintendent and act in
accordance with the directions of the Jailer (and sanctioned by the
Superintendent) and in line with the rules under Section 59 of the
Act. The officers are proscribed from dealing with the prisoners, or
to have an interest in the contracts for supply of the prison. The
Superintendent is responsible for managing the prison in matters
relating to discipline, labour, expenditure, punishment and control,
subject to the orders of the Inspector General. 231 The Chapter

231 Section 11, Prisons Act, 1894.
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further provides for provisions regarding jailers, medical officers and
subordinate officers, including convict officers. Chapter V of the Act
contains provisions regarding ‘Discipline of Prisoners’. It provides
for separation of prisoners based on gender, age, conviction and
civil or criminal imprisonment232 and the confinement of convicts
in association or by segregation. The Act further provides for
employment of prisoners under Chapter VII. It provides that civil
prisoners may be permitted to follow any trade or profession and
that certain safeguards need to be observed in engaging criminal
prisoners in labour.233 Chapter VIII and IX pertain to the health
of prisoners and visits to prisoners respectively. Chapter X and
XI provide for offences in relation to prisons and prison offences
respectively. The miscellaneous chapter contains provisions
regarding extramural custody, control and employment of prisoners,
confinement in irons for safe custody, and the power to make rules.
148. In a constitutional set-up, the Act is governed by constitutional
principles. Though the Act was enacted in the colonial era, its
provisions and subsequent manuals/rules enacted therein are subject
to constitutional provisions.
(ii) Prison manuals/rules
149. The impugned prison manuals and rules are listed below:
The Uttar Pradesh Jail Manual, 2022
● 158. Remission to convicts on scavenging duty - Subject to
good work and conduct in jail, convicts of the scavenger class
working as scavengers in jails, or convicts who on administrative
grounds it is not found expedient to promote to the grades
of convict officers, shall, though they may not be appointed
convict officers, be titled to receive ordinary remissions at the
scales sanctioned in the preceding paragraph for convict night
watchmen and convict overseers, respectively, with effect from
the first day of the month following the one on which they would,
but for this rule, be eligible for promotion to those grades.
● 267. Classification necessary in the case of every convict- The
Superintendent shall see that every convicted prisoner has been

232 Ibid, Section 27
233 Ibid, Section 34.
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Sukanya Shantha v. Union of India & Ors.

classified as habitual or casual in accordance with the form of
classification furnished by the convicting court.
● 269. In a jail where prisoners of more than one class are
confined, the Superintendent shall make arrangements, as far
as possible, for the complete segregation of different classes
in separate circles, enclosures or barracks in accordance with
the requirements of section 27 of the Prisons Act, 1894 and
the rules contained in this chapter.
● 270. Segregation of casual from habitual prisoners - Casual
convicts shall as far as possible, be kept separate from habitual
convicts.
● 271. There shall, as far as possible, be separate wards for
nonprofessional and professional sub-categories of habitual
prisoners. Prisoners belonging to the latter sub-category
should be kept entirely separate from all other categories of
prisoners.
● 289. Rules for observance - A convict sentenced to simple
imprisonment, -(a) shall rise and retire to rest at such hours
as may be prescribed by the Superintendent ;(b) shall be
permitted to wear his own clothes, which if insufficient for
decency or warmth shall be supplemented by such jail clothing,
not exceeding the scale provided for convicts sentenced to
rigorous imprisonment, as may be necessary to make up the
deficiency, but shall wear the ordinary convict’s clothing if he
elects to labour and is employed on extra-mural labour;(c)
shall clean his own cell, barrack or yard and keep his bedding
and clothing in a clean and orderly condition;(d) shall, with the
approval of the Superintendent, be allowed to possess and use
his own books and periodicals in addition to those available
from the prison library;(e) shall not be allowed to purchase his
own food;(f) shall not be shaved unless he desires it or under
the orders of the Medical Officer on grounds of health;(g) shall
not be called upon to perform duties of a degrading or menial
character unless he belongs to a class or community accustomed
to perform such duties; but may be required to carry water for
his own use provided he belongs to the class of society the
members of which are accustomed to perform such duties in
their own homes.
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The West Bengal Jail Code Rules for Superintendence and
Management of Jail in West Bengal, 1967
● 404. Qualification for eligibility of a convict overseer for
appointment as a night guard – A convict overseer may be
appointed to be a night guard provided—
(a) that he has served as a convict overseer for three months;
(b) that he does not belong to any class that may have a strong
natural tendency to escape, such as men of wandering tribes
and those whose homes are outside India; and
(c) that his antecedents have been verified through the
Superintendent of Police.
● 694. Non-interference with religious practices or caste
prejudices- (a) Interference with genuine religious practices
or caste prejudices of prisoners should be avoided. But no
relaxation of the working rules shall be allowed. Prisoners shall
be permitted to perform their devotions at suitable times and in
suitable places. Care should be taken to see that this principle
is not made the cloak for frivolous complaints or for attempts
to escape from jail labour or discipline. If the Superintendent
feels any doubt as to the validity of any plea advanced by a
prisoner on the grounds of caste or religion he should refer the
matter for the orders of the Inspector General whose decision
shall be final.
● 741. Sickness in cells - In case of sickness immediate notice
shall be given by the guard to the Head Warder on duty by
passing the ward from sentry to sentry. The Head Warder shall
at once report the case to the Medical Subordinate, who shall
visit the cell, and, if necessary, remove the prisoner to hospital,
and inform the Superintendent, Medical Officer and Jailor of
the circumstance at their next visit. Two prisoners shall, under
no circumstances whatever, be confined in one cell except
in the case of female prisoners condemned to death. If male
condemned prisoners or dangerous lunatics have to be watched
by convicts, they must remain outside the grated door of the
cell. Convict sweepers, cooks and watermen may enter the
cells when necessary, accompanied by a warder. Food shall
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be cooked and carried to the cells by prisoner-cooks of suitable
caste, under the superintendence of a jail officer.
● 793. percentage of prisoners employed as jail servants - The
total number of prisoners employed regularly in essential
jail services as cooks, barbers, water-carriers, sweepers,
etc., shall not exceed 10 per cent. of the whole number of
prisoners in Central and 1st or 2nd class District jails and
12 percent. in 3rd class District jails. (For the proportion of
cooks, sweepers and hospital attendants to the number of
prisoners to be attended to, see Rule 789.) The appointment
of cooks is regulated by Rule 1117. The barber should belong
to the A class. Sweepers should be chosen from the Mether
or Hari caste, also from the Chandal or other castes, if by
the custom of the district they perform similar work when
free, or from any caste if the prisoner volunteers to do the
work. Hospital attendants should be selected from prisoners
passed for light work or those who have completed at least
half their sentences. Hospital attendants shall wear a plain
square red badge, 5 cm. x 5 cm., on the left breast of the
kurta. Prisoners in the “convalescent and infirm” gang may be
put to this duty under the Medical Officer’s orders. If there is
a large number of serious cases in hospital, the proportion of
one attendant to 10 patients may be temporarily exceeded;
with this exception, Superintendents must see that no more
than the authorised percentage of prisoners is employed as
jail servants or as convict officers. If any convict employed in
an essential jail service has not enough work to occupy his
whole time, he should be placed upon some other work for
the remainder of his time.
● 1117. Selection of cooks - The cooks shall be of the A class
except at the Presidency Jail where well-behaved ‘B’ class
prisoners may be employed as such. Any prisoner in a jail
who is of so high a caste that he cannot eat food cooked by
the existing cooks shall be appointed a cook and be made
to cook for the full complement of men. Individual convicted
prisoners shall under no circumstances be allowed to cook for
themselves exception being made in the cases of Hindu widows
who, if they desire it, may be allowed, at the discretion of the
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Superintendent, to cook for themselves if it does not interfere
with their work and discipline.
Madhya Pradesh Jail Manual, 1987
● 36. Latrine Parade - While the latrine parade is being carried
out, the mehtars attached to each latrine shall be present, and
shall call the attention of the convict overseer to any prisoner
who does not cover up his dejecta with dry earth. The mehtars
shall empty the contents of the small receptacle into large iron
drums and replace the receptacles in the latrine after having
cleaning them.
● 411. Habitual and non-habitual criminals - 411. All convicted
criminal prisoners shall be classified and placed in one or other
of the following categories, namely:- (a) Habitual Criminals. (b)
Non-habitual Criminals. Note.-For Convenience of reference,
prisoner falling in the first of the above categories are referred
to as “habitual’’, and those falling in the second category are
described as “non-habitual” or “casuals”. The following persons
shall be liable to be classified habitual criminals-(i) Any person
convicted of an offence whose previous conviction, or convictions
under Chapters XII, XVI, XVII or XVIII of the lndian Penal Code
taken by themselves or with the facts of present case show
that he habitually commits in offence or offences punishable
under any or all of those Chapters;
(ii) Any person committed to or detained in prison under section
123 (read with section 109 or section 110) of the Code or
Criminal Procedure;
(iii) Any person convicted of any of the offences specified in
(i) above when it appears from the facts of the case. Even
although no previous conviction has been proved that he is by
habit member of a gang of dacoits, or of thieves or a dealer in
slaves or in stolen property.
(iv) Any member of denotified tribe subject to the discretion of
the State Government concerned.
(v) Any person convicted by a Court or tribunal acting outside
India under the general or special authority of the Government
of India of an offence which should have rendered him liable
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to be classified as a habitual criminal if he had been convicted
in a court established in India.
Explanation.- For the purpose of these definition the word
“conviction” shall include an order made under section 118 read
with section 110 of the Criminal Procedure Code.
● 563. Cooking of food, cleanliness of vessels etc. – The cooks
shall perform all preparations and processes necessary after
issue of the daily supplied to them, and shall cook the food
with due care and attention. The dough for chapaties shall be
‘slowly and thoroughly kneaded and then rolled to a uniform
thickness on a table by a rolling pin, not patted by hands; a
circular curter shall be used to make the cakes of one size;
and the cooking must be done slowly on a gently heated plate;
so as not to burn the outside whilst the inner part remains
Uncooked. All cooking utensils must be kept scrupulously clean
and bright, and the cook-house and feeding places as clean
and tidy as it is possible to make them. Any breach of this rule
shall subject the cooks to such punishment, within the limits
fixed by these rules, as the Superintendent may after due and
proper enquiry award.
Andhra Pradesh Prison Rules, 1979
● 217. Definition of habitual – The following persons shall be
liable to be classified as “habitual criminals”, namely:— (i) Any
person convicted of an offence punishable under chapters
XII, XVII and XVIII of the Indian Penal Code whose previous
conviction or convictions, taken in conjuction with the facts of the
present case, show that he is by habit a robber, housebreaker,
dacoit, thief or receiver of stolen property or that he habitually
commits extortion, cheating, counterfeiting coin, currency notes
or stamps or forgery;
(ii) Any person convicted of an offence punishable under Chapter
XVI of the Indian Penal Code, whose previous conviction or
convictions taken in conjunction with the facts of the present case,
show that he habitually commits offences against the person;
(iii) Any person committed to or detained in prison under
section 122 read with section 109 or section 110 of the Code
of Criminal Procedure;
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(iv) Any person convicted of any of the offences specified in i)
above when it appears from the facts of the case, even though
no previous conviction has been proved, that he is by habit
a member of a gang of dacoits, or of thieves or a dealer in
stolen property;
(v) Any habitual offender as defined in the Andhra Pradesh
Habitual Offenders Act, 1962;
(vi) Any person convicted by a court or tribunal acting outside
India under the general or special authority of the Central
Government or any State Government of by any court or tribunal
which was before the commencement of the constitution acting
under the general or special authority of an offence which would
have rendered him liable to be classified as a habitual criminal
if he had been convicted in a court established in India.
EXPLANATION:- For the purpose of this definition the word
“conviction” shall include an order mate under section 117, read
with section 110 of the Criminal Procedure Code.
● 440. Allowance for caste prejudice – The prison tasks including
conservancy work shall be allotted at the discretion of the
Superintendent with due regard to capacity of the prisoner,
his education, intelligence and attitude and so far as may be
practicable with due regard to his previous habits.
● 448. Restrictions on extramural employment of convicts–
(1) Without the sanction of the Inspector General, no convict
shall, at any time, be employed on any labour outside the
walls of the prison, or be permitted to pass out of the prison
for employment of the purpose of being so employed:—
(a) Unless he has undergone not less than one-fourth of
the substantive term of imprisonment to which he has been
sentenced;
(b) If the unexpired term of substantive sentence together
with imprisonment (if any) awarded in lieu of fine, still to be
undergone, exceeds two years;
(c) If his appeal (if any) is undisposed of:
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d) If any other charge or charges are pending against him or
he has to undergo a period of police surveillance on the expiry
of his sentence;
(e) If he is a resident of foreign territory; and
(f) If he is a member of a wandering or criminal tribe, or is of
a bad or dangerous character, or has, at any time, escaped of
attempted to escape from lawful custody.
(2) Not withstanding anything contained in sub-rule (1) of this
rule, every prisoner, who has not more than twelve months of
sentence remaining, may be employed on extramural labour
irrespective of the portion of sentence already passed in prison.
(3) In every case in which a convict is employed on any labour
outside the walls of the prison or is permitted to pass out of
the prison for the purpose of being so employed, it shall be
subject to the condition that the Superintendent has sanctioned
his employment outside the prison and recorded the fact of his
having done so in the Prisoner’s History Ticket.
NOTE:- When there are more prisoners eligible, for employment
outside the prison than are actually required, casuals and
men with the shortest unexpired terms should be selected in
preference to others.
● 1036. Classes of convicted prisoners and their treatment – (1):
As mentioned in rule 216 supra, convicted prisoners are divided
into three divisions namely classes A, B and C.
(2) Prisoners shall be treated as “A” Class if-
(i) They are non-habitual prisoners of good character;
(ii) They by social status, education and habit of life have been
accustomed to a superior mode of living; and
(iii) They have not been convicted of- (a) Offenses involving
elements of cruelty, moral degradation or personal greed;
(b) Serious or premeditated violence;
(c) Serious offences against women and children;
(d) Serious offences against property;
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(e) Offences relating to the possession of explosives, fire-arms
and other dangerous weapons with the object of committing an
offence or of enabling an offence to be committed;
(f) Abetment or incitement of offences falling within these sub-
rules.
(3) Prisoners shall be treated as “B” Class if —(i) They, by social
status, education and habit of life have been accustomed to
superior mode of living; and
(ii) They have not been convicted of:
(a) Offences involving elements of cruelty, moral degradation
or personal greed;
(b) Serious or premeditated violence;
(c) Serious offence against women and children;
(d) Serious offences against property;
(e) Offences relating to the possession of explosives, firearms
and other dangerous weapons with the object of committing an
offence or of enabling an offence to be committed
(f) Abetment or incitement of offences falling within these sub-
rules.
NOTE:— Habitual prisoners may be included under this class
or grounds of character and antecedents.
(4) (i) If no orders about classification are passed by the
sentencing court, it should be assumed that a prisoner belongs
to “C” Class. A reference should be made in doubtful cases but
it should not be presumed in the absence of specific orders that
the prisoner belongs to a class higher than “C”.
Odisha Model Jail Manual Rules for the Superintendence and
Management of Jails in Odisha, 2020
● 3. Definitions - (t) “Habitual offender” means an offender who
has been convicted in a particular offence for more than one
occasion.
● 4. Criteria for establishment of prisons.— (1) The State
Government shall as far as possible establish sufficient numbers
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of prisons and provide minimum needs essential to maintain
standards of living in consonance with human dignity.
(2) Prison administration shall ensure that the prisoners human
rights are respected.
(3) Prison administration shall ensure separation of the following
categories of prisoners, namely :-- (a) Civil Prisoners; (b)
Under-trials; (c) Female Prisoners; (d) Convicted Prisoners; (e)
Young Offenders; (f) First Offenders; (g) Habitual Offenders; (h)
High Security Prisoners; (i) Detenue; (j) Geriatric and infirmed
prisoners;(k) Transgender Prisoners; (l) Psychiatric Prisoners;(m)
Higher Division Prisoners; and (n) Political Prisoners
(4) There shall be a separate prison for high security prisoners.
(5) The prisons’ regime shall take care to prepare prisoners
to lead a law-abiding, self supporting, reformed and socially
rehabilitated life.
● 515. Division of Police registered prisoners into two classes.—
(1)The first class consists of prisoners who are to be transferred
before release to the Jails of the districts in which their homes
are situated.
(2) This class shall be described in the Admission Register
provided in Form No.17 and Release Diaries provided in Form
No 23 as P.R./T Prisoners.
Explanation :— The letter P.R. standing for “Police Registered”,
and the letter T, signifying ‘transfer’.
(3) The prisoners stated in sub-rule (2) shall include prisoners
in respect of whom the sentencing court may have recorded
an order under section 565 of the Code of Criminal Procedure,
1973 (2 of 1974)and any such prisoner shall be described in the
Admission Register and Release Diaries as “Police Registered
Transfer -565” prisoners.
(4) The second class consists of prisoners who are not to be
transferred, but are to be released from the jails in which they
are confined at the time of the expiry of their sentences and
this class shall be described in the Admission Registers and
Release Diaries as Police Registered prisoners.
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(5) If any prisoner known to be a member of a criminal tribe is
not police-registered, his case shall be brought to the notice
of the Superintendent of Police.
(6) When intimation respecting a prisoner’s Police-registration
is received from the police after his name has been entered
in Admission Register and Release Diaries, the letter Police-
Registered, Police-Registered/Transfer, Police Registered
Transfer “565”, as the case maybe, shall be added in red ink.
(7) Entries on the back of the P.R. form relating to the Finger
Impression, viz., “F.I. taken” or “tested” shall be similarly added.
(8) The police P.R. form intimating the fact that a prisoner
is on the police register shall be attached to and kept with,
the warrant, and sent with him to the jail to which he may be
transferred.
(9) On the death or escape of a Police Registered Prisoner of
either class, the Police P.R. form attached to his warrant shall
be returned to the Superintendent of Police of his district with
an endorsement, showing the date of his death or escape.
(10) All other P.R. slips shall be sent to the Superintendent of
Police of the district, a fortnight before the release is due.
Note:— The number and name of P.R./T and P.R.T/565 prisoners
shall be noted in red ink in the Release Diaries four months
before the date of probable release, any remission likely to be
earned being taken into account.
● 784. Prison Industries and Work Programmes.— (1) The
work programmes shall also include essential institutional
maintenance services like culinary, sanitary and hygienic
services, prison hospital, other prison services, repairs and
maintenance services… (25) Prisoners who have shown, or are
likely to have, a strong inclination to escape or are members
of a wandering or criminal tribe, even though eligible, shall not
be employed on extramural work.
The Kerala Prison Rules 1958
● 201. Definition of habitual criminals — The following persons
shall be liable to be classified as “Habitual Criminals” namely:-
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(1) any person convicted of an offence punishable under
Chapters XII, XVII and XVIII of the Indian Penal Code, whose
facts of the present case, show that he is by habit a robber,
house breaker, dacoit, thief or receiver of stolen property or
that he habitually commits extortion, cheating, counterfeiting
coin, currency notes or stamps or forgery;
(2) any person convicted of an offence punishable under
Chapter XVI of the Indian Penal Code, whose previous
conviction or convictions taken in conjunction with the facts
of the present case show that he habitually commits offences
against the person;
(3) any person committed to or detained in prison under Section
123 (read with Section 109 or Section 110) of the Code of
Criminal Procedure;
(4) any person convicted of any of the offence specified in (i)
above when it appears from the facts of the case, even though
no previous conviction has been proved, that he is by habit a
member of a gang of dacoit, or of thieves or a dealer in slaves
or in stolen property;
(5) any person of a Criminal tribe subject to the discretion of
the Government.
Explanation.—For the purpose of the definition the word
“conviction” shall include an order made under Section 118,
read with Section 110 of the Code of Criminal Procedure.
The Tamil Nadu Prison Rules, 1983
● 214. Separation of categories – Subject to the availability of
accommodation, the prisoners; shall be segregated as follows:
(a) “A” class prisoners from “B” class prisoners;
(b) Civil prisoner from Criminal prisoners;
(c) Female prisoners from male prisoners;
(d) Adult prisoners from adolescents;
(e) Convicted prisoners from undertrial prisoners;
(f) Habitual prisoners from non-habitual prisoners;
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(g) Prisoners suffering from communicable diseases;
(h) Prisoners suspected to be suffering from mental disorders;
(i) Homosexuals;
(j) Sex perverts;
(k) Drug addicts and traffickers in narcotics;
(l) Inmates having suicidal tendencies;
(m) Inmates exhibiting violent and aggressive tendencies;
(n) Inmates having escape discipline risks; and
(o) known bad characters.
● 219. Definition of habitual criminal – The following persons shall
be liable to be classified as habitual criminals, namely:
(i) Any person convicted of an offence punishable under chapters
XII, XVII, XVIII of the Indian Penal Code (Central Act XIIV of
whose previous conviction or convictions taken in conjunction
with the facts of the present case shows that he is by habit
a robber, dacoit thief or receiver of stolen property or that
he habitually commits extortion cheating, counterfeiting coin,
currency notes or stamps or forgery.
(ii) Any person convicted of an offence punishable under Chapter
XVI of the Indian Penal Code (Central Act XIV (1860) or under
the Suppression of Immoral Traffic in Women and Girls Act,
1956 (Central Act 104 of 1956) whose previous conviction or
convictions, taken in conjunction with the facts of the present case,
show that he habitually commits offences against the person or
is habitually engaged in immoral traffic in women or girls;
(iii) Any person committed to or detained in prison under section
122 read with sections 109 or 110 of the Code or Criminal
Procedure,1973 (Central, Act 2 of 1974);
(iv) Any person convicted of any of the offences specified in
clauses (1) and (2) above when at appears from the facts of
the case, even though no previous conviction has been, proved,
that he is by habit a member of a gang of dacoits, or of thieves
or a dealer in stolen property, or a tracker in women or girls
for immoral purposes;
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(v) Any person convicted of an offence and sentenced to
imprisonment under the corresponding sections of the Indian
Penal Code (Central Act XIV of 1860) and the Code of Criminal
Procedure, 1973 (Central Act 2 of 1974).
(vi) Any person convicted by a Court or tribunal acting outside
India, of an offence which would have rendered him liable to
be classified as a habitual offender if he had been convicted
in a Court established in India.
(vii) Any person who is a habitual offender under the Tamil
Nadu Restriction of Habitual Offenders Act, 1948 (Tamil Nadu
Act VI of 1948) or other corresponding Acts:
(viii) If a prisoner was previously classified as habitual prisoner
by a court he shall be continued to be classified as habitual
prisoner whatever be the nature of offences for which he is
later convicted.
Explanation.- For the purposes of this definition the word
conviction shall include an order made under section 117 read
with 110 of the Code of Criminal Procedure,1973 (Central Act
2 of 1974).
● 225. Classes of prisoners: (1) As mentioned in rule 217, convicted
prisoners are divided into two divisions or classes, A and B.
(i) prisoners shall be eligible for class A, if they by social status,
education or habit of life have been accustomed to a superior
mode of living, Habitual prisoners may at the discretion of the
classifying authority , be included under this class on grounds
of character and anstecedents.
(ii) Class B shall consist of prisoners who ate not classified in
Class A.
(iii) Notwithstanding anything contained in sub-rule (i), any person
convicted of an offence involving gross indecency or exhibiting
grave depravity of character may not be placed in class A.
The Rules for the Superintendence and Management of Jails in
the Bombay State, 1954
● Chapter XLI, Section II: Rule 3: Habitual women prisoners;
prostitutes and procuress and young women prisoners shall
be segregated.
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The Karnataka Prisons and Correctional Services Manual - 2021
● 418. Classification of convicted prisoners – Convicted prisoners
are divided into two classes as Class I (Class-A)and Class II
(Class-B).–
i. Prisoners will be eligible for Class I (Class-A) if.–
a) They are non-habitual prisoners of good character;
b) They by social status, education and habit of life have
been accustomed to a superior mode of living; and
c) They have not been convicted of.–
1) Offences involving elements of cruelty moral degradation
or personal greed;
2) Serious premeditated violence;
3) Serious offence against women and children;
4) Serious offences against property;
5) Offences relating to the possession of explosives, fire arms
and other dangerous weapons with the object of committing
an offence or of enabling an offence to be committed;
6) An offence under the suppression of immoral traffic Act;
7) Abetment or incitement of offences;
ii. Class II (Class-B) will consist of prisoners who are not
classified as Class I (Class-A)
iii. Notwithstanding anything contained in any person
convicted of an offence involving gross indecency or
exhibiting gross depravity of character may not be placed
in Class I (Class-A).
Rajasthan Prisons Rules, 2022
● 681. Prison Industries and Work Programmes. Rule (22)
Prisoners who have shown, or are likely to have, a strong
inclination to escape or are members of a wandering or criminal
tribe, even though eligible, shall not be employed on extramural
work.
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Prison Manual 2021 for the Superintendence and Management
of the Jails in Himachal Pradesh
● 26.69. State Government shall lay down dietary scales for
women prisoners keeping in view their calorie requirements
as per medical norms. The diet shall be in accordance with
the prevailing dietary preferences and tastes of the local area
in which the prison is located. Cooked food shall be brought
to the female enclosure by a convict-cook accompanied by a
warder and placed outside the enclosure gate from where it
shall be taken inside by the female warder or a female prisoner.
The menial during shall, whenever possible, be performed by
the female prisoners and the refuse etc., placed outside the
enclosure, to be removed by paid sweeper. If there are no
females of suitable caste for conservancy work paid-sweepers
shall be taken into the enclosure in charge of a wander and
under the conditions laid down in paragraph 214.
XIV. Prison Manuals and the Legacy of Discrimination
150. We shall begin the analysis of the manuals/rules by examining
whether caste was a ground of classification before the Constitution
came into force.
(i) History of “Caste” in Prison Manuals
151. According to the Committee on Prison Discipline 1836-38, to force
a man of ‘higher caste’ to work at any trade would ‘disgrace him’
and his family, and would be viewed as cruelty.234 Convicts from
communities lower in the caste hierarchy were expected to continue
with their customary occupations in jail. The caste hierarchy outside
the prison was replicated within the prison.
152. The Committee’s recommendations for including a common mess
instead of food allowances for prisoners to cook their own meals,
which was greater accommodation of caste, were shelved. In the
1840s, prisoners were granted food allowances and they could
prepare their own meals, duly observing their caste practices. To
replace this, a stricter mess system was introduced in some prisons.
However, prisoners were divided along caste lines and each group
was assigned a different prisoner cook. Among Europeans outside

234 Committee on Prison Discipline to the Governor General of India in Council, 1838, page 106.
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the prison system, “there was bewilderment, even rage, at the extent
to which caste had been ‘basely and indecently succumbed to in
our Indian jails’”.235
153. But the British prison administration broadly agreed that caste must
be respected even inside prisons. An 1862 Report of the Inspector
of Prisons in Oudh showed that in Lucknow Central Jail, these
prejudices were entertained to the extent that Brahmin inmates would
be allowed to bathe before they ate and to mark out a designated
area where they would receive their food and where no one would
be allowed to enter.236 David Arnold wrote about the complexity of
managing caste in Indian prisons and the administration’s fears:
“With regard to caste and community, the issue was more
complex. Physical labour was the mark of the lowest Hindu
castes (and their Muslim counter parts), while such ritually
polluting tasks as shoemaking, which involved handling
leather, or the removal of human urine and excrement,
were regarded as the stigmatising occupations of the
very lowest castes, the untouchables. Was it, therefore,
legitimate penal practice to force high-caste Hindus, or
well-born (ashraf) Muslims, to toil as if they were from
labouring or untouchable castes? Was denial of caste
status a morally justified attribute of prison life, even a
fitting deterrent against further criminal acts? The British
were particularly wary on this score because of the intense
resistance to common messing in north Indian jails in the
1840s and 1850s, which, by denying high-caste prisoners
the right to cook their own food, provoked fierce prison
demonstrations and contributed to the rash of jailbreaks
during the opening phase of the 1857–58 uprising. Colonial
authorities also recognized the strength of Indian feeling
against any measures (whether in the jails, the army, or
the courts) that appeared to attack caste or favour the
imposition of Christianity.”237

235 David Arnold and David Hardiman (eds.), Subaltern Studies VIII: Essays in Honour of Ranajit
Guha, Oxford University Press (1994), pp. 148-187, at p. 172
236 Report of the Inspector of Prisons, Oudh, 1826, p. 33 as cited in David Arnold (1994), p. 172.
237 David Arnold, “Labouring for the Raj: Convict Work Regimes in Colonial India, 1836–1939”, in Christian
G Vito and Alex Lichtenstein (eds), Global Convict Labour, Brill (2015), pp. 199-221, at p. 209.
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154. In line with their overall approach, the colonial administrators linked
caste with prison administration of labour, food, and treatment of
prisoners. They emboldened the occupational hierarchy with legal
policy and imported the vice of caste-based allocation of labour into
the prison, due to pressure from the oppressor castes. Responding
to the doubts raised by Inspector General of Madras in 1871, the
Government of India responded that prisoners shall not be put into
labour that “really causes the loss of caste” and that the management
should not give an impression that the government wished to destroy
caste of the native inmates.238 Similarly, the Madras Jail Manual, 1899
stated that “In allotting labour to convicts reasonable allowance shall
be made for caste prejudice, e.g., no Brahmin or caste Hindu shall
be employed in chucklers’ [cobblers’] work. Care shall, however, be
taken that caste prejudice is not made an excuse for avoiding heavy
forms of labour”.239
155. Thus, the supposedly polluting occupations were allocated to the
communities placed lower in the caste hierarchy. Not only were
certain communities expected to carry out their “hereditary trades”
within prisons, the supposed higher caste prisoners’ caste privileges
were preserved.
156. The 1919-1920 Indian Jail Committee Report suggested classification
in prisons should ensure that the young and inexperienced offenders
were not contaminated by the influence of the more experienced,
habitual offenders. This classification and resultant segregation were
deemed essential primarily as a means of achieving sound prison
administration.240
157. Caste was used as a ground for differentiating prisoners. The nature
of the Manuals could be seen from Rule 825 of the Uttar Pradesh Jail
Manual, 1941 which provided: “The Superintendent shall not inflict
the punishment of whipping on a superior class convict except with
previous permission of the State Government.” Rule 719 provided,

238 Secretary, India, Home (Judicial), to Chief Secretary, Madras, 8 July 1871, Madras Judicial Proceedings,
no. 98, 24 October 1871] – as cited in David Arnold (2015), p. 210.
239 As cited in David Arnold (2015), p. 210
240 Report of The Indian Jails Committee, 1919-1920, at p. 34: “We are satisfied as to the evil influence
which can be exercised in a prison by the habitual or professional criminal, and we regard the adoption
of proper methods of classification and the provision of adequate means of separation as the third
essential factor in sound prison administration.” See https://jail.mp.gov.in/sites/default/files/Report%20
of%20the%20%20Indian%20Jail%20Committee,%201919-1920.pdf
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“Reasonable respect shall be paid to religious scruples and caste
prejudices of the prisoners in all matters as far as it is compatible
with discipline.”
158. Even after independence, Rule 37 of the Rajasthan Prison Rules
1951, until recently, provided as follows: “Separate receptacles shall
be provided in all latrines for solid and liquid excreta, and the use of
them shall be fully explained to all prisoners by the members. The
Mehtars shall put a layer of dry earth at least 1 inch thick Into each
receptacle for solid excreta before it is used, and every prisoner
after he uses a receptacle shall cover his dejecta with a scoopful
of dry earth. Vessels for urine shall be one-third filled with water.”
Rule 67 provided, “The cooks shall be of the non-habitual class. Any
Brahmin or sufficiently high caste Hindu prisoner from this class is
eligible for appointment as cook. All prisoners who object on account
of high caste to eat food prepared by the existing cooks shall be
appointed a cook and be made to cook for the full complement of
men. Individually criminal prisoners shall, under no circumstances,
be allowed to cook for themselves”.
159. In 1987, the RK Kapoor Committee made observations about the
inadequacy of classification and segregation in prisons. It noted
that while women, young offenders, criminal lunatics, and prisoners
suffering from infectious diseases and even prisoners with ‘better
socio-economic background’ were duly segregated, the rest of
the prisoners were huddled together. The report noted that the
classification into smaller groups was not along systematic lines.241
It underlined the objective of classification as follows:
“11.4 … The objective of classification should be not only to
prescribe and pursue individualised treatment programmes
for reformation and rehabilitation of inmates, but also to
ensure effective management from the angle of security
and discipline.
11.5 A prisoner should not be classified merely by his
physical appearance or by the nature of the crime
committed by him or the information/data, if any, furnished
by the police about his activities. It is necessary to know

241 Report of The Group of Officers on Prison Administration, 1987, p. 156 (“RK Kapoor Committee”).
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and understand, as thoroughly as possible, each prisoner
as an individual, soon after his admission. An in-depth study
of his total personality is required. Personality means the
whole background of the prisoner, i.e. his entire life history,
and what he thinks, feels and acts by natural instinct and
by habit of social conditioning. Hence, it is essential that
each prisoner should be studied separately by a team
consisting of experienced hail officials and of experts
like psychiatrists, psychologists, trained social workers
and medical officers. The officer-in-charge of industries,
education and vocational training should also join this
team which should be called the Classification Committee.
11.7 The recommendations of the classification committee
should broadly fall under two heads: (a) classification
in respect of security and control, and (b) classification
from the point of view of correction, reformation and
rehabilitation. After studying a prisoner, in detail, and
making its assessment the classification committee should
make recommendations on the following points in regard
to his needs.”242
The Report thus suggested that first, the purpose of classification
in prisons must be two-fold: prison security/discipline as well as
reformation of the prisoner; second, classification should be based on
the individual needs of the prisoner based on a studied assessment
of their personality.
160. It is clear from the above discussion that caste was used as a
factor of classification in prisons. However, this does not have
any effect on examining the validity of the impugned provisions. In
fact, it suggests that the colonial administrators were open to even
adopting discriminatory social practices to not upset the oppressor
castes. The upholding of caste differences by the British inside the
prisons reflected their overall support to legitimizing the law of caste.
However, this Court cannot adopt the approach taken by the colonial
administrators. The impugned provisions shall be examined on the
basis of principles laid under the Constitution.

242 Ibid, pp. 157-160
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(ii) Can Caste be a Basis in Classification?
161. The petitioner has averred that the Prison Manuals violate Article
14 of the Constitution of India in so far as they privilege a particular
section of the society based entirely on its caste identity. They cast
disparate burdens on prisoners based on their caste-identity.
162. A valid classification under Article 14 presupposes a definite yardstick
to distinguish the classes created, and the difference must be real,
pertinent and discernible.243 The State is free to recognise degrees
of harm as long as the basis of classification is not arbitrary, artificial,
or evasive. The line between the two classes must be clear and not
illusory, vague, and indeterminate.
163. The impugned rules are challenged on the ground that first, they
directly identify caste as a means to allocate intramural labour,
food-duties; second, by using vague terms such as “suitable caste” or
“superior method of living” and similar terms, they tend to advantage
the so-called higher castes; and third, they target the members of
denotified tribes. We will now discuss whether caste is an intelligible
and rational principle of classification and whether it has a rational
nexus with the object of the classification.
164. Caste can be an intelligible principle of classification as it has
been used to create protective policies for the marginalized
castes. The Constitution recognises caste as a proscribed ground
of discrimination under Article 15(1), and envisions a society free
from caste-prejudices. Furthermore, the Constitution provides for
the enumeration of certain castes and tribes as Scheduled Castes
and Scheduled Tribes in order to facilitate protective discrimination
and overall promote equitable distribution of resources. Article 15(4)
allows the state to make special provisions for the advancement
of socially and educationally backward classes of citizens, which
includes Scheduled Castes and Scheduled Tribes. In that sense,
caste can be ground for classification, as long as it is used to grant
benefits to the victims of caste-discrimination.
165. However, as evident from the language of Article 15(1), caste cannot
be a ground to discriminate against members of marginalized castes.

243 Murthy Match Works v. Asst Collector of Central Excise (1974) 4 SCC 428
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Any use of caste as a basis for classification must withstand judicial
scrutiny to ensure it does not perpetuate discrimination against the
oppressed castes. While caste-based classifications are permissible
under certain constitutional provisions, they are strictly regulated
to ensure they serve the purpose of promoting equality and social
justice.
166. In the context of prisons, valid classification must be a functional
classification.244 The classification of prisoners has been considered
both from the point of view of security and discipline as well as
reform and rehabilitation.245 This has been the objective. However,
there is no nexus between classifying prisoners based on caste and
securing the objectives of security or reform. Limitations on inmates
that are cruel, or irrelevant to rehabilitation are per se unreasonable,
arbitrary and constitutionally suspect.246 Inmates are entitled to fair
treatment that promotes rehabilitation, and classification of any kind
must be geared towards the same. Courts have been enjoined with
the duty “to invigorate the intra-mural man-management so that the
citizen inside has spacious opportunity to unfold his potential without
overmuch inhibition or sadistic overseeing”.247 Segregating prisoners
on the basis of caste would reinforce caste differences or animosity
that ought to be prevented at the first place. Segregation would not
lead to rehabilitation.
167. The petitioner’s counsel have brought to the notice the observations
made by the Madras High Court in C. Arul v. The Secretary to
Government.248 One of the prayers in the writ petition was “not to
discriminate the prisoners on the basis of the caste and forbearing
the jail authority from confining Palayamkottai prison inmates on
caste basis”. The writ petition was not entertained, as the High
Court accepted the explanation of the State government that “the
inmates belonging to different castes are housed in different blocks,
in order to avoid any community clash, which is prevailing common
in Tirunelveli and Tuticorin Districts”. It was also noted that “there

244 Charles Sobraj v. Supdt., Central Jail, 1978 INSC 149
245 RK Kapoor Committee, pp. 157-160.
246 Sunil Batra (I) v. Delhi Administration (1978) 4 SCC 494
247 Hiralal Mallick v. State of Bihar (1977) 4 SCC 44
248 W.P.(MD) No. 6587 of 2012 (Madras High Court, Order dated 28 October 2014)
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is rivalry between two groups on account of caste feeling, which is
regular in the District and in order to avoid any untoward incident and
put an end to such rivalry, the Prison Authority is compelled to house
the inmates of different communities in different blocks”. We cannot
agree with the position taken by the High Court. It is the responsibility
of the prison administration to maintain discipline inside the prison
without resorting to extreme measures that promote caste-based
segregation. Adopting the logic accepted by the High Court is similar
to the argument which was given in the United States to legalize
race-based segregation: separate but equal.249 Such a philosophy
has no place under the Indian Constitution. Even if there is rivalry
between individuals of two groups, it does not require segregating
the groups permanently. Discipline cannot be secured at the altar
of violation of fundamental rights and correctional needs of inmates.
The prison authorities ought to be able to tackle perceived threats
to discipline by means that are not rights-effacing and inherently
discriminatory.
168. Furthermore, the differentia between inmates that distinguishes
on the basis of “habit”, “custom”, “superior mode of living”, and
“natural tendency to escape”, etc. is unconstitutionally vague and
indeterminate. These terms and phrases do not serve as an intelligible
differentia, that can be used to demarcate one class of prisoners
from the other. These terms have resultantly been used to target
individuals from marginalized castes and denotified tribes.
169. The objective of classification for labour for treatment and for
conferment of entitlements such as remissions has to be maximisation
of the reformatory potential of prisons. Such classification should be
based solely on the correctional needs of the individual prisoner. An
objective assessment of these needs prior to the classification is a
constitutional imperative. Only such classification that proceeds from
an objective inquiry of factors such as work aptitude, accommodation
needs, special medical and psychological needs of the prisoner would
pass constitutional muster. Classification based on caste reduces the
individual prisoner to a group identity and does not leave room for an
objective assessment of their correctional needs. Their reformation

249 For a broader history, see Michael Klarman, Unfinished Business: Racial Equality in American History,
Oxford University Press (2007).
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is stultified by the burdens of their group-identity and thereby, their
presumed ability to discharge stereotypical occupational tasks. This
classification bears no nexus with individual qualifications, abilities
and needs. Such a classification does not aid reformation. It rather
effaces the prisoner’s individuality and deprives them of individualised
assessment of their correctional needs. Such classification bears
no rational nexus with either prison discipline or prison reform. It is
also opposed to substantive equality within prisoners as a class as
it deprives some of them of equal opportunity to be assessed for
their correctional needs, and consequently, opportunity to reform.
The classification on obsolete understanding of caste, based on
pre-constitutional legislations and practices, lacks a rational nexus
with the correctional objectives of classification in prisons.
170. Thus, Rules that discriminate among individual prisoners on the basis
of their caste specifically or indirectly by referring to proxies of caste
identity are violative of Article 14 on account of invalid classification
and subversion of substantive equality.
(iii) The discriminatory manuals
171. On a reading of the impugned provisions, it is clear that the provisions
discriminate against marginalized castes and act to the advantage
of certain castes. By assigning cleaning and sweeping work to the
marginalized castes, while allowing the high castes to do cooking,
the Manuals directly discriminate. This is an instance of direct
discrimination under Article 15(1).
172. The manuals/rules suffer from indirect discrimination by using
broad terms which act to the disadvantage of the marginalized
castes. Phrases such as “menial” jobs to be performed by castes
“accustomed to perform such duties” may appear to be facially
neutral, but refer to marginalized communities, given the history
of systemic discrimination against them. Such indirect usages of
phrases, which target the so-called ‘lower castes’, cannot be permitted
in our constitutional framework. The phrases, though neutral on
their face, carry an embedded bias that disadvantages marginalized
communities by reinforcing historical patterns of labour based on
caste. Even if caste is not explicitly mentioned, phrases like “menial”
and “accustomed” indirectly uphold traditional caste roles. These
provisions disproportionately harm marginalized castes, perpetuate
caste-based labour divisions and reinforce social hierarchies.
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173. The manuals/rules are also based on and reinforce stereotypes
against the marginalized castes. These stereotypes not only demean
and stigmatize marginalized communities but also serve to maintain
and legitimize a social hierarchy that goes against the constitutional
values of equality. The persistence of such associations in official
documents like the Manuals/Rules normalizes the idea that these
tasks are somehow natural for marginalized communities, reinforcing
harmful societal hierarchies. By assigning specific types of work to
marginalized castes based on their supposed “customary” roles,
the Manuals perpetuate the stereotype that people from these
communities are either incapable of or unfit for more skilled, dignified,
or intellectual work.
174. The manuals/rules also reinforce stereotypes against denotified
tribes. Rule 404 of the West Bengal Manual provides that a convict
overseer may be appointed to be a night guard provided that “he
does not belong to any class that may have a strong natural tendency
to escape, such as men of wandering tribes”. The Madhya Pradesh
Manual permits the classification of habitual and non-habitual
criminals, where habitual criminals are described as someone who
“is by habit member of a gang of dacoits, or of thieves or a dealer
in slaves or in stolen property”, even if no previous conviction has
been proved. Furthermore, any member of a denotified tribe may be
treated as a habitual criminal, subject to the discretion of the State
Government.250 Similarly, Rule 217 of the Andhra Pradesh Manual,
Rule 219 of the Tamil Nadu Manual, and Rule 201 of the Kerala
Manual classify as “habitual criminals” those who are by “habit” a
“robber, housebreaker, dacoit, thief or receiver of stolen property”
or that he “habitually commits extortion, cheating, counterfeiting
coin, currency notes or stamps or forgery”, even if “no previous
conviction has been proved, that he is by habit a member of a gang
of dacoits, or of thieves or a dealer in stolen property”. The Andhra
Manual also paints “a member of a wandering or criminal tribe” with
the same brush of being “a bad or dangerous character, or has, at
any time, escaped of attempted to escape from lawful custody”, and
prohibits their employment on any labour outside the walls of the
prison, or to be permitted to pass out of the prison for employment

250 Rule 411, Madhya Pradesh Manual 1987
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of the purpose of being so employed.251 The Manual also describes
“non-habitual prisoners of good character” as someone who “by
social status, education and habit of life have been accustomed
to a superior mode of living”. Conversely, habitual prisoners are
accustomed to an inferior mode of living.252 The Odisha Manual and
Rajasthan Manual also prohibit employment on extramural work of
“Prisoners who have shown, or are likely to have, a strong inclination
to escape or are members of a wandering or criminal tribe”. The
Odisha Rules253 and Tamil Nadu Rules254 prescribe the separation
of habitual offenders from other prisoners. The Maharashtra Rules
state that “Habitual women prisoners; prostitutes and procuress and
young women prisoners shall be segregated.”255
175. The tendency to treat members of denotified tribes as habitual to crime
or having bad character reinforces a stereotype, which excludes them
from meaningful participation in social life. When such stereotypes
become a part of the legal framework, they legitimize discrimination
against these communities. Members of the denotified tribes have
faced the brunt of colonial caste-based undertones of discriminating
against them, and the prison Manuals are reaffirming the same
discrimination. Discrimination against denotified tribes is prohibited
under the ground of “caste” in Article 15(1), as the colonial regime
considered them as belonging to separate hereditary castes.
(iv) Whether a “practice” of untouchability?
176. At the risk of repetition, we must reproduce some of the impugned
provisions. Rule 289(g) of the Uttar Pradesh Manual provides: “A
convict sentenced to simple imprisonment,… shall not be called
upon to perform duties of a degrading or menial character unless
he belongs to a class or community accustomed to perform such
duties; but may be required to carry water for his own use provided
he belongs to the class of society the members of which are
accustomed to perform such duties in their own homes.” Rule 158
states: “Remission to convicts on scavenging duty - Subject to good

251 Rule 448, Andhra Pradesh Manual 1979
252 Rule 1036, Andhra Pradesh Manual 1979
253 Rule 4, Odisha Rules 2020
254 Rule 214, Tamil Nadu Prison Rules 1983
255 Chapter XLI, Section II: Rule 3, Maharashtra Rules
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work and conduct in jail, convicts of the scavenger class working as
scavengers in jails…”
177. Rule 694 of West Bengal Manual provides: “… Interference with
genuine religious practices or caste prejudices of prisoners should be
avoided”. Rule 741 states: “Food shall be cooked and carried to the
cells by prisoner-cooks of suitable caste, under the superintendence
of a jail officer…” Rule 793 provides: “The barber should belong to
the A class. Sweepers should be chosen from the Mether or Hari
caste, also from the Chandal or other castes, if by the custom of the
district they perform similar work when free, or from any caste if the
prisoner volunteers to do the work.” Rule 1117 states: “Any prisoner
in a jail who is of so high a caste that he cannot eat food cooked by
the existing cooks shall be appointed a cook and be made to cook
for the full complement of men.”
178. Rule 36 of the Madhya Pradesh manual states: “While the latrine
parade is being carried out, the mehtars attached to each latrine shall
be present, and shall call the attention of the convict overseer to
any prisoner who does not cover up his dejecta with dry earth. The
mehtars shall empty the contents of the small receptacle into large
iron drums and replace the receptacles in the latrine after having
cleaned them.” Rule 26.69 of the Himachal Pradesh Manual states,
“If there are no female of suitable caste for conservancy work, paid-
sweepers shall be taken into the enclosure in charge of a warder
and under conditions laid down in paragraph 214”.
179. The notion that an occupation is considered as “degrading or menial”
is an aspect of the caste system and untouchability. The caste system
rigidly assigns certain tasks to specific communities based on birth,
with the lowest castes, being relegated to tasks considered impure
or unclean, such as manual scavenging, cleaning, and other forms
of physical labour. That a person belonging to such a community is
accustomed to performing menial tasks is a mandate of the caste
system. Similarly, the reference to “scavenger class” is a practice
of the caste system and untouchability. No social group is born as
a “scavenger class”. They are forced to undertake certain jobs that
are considered ‘menial’ and polluting based on the notions of birth-
based purity and pollution.
180. Refusal to check caste practices or prejudices amounts to cementing
of such practices. If such practices are based on the oppression
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of the marginalized castes, then such practices cannot be left
untouched. The Constitution mandates an end to caste discrimination
and untouchability. The provision that food shall be cooked by
“suitable caste” reflects notions of untouchability, where certain
castes are considered suitable for cooking or handling kitchen
work, while others are not. Besides, the division of work on the
basis of caste is a practice of untouchability prohibited under the
Constitution.
181. As discussed, prison manuals allot tasks of a barber to individuals
from a certain caste, while sweeping work is allowed to Mehtar/
Hari/Chandal or similar castes. It is also provided that work shall be
allotted on the basis of “attitude and sofar as may be practicable with
due regard to his previous habits.” This is a caste-based delegation
of work based on the perceptions of the caste system that certain
castes are meant to do jobs of “sweeping”. The rule that a prisoner
of a high caste be allowed to refuse the food cooked by other castes
is a legal sanction by the State authorities to untouchability and the
caste system.
182. Let us refer again to the impugned provisions which deal with “habits”
of certain communities. Rule 440 of the Andhra Pradesh Manual
states: “The prison tasks including conservancy work shall be allotted
at the discretion of the Superintendent with due regard to capacity
of the prisoner, his education, intelligence and attitude and so far
as may be practicable with due regard to his previous habits.” Rule
784 of the Odisha Manual states, “Prisoners who have shown, or
are likely to have, a strong inclination to escape or are members
of a wandering or criminal tribe, even though eligible, shall not be
employed on extramural work.” Rule 201 of Kerala Manual defines
“habitual criminals” as follows: “(1) any person convicted of an offence
punishable under Chapters XII, XVII and XVIII of the Indian Penal
Code, whose facts of the present case, show that he is by habit a
robber, house breaker, dacoit, thief or receiver of stolen property or
that he habitually commits extortion, cheating, counterfeiting coin,
currency notes or stamps or forgery”; “(4) any person convicted of any
of the offence specified in (i) above when it appears from the facts
of the case, even though no previous conviction has been proved,
that he is by habit a member of a gang of dacoit, on of thieves or a
dealer in slaves or in stolen property”; “(5) any person of a Criminal
tribe subject to the discretion of the Government.”
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183. The provisions that “men of wandering tribes” or “criminal tribes”
have a “strong natural tendency to escape” or are by “habit”
accustomed to theft reflects a stereotype that has its basis in the
colonial understanding of India’s caste system. These stereotypes
not only criminalize entire communities but also reinforce caste-
based prejudices. They resemble a form of untouchability, as they
assign certain negative traits to specific groups based on identity,
perpetuating their marginalization and exclusion. By marking them
as “criminal by birth,” the law institutionalized a prejudiced view of
these tribes, treating them as inherently dishonest and prone to
theft. This stereotype—echoing elements of untouchability—reduced
their humanity to a set of negative traits and perpetuated their
exclusion from mainstream society. Once labelled a criminal tribe,
individuals from these communities faced systematic discrimination
in employment, education, and social services. The stigma attached
to these labels extended beyond legal frameworks and became a
part of social consciousness
184. The provision that a “non-habitual” prisoner is “by social status”
and “habit of life… accustomed to a superior mode of living” is
another caste-based construct. This hierarchical view of social
status plays into the caste-based division of labour and morality
that has long been entrenched in Indian society. While those from
higher castes or classes were perceived as refined and deserving
of more lenient treatment (even within the colonial criminal justice
system), those from lower castes or marginalized communities
were viewed as having a natural tendency towards criminality or
immorality. This was not only an injustice but also reinforced existing
power structures, ensuring that marginalized groups were trapped
in cycles of poverty and discrimination, unable to transcend the
stigmatization they faced.
(v) The right to overcome caste prejudices under Article 21
185. The impugned rules foster the antiquated notions of fitness of a
particular community for a certain designated job. These rules
reinforce occupational immobility of prisoners who belong to certain
castes. For instance, rules assigning sweeping work which stipulate
that “sweepers shall be chosen from the Mehtar or Hari caste,
also from the Chandal or other low castes, if by the custom of the
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district they perform similar work when free, or from the caste if the
prisoner volunteers to do the work” designate the enumerated castes
for the work in issue. The three castes enumerated in the Rule
are Scheduled Castes and have historically been compelled to do
manual scavenging. The only link between the caste so designated
and the work in question is their historical, caste-based link with the
profession. It does not regard their work capacity, health, education,
and ability, based on an individualised assessment of the individual.
Effectively, such rules obviate any inquiry into the correctional
needs of the inmate and how, if at all they may be furthered by the
assignment of work.
186. Such rules are indifferent to the potential of the individual prisoner
to reform. Such a state of affairs is entirely opposed to substantive
equality, as it contributes to institutional discrimination, depriving
inmates of an opportunity to reform, at par with the others over whom
the pall of caste does not hang.
187. Article 21 envisages the growth of individual personality. Caste
prejudices and discrimination hinder the growth of one’s personality.
Therefore, Article 21 provides for the right to overcome caste
barriers as a part of the right to life of individuals from marginalized
communities. The protection provided by Article 21 can be seen
as a constitutional guarantee that individuals from marginalized
communities should have the freedom to break free from these
traditional social restrictions. It extends beyond mere survival to
ensure that they can flourish in an environment of equality, respect,
and dignity, without being subjected to caste-based discrimination
which stifles their personal growth.
188. When caste prejudices manifest in institutional settings, such as
prisons, they create further restrictions on the personal development
and reformation of individuals from marginalized communities. When
Prison Manuals restrict the reformation of prisoners from marginalized
communities, they violate their right to life. At the same time, such
provisions deprive prisoners from marginalized groups of a sense
of dignity and the expectation that they should be treated equally.
When prisoners from marginalized communities are subjected to
discriminatory practices based on caste, their inherent dignity is
violated.
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(vi) Caste-based division of labour/work: Whether forced labour?
189. Several provisions of different Prison Manuals impose a restriction
on labour of certain communities. That is, these communities are
allowed to undertake only one kind of labour. “Menial” jobs are
prescribed to be performed by those communities who have been
“accustomed” to performing such duties. The language used in such
Manuals/Rules is rooted in a caste-based societal structure, where
traditionally, certain communities were relegated to tasks considered
impure or inferior, such as cleaning, manual scavenging, or other
forms of servitude.
190. Again, at the risk of repetition, let us now refer to these impugned
provisions. Rule 289 of the Prison Manual of Uttar Pradesh provides
that a convict “shall not be called upon to perform duties of a degrading
or menial character unless he belongs to a class or community
accustomed to perform such duties”. Rule 741 of the West Bengal
Prison Manual provides “Food shall be cooked and carried to the
cells by prisoner-cooks of suitable caste, under the superintendence
of a jail officer”. Rule 793 provides, “The barber should belong to
the A class. Sweepers should be chosen from the Mehther or Hari
caste, also from the Chandal or other castes, if by the custom of the
district they perform similar work when free, or from any caste if the
prisoner volunteers to do the work”. Rule 36 of the Madhya Pradesh
Jail Manual 1987 provides, “While latrine parade is being carried out,
the mehtars attached to each latrine shall be present. The Mehtars
shall empty the small receptacles into large iron drums and replace
the receptacles after having cleaned them”. Rule 563 provides, “The
cook shall be of non-habitual class”. Rule 26.69 of the Himachal
Pradesh Manual states, “If there are no female of suitable caste for
conservancy work, paid-sweepers shall be taken into the enclosure in
charge of a warder and under conditions laid down in paragraph 214”.
191. Such provisions often lead to an unfair distribution of labour within
the prison system, with persons from specific communities performing
honourable tasks, while those from marginalized communities are
forced into undesirable work. It perpetuates the idea that some
individuals are inherently suited to low-status labour based solely
on their birth, reinforcing deep-rooted caste inequalities.
192. The provision that “food” shall be cooked by prisoner-cooks of
“suitable caste” empowers the jail officer to discriminate against the
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marginalized castes. At the same time, it takes away the opportunity
from them to cook food. The imposition of cleaning latrines and
sweeping work to only “Mehtar, Hari caste or Chandal” or similar
castes is forcing only a type of work, which is considered low-grade,
upon them. Imposing labour or work, which is considered impure or
low-grade, upon the members of marginalized communities amounts
to “forced labour” under Article 23. The Court in Sunil Batra (II)256 had
also held that “degrading labour” cannot be forced upon prisoners.
193. Being forced to undertake the menial tasks simply because of their
caste background robs prisoners of the element of choice that other
prisoners enjoy. Forcing marginalized caste inmates to perform
tasks like cleaning latrines or sweeping, without providing them any
choice in the matter and based purely on their caste, constitutes a
form of coercion. These prison rules assign them degrading labour
that other inmates are not required to perform. Prisoners from
lower castes are systematically exploited and their vulnerability as
marginalized individuals is used as justification for assigning them
low-grade tasks.
194. This type of labour assignment, based on their caste, cannot be
classified as voluntary. Forcing the members of oppressed castes
to selectively perform menial jobs amounts to forced labour under
Article 23. Dr Ambedkar had articulated that the socio-economic
situation of oppressed communities should not be used to exploit
their labour. Article 23 strikes at this philosophy. The said article is
not a caste-ignorant provision, but a caste-conscious provision.
195. Article 23 was incorporated into the Constitution to protect the
members of oppressed castes from exploitative practices, where
their labour is taken advantage of, and without any adequate return.
This is evident from the Constituent Assembly Debates. However,
the prison rules, by exploiting the labour of the oppressed castes,
perpetuate the same injustice to guard against which Article 23
was inserted into the Constitution. Assigning labour based on caste
background strips individuals of their liberty to engage in meaningful
work, and denies them the opportunity to rise above the constraints
imposed by their social identity.

256 [1980] 2 SCR 557 : 1979 INSC 271
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196. We therefore find that the impugned provisions are violative of Articles
14, 15, 17, 21, and 23. We shall now refer to the Model Prison
Manual 2016, which has been cited by the Union government as a
modern manual addressing all concerns.
XV. Model Prison Manual 2016: Whether Adequate?
197. Ms. Aishwarya Bhati, learned ASG, has submitted a brief note
referring to the Model Prison Manual for the Superintendence and
Management of Prisons in India, 2003, and The Model Prison Manual,
2016. It is argued that the 2016 Manual explicitly prohibits caste and
religion-based discrimination practices. The note refers to some of
the relevant provisions:
2003 Manual
a. The 2003 Manual in Para 2.15.1 states that “Management
of kitchen or cooking of food on caste or religious places
will be totally banned in prisons.”
b. In Para 15.22 the Manual states that “any special
treatment to a group of prisoners belonging to a particular
caste or religion is strictly prohibited.”
c. In Chapter XXIV, Para 24.02 Note (ii) states that “No
classification of prisoners shall be allowed on grounds of
socio-economic status, caste or class.”
d. Para 24.35 states that “Management of kitchen or
cooking of food on caste or religious places will be totally
banned in prisons for women.”
2016 Manual
a. The 2016 Manual in Para 2.12.4 states that “Management
of kitchen or cooking of food on caste or religious places
will be prohibited in prisons.”
b. In Para 17.22 the Manual states that “any special
treatment to a group of prisoners belonging to a particular
caste or religion is strictly prohibited.”
c. In Para 17.25 Note (ii) states that “No classification of
prisoners shall be allowed on grounds of socio-economic
status, caste or class.”
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d. Para 24.35 states that “Management of kitchen or
cooking of food on caste or religious places will be strictly
banned in prisons for women.”
198. The note submitted by Ms. Bhati also refers to the Advisory dated
26 February 2024 issued by the Ministry of Home Affairs, through
the Deputy Secretary (PR & ATC) to the Principal Secretary (Home/
Jails) of all states and UTs and the DG/IG Prisons of all States and
UTs to ensure that the State Prison Manual/Prison Act should not
contain any discriminatory provisions. The advisory further states that:
“It may be noted that the Constitution of India prohibits
any kind of discrimination on the grounds of religion, race,
caste, place of birth etc. The Model Prison Manual, 2016
prepared by the Ministry of Home Affairs and circulated to
all States and UTs in May 2016 explicitly prohibits caste and
religion-based discrimination of prisoners in management
of kitchen or cooking of food on caste or religious basis.
The manual also provides that any special treatment to
a group of prisoners belonging to a particular caste or
religion is strictly prohibited. It further provides that no
classification of prisoners shall be allowed on grounds of
socio-economic status, caste or class.”
199. To the contrary, Ms. Disha Wadekar counsel for the petitioner, has
argued that the Model Prison Manual 2016 is not adequate and
that it does not address issues of caste-based division of labour,
segregation, and discrimination against denotified tribes. A reference
was made to the definition of “habitual offenders” to argue that it
is misused against persons from denotified tribes in prison. It has
been submitted that the Ministry of Home Affairs may be directed to
incorporate and reform the Model Prison Manual, 2016, to address
the highlighted issues.
200. The Model Prison Manual 2016 was prepared “to reflect the
understanding behind constitutional provisions, Supreme Court
directions on prison administration and international instruments”.257
It covers a range of aspects relating to prisons, including institutional
framework, custodial management, medical care, education and

257 Model Prison Manual 2016, p. 4, https://www.mha.gov.in/sites/default/files/PrisonManual2016.pdf
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training of prisoners, maintenance of prisoners, emergency situations,
remission, parole, premature releases and inspection of prisons,
among other things. The Model Prison Manual 2016 also focuses
on “prison computerization, special provisions for women prisoners,
focus on after care services, rights of prisoners sentenced to death,
repatriation of prisoners from abroad, enhanced focus on prison
correctional staff”.258 New chapters on legal aid and inspection of
prisons have been incorporated.
201. The Model Prison Manual 2016 suffers from several lacunae. The
first issue to be noted with reference to the Manual is its classification
of “habitual offenders”. The Manual defines “habitual offender” as
“a prisoner classified as such in accordance with the provisions
of applicable law or rules”.259 “Casual prisoner” is defined as “a
prisoner other than a habitual offender”.260 The Manual provides
for “the setting up of separate institutional facilities for different
categories of prisoners”, including “maximum security prisons/
annexes/yards for high-risk prisoners and hardened or habitual
offenders”.261 The Manual mandates the classification of undertrial
prisoners in three categories, wherein habitual offenders are tagged
along with “Gangsters, hired Assassins, dacoits, serial killers/rapists/
violent robbers, drug offenders, communal fanatics and those highly
prone to escapes/ previous escapees/attack on police and other
dangerous offenders/including those prone to self-harm/posing threat
to public order”.262 The habitual offenders are tagged in the same
category in relation to classification of high risk offenders and for
determination of the level of security for effective surveillance.263
Similarly, regarding the women prisoners, it has been provided that
“Habitual offenders shall be separated from casual prisoners”264 and
that “Habitual offenders, prostitutes and brothel keepers must also
be confined separately”.265

258 Ibid
259 Para 13 of Chapter I, Model Prison Manual 2016
260 Para 3 of Chapter I, Model Prison Manual 2016
261 Para 2.03 of Chapter II, Model Prison Manual 2016
262 Ibid, Para 24.01
263 Ibid, Para 25.02
264 Ibid, Para 26.04 (ii)
265 Ibid, 26.04 (iii)
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202. In a previous section of this judgment, we highlighted that the phrase
“habitual offender” in several prison manuals refers to people from
denotified or wandering tribes. Therefore, this definition cannot be
left to be interpreted and applied “in accordance with the provisions
of applicable law or rules”. Otherwise, what it will end up doing is
to classify and separate people from denotified tribes in prisons
without any basis.
203. Second, the Manual does not explicitly prohibit physical caste-
based segregation of prisoners, except in prisons for women. Only
the chapter on “Women Prisoners” provides that “[n]o classification
of prisoners shall be allowed on grounds of socioeconomic status,
caste or class”.266 This is concerning, as the Manual was prepared in
2016, when prison manuals in different States mandated caste-based
division of prisoners, as indicated in our analysis in the previous
section. The Manual of 2016 therefore should have adopted a specific
provision prohibiting the classification of prisoners on the basis of
caste for all prisoners, as it does in the case of women prisoners.
204. Third, the Manual does not prohibit division of work on the basis of
caste, except in cooking. Para 2.12.4 provides that “Management
of kitchen or cooking of food on caste or religious basis shall be
prohibited in prisons”. Similarly, for women prisons, para 26.45
provides “Management of kitchens or cooking food on caste or
religious basis should be strictly banned in prisons for women”. In
effect, prohibition of caste discrimination in kitchens shall also apply
to allotment of work to cooks.267 However, the Manual does not
prohibit discrimination on the allotment of work other than cooking.
As analysed, various prison manuals in different States specify
different work to people on the basis of caste. The Model Manual
2016 should have taken into account such practices and provided
specifically for their prohibition.
205. Instead, the Manual empowers the jail superintendent “for the
execution of all orders regarding the labour of prisoners” and that
they “shall assign to each prisoner his work on the recommendation
of the classifying Committee constituted in each Central Prison for

266 Ibid, Para 26.04 Note (ii)
267 See Paras 6.30 and 6.31.
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the purpose”.268 Furthermore, the medical officer shall “examine all
newly admitted prisoners and record in the admission register and
medical sheets particulars regarding their health, and the kind of
labour they can perform in view of their health conditions”.269 If the
medical opinion states that “the health of any prisoner suffers from
employment of any kind or class of labour, he shall record such
opinion in the prisoner’s sheet and the prisoner shall not be employed
on that labour”.270 Besides, the Manual penalizes any resistance by
the prisoners to perform labour allotted to them. “Wilfully disabling
himself from labour” is listed as a prison offence.271
206. The above provisions prima facie may be essential to maintain
prison discipline, but absent any provision prohibiting caste-based
allotment of work, these provisions may be used to target prisoners
from marginalized castes. It may create a scenario where a prisoner
from a marginalized caste may not be able to deny the work allotted
to them on the basis of their caste, which would also be violative of
the Articles 21 and 23 of the Constitution of India, which protects
individual dignity and prohibits forced labour. In this regard, we may
again refer to Sunil Batra (II)272 which held that “allotment of degrading
labour” in prisons is “an infraction of liberty or life in its wider sense
and cannot be sustained” unless the procedure under Article 21 is
satisfied. No such procedure which divides labour on the basis of
caste can be sustained. This prohibition shall also apply to labour
done in prison industries and skill development programmes under
paras 15.30 and 15.31, work done by undertrial prisoners under
paras 24.43 and 24.44, work done by high-risk offenders under paras
25.19, work done by women prisoners under paras 26.106 to 26.109,
and labour done by young offenders under paras 27.32 and 27.33.
207. Fourth, the counsel for the petitioner have argued that the Manual
does not refer to the provisions of the Prohibition of Employment as
Manual Scavengers and their Rehabilitation Act, 2013, which prohibit
manual scavenging. Clauses 2.10 and 6.79 deal with toilets. We

268 Ibid, Para 4.08.
269 Ibid, Para 7.45 (xxiii).
270 Ibid, Para 7.67.
271 Ibid, Para 21.09 (xxxv).
272 [1980] 2 SCR 557 : 1979 INSC 271
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clarify that the Act has a binding effect even on prisons. In relation
to toilets, manual scavenging273 or hazardous cleaning274 of a sewer
or a septic tank inside a prison shall not be permitted.
208. Fifth, it has also been argued that caste-based privileges provided to
certain prisoners are not forbidden, except in para 17.22. The said
para states, “The main festivals of all religions should be celebrated.
In these, every prisoner should be encouraged to participate. Any
special treatment to a group of prisoners belonging to a particular caste
or religion is strictly prohibited”. In addition, prison offences include
“wilfully hurting other’s religious feelings, beliefs and faiths”275 and
“agitating or acting on the basis of caste or religious prejudices”.276
We clarify that no special treatment shall be given to any group of
persons or individuals on the basis of caste in any scenario.
XVI. Model Prisons and Correctional Services Act, 2023
209. We now refer to the provisions of the “Model Prisons and Correctional
Services Act, 2023”. The Ministry of Home Affairs, in consultation with
various stakeholders, prepared this draft legislation and forwarded it
to all States and Union Territories in May 2023 for adoption in their
respective jurisdictions.277 The vision behind the preparation of the
Model Act was to replace the previous colonial legislations, which
have been “found to be outdated and obsolete”, with “a progressive
and robust Act which is in tune with contemporary modern day needs
and correctional ideology”.278 According to the Ministry, the Model Act
is “a comprehensive document which covers all relevant aspects of
prison management, viz. security, safety, scientific & technological
interventions, segregation of prisoners, special provision for women
inmates, taking appropriate action against criminal activities of
prisoners in the prison, grant of parole and furlough to prisoners,

273 Sections 2(1)(g) and 5, The Prohibition of Employment as Manual Scavengers and Their Rehabilitation
Act, 2013
274 Ibid, Section 7
275 Para 21.09 (xxxvii), Model Prison Manual 2016
276 Ibid, Para 21.09 (xxxviii)
277 Unstarred Question No. 3007 (Lok Sabha, dated 8 August 2023), available at https://www.mha.gov.in/
MHA1/Par2017/pdfs/par2023-pdfs/LS-08082023/3007.pdf
278 Letter dated 10 May 2023 from Home Secretary, Government of India to Chief Secretaries, all States and
UTs, available at https://www.mha.gov.in/sites/default/files/advisory_10112023.pdf
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their education, vocational training and skill development, etc.”279
The Ministry also indicated that as “Prison” is a “State” subject, “it is
for the respective State Governments to make use of the guidance
provided in the Model Prisons and Correctional Services Act, 2023
and enact a suitable legislation on Prisons in their jurisdictions for
bringing improvement in prison management and administration of
prisoners.”280
210. The Model Act does not contain a reference to the prohibition of
caste-based discrimination. This is concerning because the Act
empowers the officer-in-charge of the prison to “utilize the services
of prisoners” for “administration and management of the prisons”.281
Further, disabling from labour and continuously refusing to work is
a prison offence.282 The officer-in-charge should not be given the
liberty to discriminate against any group of prisoners on the basis of
caste. While the Model Prison Manual 2016 refers to the prohibition
of caste discrimination in prisons in several provisions, the Model
Act of 2023 has completely avoided any such mention. A provision
to that effect should be inserted in the Model Act. It should ban
segregation or division of work based on caste.
211. The definition of “Habitual Offender” under Section 2(12) is also
problematic. It states that, “Habitual Offender means a prisoner who
is committed to prison repeatedly for a crime”. The phrase “committed
to prison repeatedly” is vague and over-broad. It can be used to
declare anyone as a habitual offender, even if they have not been
convicted for a crime. The Model Act also provides that “habitual
offenders” may be housed in a high security prison.283 In addition
to the category of habitual offender, the Act creates a category of
“recidivist”, which means “any prisoner who is convicted for a crime
more than once”.284 “Habitual/recidivist prisoners” may be classified

279 Unstarred Question No. 3007 (Lok Sabha, dated 8 August 2023), available at https://www.mha.gov.in/
MHA1/Par2017/pdfs/par2023-pdfs/LS-08082023/3007.pdf
280 Ibid
281 Section 60, Model Prisons and Correctional Services Act, 2023
282 Ibid, Section 39(v) and (vi)
283 Section 2(15), Model Prisons and Correctional Services Act, 2023
284 Ibid, Section 2(29)
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separately and segregated in prisons.285
212. Chapter IX of the Model Act, dealing with “Protection of Society from
Criminal Activities of High-Risk Prisoners, Habitual Offenders and
Hardened Criminals”, also seems to be over-broad. Section 27(1)
states that the society needs to be protected from “habitual offenders,
along with high-risk prisoners, and hardened criminals. The said
category is prohibited for “parole, furlough, or any kind of prison
leave in the normal course”.286 The Act provides that “the release
of a high-risk/hardened/habitual offender convict on completion of
sentence or an under-trial on bail or an inmate released temporarily
on parole/furlough, etc. shall be informed to the Superintendent
of Police of the concerned district, who shall keep a watch on the
activities of such prisoners”.287 This provision gives wide powers to
the police, which may be misused.
XVII. The Continued Targeting of Denotified Tribes
213. The impugned provisions are also an instance of existing discrimination
and targeting of the members of the Denotified Tribes. In a previous
section of this judgment, we held that the impugned provisions
discriminate against the Denotified Tribes. Dr. Muralidhar argued
that the classification of “habitual offender” needs to be completely
done away with. At this stage, it is necessary to discuss how the
classification of “habitual offender” was initially conceptualized.
214. The classification of “habitual offender” emerged prior to the repeal
of the Criminal Tribes Act. Several Provinces had enacted their
habitual offender laws. The Madras Restriction of Habitual Offenders
Act, 1948 applied to individual habitual offenders.288 The Act neither
required a notified offender to attend roll call to any authority nor
provided for taking finger impressions of such offender.289 However,
once a person was notified under the Act to be a habitual offender,
“no opportunity” was given to him “to defend himself against orders

285 Ibid, Sections 5(3), 5(5), 6(3), 26(2), 26(3)
286 Ibid, Section 27(3)
287 Ibid, Section 28(5)
288 The Criminal Tribes Enquiry Committee Report (1949-50), https://ia802807.us.archive.org/11/items/dli.
csl.944/944.pdf, p. 92
289 Ibid, p. 93
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of restriction or internment in a settlement”. Contrary to the Criminal
Tribes Act or the Madras Restriction of Habitual Offenders Act, the
Bombay Habitual Offenders Restriction Act, 1947 granted power to
only competent courts to pass restrictive orders after necessary legal
proceedings. Under the Madras law, such orders could be passed
by government or officers authorised by them.290
215. The Rajasthan Habitual Criminals (Registration and Regulation) Act,
1950 defined “habitual criminal” as “a person who being a member
of a notified tribe” who within the prescribed period, has not “been
declared by an order in writing of the District Magistrate as no longer
a habitual criminal”. Further, it included “a person, who whether he
was a member of a notified tribe or not, has within any period of
ten years following the aforesaid date, been convicted not less than
thrice of any of the offences specified”.291 The Rajasthan Act gave
“too much discretion” to the District Magistrate.292 A biased officer
may never declare any members of a Criminal Tribe as “no longer
habitual criminals” even if they may not have any convictions at
all.293 The Rajasthan Act was “hardly any improvement” from the
Criminal Tribes Act.294
216. The Criminal Tribes Enquiry Committee, while recommending the
repeal of the Criminal Tribes Act, suggested enactment of a central
habitual offender legislation. However, it stated that “a person
should not be branded as a habitual offender merely on grounds of
suspicion”.295 In his oral evidence before the Committee, a deputy
inspector general rank officer from Bihar stated, “In some of the
democratic countries of the world, the surveillance kept over even
hardened criminals is not done in the way in which we do it India,
and a time should come when no criminal should know that he is
really being followed or pursued”.296 The Committee recommended
that “a person who has been convicted twice for any non-bailable

290 Ibid, p. 94
291 Ibid
292 Ibid
293 Ibid
294 Ibid, p. 95
295 Ibid, p. 96
296 Ibid, p. 97
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offences under Chapters XII, XVI and XVII of the Indian Penal Code
including an order under section 118 of the Criminal Procedure Code
should be considered a habitual offender for the purposes of the
new Act”.297 The Committee was of the view that provisions similar
to sections 23, 24, 26, and 27 of the Criminal Tribes Act should not
be included in the new Act.298
217. After the repeal of the Criminal Tribes Act, several States enacted
new habitual offender laws in their jurisdictions. Significantly, most
States adopted an identical definition of “habitual offenders”, referring
to a person who has been sentenced on conviction for at least three
occasion to “a substantive term of imprisonment” for any of more of
the specified offences.299 Similarly, the respective State legislations
conferred power on the government to direct the District Collector to
make a register of habitual offenders within his district by entering
the names and prescribed particulars of such offenders.300 These
Acts also oust the jurisdiction of courts to review the validity of
any direction or order issued under the Acts.301 Furthermore, the
District Collector or any officer authorised by him in this behalf may
at any time order the finger and palm impressions, foot-prints and
photographs of any registered offender to be taken.302 Several of

297 Ibid
298 Ibid, p. 100
299 Tamil Nadu Restriction of Habitual Offenders Act, 1948 (previously Restriction of Habitual Offenders
Act1948); Madhya Bharat Vagrants, Habitual Offenders and Criminals (Restrictions and Settlement) Act,
1952; Orissa Restriction of Habitual Offenders Act, 1952; Uttar Pradesh Habitual Offenders Act, 1952;
Rajasthan Habitual Offenders Act, 1953; Jammu and Kashmir Habitual Offenders (Control and Reform)
Act, 1956; Bombay Habitual Offenders Act, 1959; Gujarat Habitual Offenders Act, 1959; Kerala Habitual
Offenders Act, 1960; Karnataka Habitual Offenders Act, 1961; Andhra Pradesh Habitual Offenders Act,
1962; Himachal Pradesh Habitual Offenders Act, 1969; Goa, Daman and Diu Habitual Offenders Act,
1976;
300 Ibid
301 Section 19, Andhra Pradesh Habitual Offenders Act, 1962; Section 15, Tamil Nadu Habitual Offenders
Act, 1948; Section 22, Goa, Daman and Diu Habitual Offenders Act, 1976; Section 22, Gujarat Habitual
Offenders Act, 1959; Section 22, Bombay Habitual Offenders Act, 1959; Section 21, Himachal Pradesh
Habitual Offenders Act, 1969; Section 23, Jammu and Kashmir Habitual Offenders (Control and Reform)
Act, 1956; Section 18, Karnataka Habitual Offenders Act, 1961; Section 18, Kerala Habitual Offenders
Act, 1960; Section 12, Orissa Restriction of Habitual Offenders Act, 1952; Section 14, Rajasthan Habitual
Offenders Act, 1953
302 Section 6, Andhra Pradesh Habitual Offenders Act, 1962; Section 6, Goa, Daman and Diu Habitual
Offenders Act, 1976; Section 6, Gujarat Habitual Offenders Act, 1959; Section 6, Bombay Habitual
Offenders Act, 1959; Section 6, Himachal Pradesh Habitual Offenders Act, 1969; Section 9, Jammu and
Kashmir Habitual Offenders (Control and Reform) Act, 1956; Section 6, Karnataka Habitual Offenders
Act, 1961; Section 6, Kerala Habitual Offenders Act, 1960; Section 4, Rajasthan Habitual Offenders Act,
1953;
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these Acts require the notified offenders to share their residential
details, and may also restrict their movements.
218. The “habitual offender” legislations were enacted to replace the
Criminal Tribes Act. However, in States such as Rajasthan, they
were used to refer to members belonging to criminal tribes/denotified
tribes. Applying that logic, several Prison Manuals/Rules have also
referred to “habitual offender” to mean members of Denotified Tribes
or wandering tribes. This cannot be accepted. A whole community
ought not to have either been declared a criminal tribe in the past
or a habitual offender in the present. It would not be wrong to say
that the classification of “habitual offender” has been used to target
members of Denotified Tribes.
219. Various habitual offender laws enacted by States are not under
challenge before us in the present. Hence, we shall not deal with
their validity. However, the classification is constitutionally suspect,
given the vague and broad language various laws and rules have
employed, which is used to target the members of Denotified
Tribes. The Criminal Tribes Enquiry Committee had noted that no
person can be declared as a habitual offender merely on ground
of suspicion. But the same has happened, as the vague language
employed leaves the discretion for the authorities to declare persons
as habitual offenders merely on the ground of suspicion. We urge
the State governments to reconsider the usage of various habitual
offender laws, i.e. whether such laws are needed in a constitutional
system. In the meantime, the definition of “habitual offender” in
the prison manuals/rules shall be in accordance with the definition
provided in the habitual offender legislation enacted by the respective
State legislature, subject to any constitutional challenge against
such legislation in the future. In case, there is no habitual offender
legislation in the State, the references to habitual offenders directly
or indirectly, as discussed in this judgment, are struck down as
unconstitutional. The Union and the State governments are directed
to make necessary changes in the prison manuals/rules in line with
this judgment.
XVIII. The Role of Legal Service Authorities in Prisons
220. In order to ensure that the fundamental rights of prisoners are
not violated, the role of legal services authorities is crucial. The
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importance of free legal aid has been emphasized by this Court in
several judgments.
(i) Right to Free Legal Aid
221. The Court, in Hussainara Khatoon v. Home Secretary, State of
Bihar, recognized the “right to free legal services” as “an essential
ingredient” of “reasonable, fair and just” procedure under Article 21
for a person accused of an offence.303 It is “a constitutional right of
every accused person who is unable to engage a lawyer and secure
legal services on account of reasons such as poverty, indigence
or incommunicado situation”.304 Later, in Sheela Barse v. State of
Maharashtra,305 regarding the plight of women prisoners in the jails
of Maharashtra, the Court, while emphasizing free legal assistance,
expressed its concern on “the helpless condition of a prisoner who
is lodged in a jail who does not know to whom he can turn for help
in order to vindicate his innocence or defend, his constitutional or
legal rights or to protect himself against torture and ill-treatment or
oppression and harassment at the hands of his custodians”.
222. The Court declared in Mohd. Hussain v. The State (Govt. of NCT)
Delhi306 that Article 39A “casts duty on the State to ensure that justice
is not denied by reason of economic or other disabilities in the legal
system and to provide free legal aid to every citizen with economic
or other disabilities”. In Mohammed Ajmal Mohammad Amir Kasab
@ Abu Mujahid v. State Of Maharashtra,307 the Court held that the
right to access to legal aid “flows from Articles 21 and 22(1) of the
Constitution and needs to be strictly enforced”. The Court directed
all the magistrates in the country to inform a person accused of
committing a cognizable offence produced before their court, that it
is his right to consult and be defended by a legal practitioner and,
in case he has no means to engage a lawyer of his choice, that
one would be provided to him from legal aid at the expense of the
State. The Court clarified that “any failure to fully discharge the duty

303 Hussainara Khatoon v. Home Secretary, State of Bihar [1979] 3 SCR
304 Ibid
305 Sheela Barse v. State of Maharashtra, 1983 INSC 9
306 AIR 2012 SC 750
307 [2012] 8 SCR 295 : 2012 INSC 357
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would amount to dereliction in duty and would make the concerned
magistrate liable to departmental proceeding”.
(ii) Inspection by Legal Services Authorities
223. Section 12 of the Legal Services Authorities Act, 1987, provides
that all “persons in custody” are entitled to free legal aid. In 2015,
NALSA wrote a letter to all State Legal Services Authorities (SLSAs)
to constitute a prison legal aid clinic (PLAC) in every prison under
their jurisdiction.308 To further strengthen the functioning of PLACs,
NALSA formulated the Standard Operating Procedures (SOP) on
Access to Legal Aid Services to Prisoners and Functioning of the
Prison Legal Aid Clinics, 2022.
224. Under this SOP, there are provisions for two types of inspection
visits to the prisons. One shall be undertaken by the secretary of the
DLSA, and the other is to be done by the chairperson of the DLSA,
i.e., the district and sessions judge:
“4. Monitoring of functioning of PLAC by DLSA
4.1 Periodicity of visits by DLSA Secretary: DLSA Secretary
will visit and inspect the Prison Legal Aid Clinics at least
once a month.
4.2 Role of the DLSA Secretary during prison visits: The
following is the role:
a) To ensure that legal aid lawyers have
been appointed to represent all undertrials.
In circumstances where any prisoner is found
without legal representation during the visit by
the DLSA, immediate steps to be taken towards
ensuring appointment.
b) To verify whether panel lawyers are meeting
and interacting with prisoners including legal
aid beneficiaries. In circumstances where panel
lawyers are not interacting and communicating

308 NALSA Standard Operating Procedures on Access to Legal Aid Services to Prisoners and Functioning
of the Prison Legal Aid Clinics, 2022, https://nalsa.gov.in/acts-rules/guidelines/nalsa-sop-functioning-of-
prison-legal-aid-clinics-2022
[2024] 10 S.C.R. 631

Sukanya Shantha v. Union of India & Ors.

with the prisoners, the lawyer must be called
to understand the concern and best respond
to it. If need be, where deemed appropriate
by the Secretary, DLSA, the concern lawyer
may be removed from the panel, and a fresh
appointment initiated.
c) To check the prison conditions with respect to
health, sanitation, food and hygiene in addition
to access to legal representation. If any such
concerns are raised, the same shall be shared
with the Chairman of the DLSA, Member
Secretary of SLSA as well as the Board of
Visitors who have the authority to raise it to the
appropriate authority.
d) To track whether there are any instances of
non-production at court hearings, be it physical
or virtual. If such instances are reported, take
immediate steps to rectify such misgivings.
e) To ensure that concerns of vulnerable
category of prisoners are heard and responded
to.
f) To ensure and check the documentation and
reporting practices of the Clinic.
g) To ensure that the PLVs and JVLs are able to
perform their duties effectively, and have access
to the prison at all times. They should ensure
that no unnecessary hindrances are set forward
from the prison officers, which may create hurdle
in working of the PLAC.
4.3 Periodicity of visits by the Chairman, DLSA (District &
Sessions Judge): The Chairman, DLSA (District & Sessions
Judge) shall visit the Prison Legal Aid Clinics at least
once in three months. He would also visit the premises of
the prison to understand any concerns regarding prison
conditions, and also enquire into the functioning of the
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PLAC. They may also interact with prisoners to received
feedback for services provided.
4.4 Role of the Chairman, DLSA during prison visits: The
Chairman DLSA would undertake to inspect the condition
of the prisons, communicate with the inmates to understand
their concerns with respect to their regimen, food, sanitation
hygiene etc. in addition to access to legal representation.
In circumstances where concerns are raised, the same
may be raised in the meetings with the Secretary, DLSA
to take measures to combat them. Specialized formats
for documentation of prison visits by the Chairman may
be prepared by the SLSA.”309
The inspections have to be undertaken every month by the Secretary,
DLSA, and quarterly by the Chairperson, DLSA. During these
inspections, the authority inspecting is supposed to look at the overall
condition of the prisons.
225. Apart from this, a Board of Visitors is constituted, as per the Model
Prison Manual 2016, at a district level. The Board comprises of:
“29.03 The Board of Visitors shall comprise the following
official members:
a) The District Judge at the District level, or the Sub-
Divisional Judicial Magistrate exercising Jurisdiction, at
Sub-Division level
b) The District Magistrate, at the District level or Sub-
Divisional officer at Sub- Divisional level
c) District Superintendent of Police
d) The Chief Medical Officer of the Health Department,
at the District level or the Sub-Divisional Medical Officer
at Sub-Division level
e) The Executive Engineer, PWD at the District level, or
Assistant Engineer PWD at Sub-Divisional level

309 Rule 4, NALSA Standard Operating Procedures on Access to Legal Aid Services to Prisoners and
Functioning of the Prison Legal Aid Clinics, 2022, https://nalsa.gov.in/acts-rules/guidelines/nalsa-sop-
functioning-of-prison-legal-aid-clinics-2022
[2024] 10 S.C.R. 633

Sukanya Shantha v. Union of India & Ors.

f) The District Education Officer dealing with literacy
programmes.
g) District Social Welfare Officer
h) District Employment Officer
i) District Agricultural Officer
j) District Industrial Officer
The Board shall make at least one visit per quarter and
for this purpose, presence of three members and the
chairman shall constitute quorum.
29.04 The Board of Visitors shall also comprise the
following Non-Official Members:-
a) Three Members of the Legislative Assembly of the state
of which one should be a woman.
b) A nominee of the State Human Rights Commission
c) Two social workers of the District/Sub-Division; one
of them shall be a woman having an interest in the
administration of prisons and welfare of prisoners.
29.05 The District Judge shall be the Chairman of the
Board of visitors at District level and the Sub-Divisional
Judicial Magistrate shall be the Chairman at Sub-Division
level. The Non-official visitors after their appointment must
be sensitised and trained about their duties, roles and
responsibilities.”
226. The duties of the Board have been provided as follows:
“29.22 All Visitors, official and non-official, at every visit
shall:
(a) examine the cooked food;
(b) inspect the barracks, wards, work-sheds and other
buildings of the prison generally;
(c) ascertain whether considerations of health, cleanliness
and security are attended to, whether proper management
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and discipline is maintained in every respect and whether
any prisoner is illegally detained, or is detained for undue
length of time while awaiting trial;
(d) examine prison registers and records, except secret
records and records pertaining to accounts;
(e) hear and attend to all representation and petitions
made by or on behalf of the prisoners;
(f) direct, if deemed advisable, that any such representation
or petition be forwarded to the Government;
(g) suggest new avenues for improvement in correctional
work.”310
The comments of the Board of Visitors are recorded in the visitors’
book of the prison and are forwarded to the Inspector General (IG)
of Prisons. Any action on the comments is at the discretion of the
IG Prisons.
227. The Model Prisons and Correctional Services Act, 2023 also
envisages inspection of prisons, including by a Board of Visitors
headed by the district judge/additional district judge/sub-divisional
judicial magistrate.311 It also includes the provision for “free legal
aid to the prisoners in accordance with the provisions of the Legal
Services Authorities Act, 1987” and the relevant standard operating
procedure.312
XIX. The Future of Substantive Equality & Institutional
Discrimination
228. What does the future hold for India? Dr Ambedkar had expressed this
concern in his last address to the Constituent Assembly. The concern
holds true even today. More than 75 years since independence, we
have not been able to eradicate the evil of caste discrimination. We
need to have a national vision for justice and equality, which involves
all citizens. As Jamal Greene noted:

310 Rule 29.22, Model Prison Manual, 2016.
311 Section 54
312 Section 56
[2024] 10 S.C.R. 635

Sukanya Shantha v. Union of India & Ors.

“There is also such a thing as rights. Those individual
people and families have hopes and fears that matter
but that conflict with the fears and hopes of their fellow
human beings. Their aspirations and worries don’t depend
on what Framers believed, or how Madison phrased
the Bill of Rights, or whether some judicial opinion says
“strict scrutiny” applies to a case. They depend on what
people’s expectations are, how they are treated by
others, and why. We are bound to experience the rights
we have differently than anyone else does—this is what
makes them ours. The central challenge for any system
of justice has always been that we dream alone but we
live together.”313
Therefore, we need real and quick steps to identify the instances
of existing inequalities and injustices in our society. Words, without
action, would mean nothing for the oppressed. As Paulo Freire noted
in the “Pedagogy of the Oppressed”:
“The oppressor is solidary with the oppressed only when he
stops regarding the oppressed as an abstract category and
sees them as persons who have been unjustly dealt with,
deprived of their voice, cheated in the sale of their labor—
when he stops making pious, sentimental, and individualistic
gestures and risks an act of love. True solidarity is found
only in the plenitude of this act of love, in its existentiality, in
the praxis. To affirm that men and women are persons and
as persons should be free, and yet to do nothing tangible
to make this affirmative a reality, is a farce.”314
We need a compassionate approach, as Alan Paton had described:
“It is my own belief that the only power which can resist the
power of fear is the power of love. It’s a weak thing and a
tender thing; men despise and deride it. But I look for the
day when […] we shall realize that the only lasting and

313 Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart,
Mariner Books, 2022, p. 248
314 Paulo Freire, Pedagogy of the Oppressed (translated by Myra Bergman Ramos), Penguin 2017, p. 24
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worth-while solution of our grave and profound problems
lies not in the use of power, but in that understanding and
compassion without which human life is an intolerable
bondage, condemning us all to an existence of violence,
misery and fear.”315
229. We need an institutional approach where people from marginalized
communities could share their pain and anguish about their future
collectively.316 We need to reflect and do away with institutional
practices, which discriminate against citizens from marginalized
communities or treat them without empathy. We need to identify
systemic discrimination in all spaces by observing patterns of
exclusion. After all, the “bounds of caste are made of steel”–
“Sometimes invisible but almost always inextricable”.317 But not so
strong that they cannot be broken with the power of the Constitution.
230. This petition highlighted an instance of institutional systemic
discrimination. We appreciate the assistance provided by the lawyers
in dealing with the issue.
XX. Conclusion and Directions
231. In light of the discussion, we issue the following directions:
(i) The impugned provisions are declared unconstitutional for being
violative of Articles 14, 15, 17, 21, and 23 of the Constitution.
All States and Union Territories are directed to revise their
Prison Manuals/Rules in accordance with this judgment within
a period of three months;
(ii) The Union government is directed to make necessary changes,
as highlighted in this judgment, to address caste-based
discrimination in the Model Prison Manual 2016 and the Model
Prisons and Correctional Services Act 2023 within a period of
three months;
(iii) References to “habitual offenders” in the prison manuals/Model

315 Alan Paton, Cry, The Beloved Country, Vintage Books, 2002
316 Bell Hooks, Salvation: black people and love, Harper Perennial, 2001; pp. 214-15
317 Nusrat F. Jafri, This Land We Call Home: The Story of a Family, Caste, Conversions and Modern India,
Penguin (2024), p. xv
[2024] 10 S.C.R. 637

Sukanya Shantha v. Union of India & Ors.

Prison Manual shall be in accordance with the definition provided
in the habitual offender legislation enacted by the respective
State legislatures, subject to any constitutional challenge against
such legislation in the future. All other references or definitions
of “habitual offenders” in the impugned prison manuals/rules are
declared unconstitutional. In case, there is no habitual offender
legislation in the State, the Union and the State governments
are directed to make necessary changes in the manuals/rules
in line with this judgment, within a period of three months;
(iv) The “caste” column and any references to caste in undertrial
and/or convicts’ prisoners’ registers inside the prisons shall be
deleted;
(v) The Police is directed to follow the guidelines issued in Arnesh
Kumar v. State of Bihar (2014) and Amanatullah Khan v. The
Commissioner of Police, Delhi (2024) to ensure that members
of Denotified Tribes are not subjected to arbitrary arrest;
(vi) This Court takes suo motu cognizance of the discrimination
inside prisons on any ground such as caste, gender,
disability, and shall list the case from now onwards as In
Re: Discrimination Inside Prisons in India. The Registry is
directed to list the case after a period of three months before
an appropriate Bench;
(vii) On the first date of hearing of the above suo motu petition, all
States and the Union government shall file a compliance report
on this judgment;
(viii) The DLSAs and the Board of Visitors formed under the Model
Prison Manual 2016 shall jointly conduct regular inspections
to identify whether caste-based discrimination or similar
discriminatory practices, as highlighted in this judgment, are
still taking place inside prisons. The DLSAs and the Board
of Visitors shall submit a joint report of their inspection to the
SLSAs, which shall compile a common report and forward it
to NALSA, which shall in turn file a joint status report before
this Court in the above-mentioned suo motu writ petition; and
(ix) The Union government is directed to circulate a copy of this
judgment to the Chief Secretaries of all States and Union
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territories within a period of three weeks from the date of
delivery of this judgment.
232. The writ petition is disposed of.
233. Pending application(s), if any, stand disposed of.

Result of the Case: Writ Petition disposed of.

†
Headnotes prepared by: Nidhi Jain