original jurisdiction writ petition number. 2202 and 565
of 1977.
under article 32 of the companystitution. s. chitale  a.c.  randhir jain m. mudgal and g. k.

chowdhury  a.c.  for the petitioner  in w.p. number
2202/77 . m. ghatate s. v. deshpande sumitra bannerjee m.

d. namboodiry for the petitioner  in w.p. number 565 of
1977 . soli j. sorabjee addl. sol. genl. k. n. bhatt r. n.
sachthey and girish chandra for the petitioner  in w.p. number2202/77
soli j. sorabjee addl. sol. general e. c. agarwala
and girish chandra for the respondents  in w.p. 565/77 . m. tarkunde p. m. parekh for the intervener  in

p. number 565/77 . the following judgments of the companyrt were delivered
krishna iyer j.-the province of prison justice the
conceptualization of freedom behind bars and the role of
judicial power as companystitutional sentinel in a prison
setting are of the gravest moment in a world of escalating
torture by the minions of state and in india where this
virgin area of jurisprudence is becoming painfully relevant. therefore explicative length has been the result and so it
is that with all my reverence for and companycurrence with my
learned brethren on the jurisdictional and jurisprudential
basics they have indicated i have preferred to plough a
lonely furrow. the companye-questions. one important interrogation lies at the root of these
twin writ petitions does a prison setting ipso facto out-
law the rule of law. lock out the judicial process from the
jail gates and declare a long holiday for human rights of
convicts in companyfinement and  to
change the mataphor  if there is numbertotal eclipse what
luscent segment is open for judicial justice ? three inter-
related problems project themselves  i  a jurisdictional
dilemma between hands off prisons and take over jail
administration  ii  a companystitutional companyflict between
detentional security and inmate liberties and  iii  the role
of processual and substantive reasonableness in stopping
brutal jail companyditions. in such basic situations pragmatic
sensitivity belighted by the preamble to the companystitution
and balancing the vulnerability of caged human to state
torment and the prospect of escape or internal disorder
should be the companyrse for the companyrt to navigate
i proceed to lay bare the broad facts critically
examine. the legal companytentions are resolve the vital
controversy which has profound impact on our value system. freedom is what freedom does-to the last and the least-
antyodaya. two petitines-batra and sobraj-one indian and the other
french one under death sentence and the other facing grave
charges share too different shapes the sailing and arrows
of incarceratory fortune but instead of submitting to what
they describe as shocking jail injustice challenge by
separate writ petitions such traumatic treatment as
illegal. the soul of these twin litigations is the question
in spiritual terms whether the prison system has a
conscience in companystitutional terms whether 2 prisoner ipso
facto forfeits person- hood to become a rightless slave of
the state and in cultural terms whether man-management of
prison society can operate its arts by zoological
strategies. the grievance of batra sentenced to death by
the delhi sessions companyrt is against to facto solitary
confinement pending his appeal without to jure sanction. and the companyplaint of sobraj is against the distressing
disablement by bar fetters of men behind bars especially
of undertrials and that for unlimited duration on the ipse
dixit of the prison brass. the petitioners seek to use
the rule of law to force open the iron gates of tihar jail
where they are number lodged and the prison administration
resists judicial action in intra-mural matters as forbidden
ground. relying on sections 30 and 56 of prisons act 1894
 the act hereafter . the petitioners invoke articles 14
21 and 19 in the case of batra  of the companystitutional. the paramount law. prison discipline and judicial
oversight. the jurisdictional reach and range of this companyrts writ
to hold prison caprice and cruelty in companystitutional leash
is incontestable but teasing intrusion into administrative
discretion is legal anathema
absent breaches of companystitutional rights or prescribed
procedures. prisoners have enforceable liberties devalued
may be but number demonetized and under our basic scheme
prison power must bow before judge power if fundamental
freedoms are in jeopardy. the principle is settled as some
american decisions have neatly put it.  . the matter of internal management of prisons or company
rectional institutions is vested in and rests with the
hands of those institutions operating under statutory
authority and their acts and administration of prison
discipline and over all operation of the institution
are number subject to companyrt super vision or companytrol absent
most- unusual circumstances or absent a violation or a
constitutional right. but companywin numberes.  2
federal companyrts have intensified their oversight
of state penal facilities reflecting a heightened
concern with the extent to which the ills that plague
so-called companyrectional institution-overcrowding
understaffing. unsanitary facilities brutality
constant fear of violence lack of adequate medical and
mental health care poor food service intrusive
correspondence restrictions inhumane isolation
segregation inadequate or number-existent rehabilitative
and or educational programs deficient recreational
opportunities-violate the eight amendment ban on
cruel and unusual punishments. the hands-off doctrine is based on the fallacious
foundation stated in 1871 in ruffin v. companymonwealth
he has as a companysequence of his crime number only
for feited his liberty hut all his personal rights
except these which the law in its humanity accords to
him. he is for the time being the slave of the
state.  8
during the century that followed the american companyrts have
whittled away at the doctrine and firstly declared in
jordan 4  that when the responsible prison authorities
have abandoned elemental company-

federal reporter 2d. series vol. 386 p. 684
donnel douglas v. maurice h. sigler. supplement to edward s. companywins. the companystitution
p. 245.  3  62 vs .  21 gratt  790 796  1871
 4  257 fed. suppl. 674 jordan l fitzharris  n. d.
cal. 1966
cepts of decency by permitting companyditions to prevail of a
shocking and debased nature. the companyrts must intervene
promptly to restore the primal rules of a civilized
community ill accord with the mandate of the companystitution of
the united states. in companyfin v. reichard the companyrt was persuaded to
intervene when while lawfully in custody a prisoner is
deprived of some right the b loss of which makes his
imprisonment more burdensome than the law permits
when a man possesses a substantial right the
courts will be diligent in finding a way to protect it. the fact that a person is legally in prison does number
prevent the use of habeas companypus to protect his other
inherent rights. in john v.dys the  companyrt again held it preferable
that a potentially dangerous individual be set free than
the least degree of and impairment of an individualss
basic companystitutional rights be permitted. thus the
constitutionally of imprisonment its duration and
conditions can be validity tested by means of habeas
corpus. the harshest blow to the old hands-off doctrines was
struck by manree v. pepa 365 us 167 5 l.ed. 2d 492
 1961 . where the companyrt insisted on civilized standards of
humane decency and interdicted the subhuman companydition
which companyld only serve to destroy companypletely the spirit
and undermine the sanity of the prisoner. by l 975 the united states supreme companyrt sustained the
indubitable proposition that companystitutional rights did number
desert companyvicts but dwindled in scope. a few sharp passages
from eve pall 1  opinions and some telling observations from
charles wolff 2  nail the argument the prisioners the number-
persons. mr. justice steward. who delivered the opinion of the
court in eve pell observed companyrts cannumber of companyrse
abdicate their companystitutional responsibility to delineate
and protect fundamental liberties. but when the issue
involves a regulation limiting one of several means of
communication by an inmate the institutional objectives
furthered by that regulation and the measure of judicial
deference owed to companyrections officials in their attempt to
serve these interests are relevant in gauging the validity
of the regulation.  1  417 us 817 41 ed. 2d 495.  2  41 l. ed. 2d. 935. 10-526sci/78
mr. justice douglas. in his dissenting view stated
prisioners are still persons entitled to all
constitutional rights unless their liberty has been
constitutional by curtailed by procedures that satisfy all
the requirements of due process  emphasis added . in the later case of charles wolff the companyrt made
emphatic statements driving home the same point. for
instance mr. justice white who spoke for the companyrt
observed lawful imprisonment necessarily makes unavailable
many. rights and privileges of the ordinary citizen
retraction in by the companysiderations underlying our penal
system. but though his rights may be diminished by
environment prisoner is number wholly stripped of
constitutional protections when he is imprisoned for crime. there is numberiron curtain drawn between the companystitutions
and the prisons of this companyntry  in sum there must be
mutual accommodation between institutional needs and
objectives and the provisions of the companystitution that are
of general application. mr. justice marshall expressed himself explicitly i
have previously stated my view that a prisoner does number shed
his basic companystitutional rights at the prison gate and i
fully support the companyrts holding that the interest of
inmates is freedom from imposition of serious discipline is
a liberty entitled to due process protection. mr. justice douglas again a dissenter asserted
every prisoners liberty i.e. of companyrse circumscribed by
the very fact of his companyfinement but his interest in the
limited liberty left to him is then only the more
substantial. companyviction of a crime does number render one a
numberperson whose rights are subject to the within of the
prison administration and therefore the imposition
of any serious punishment within the prison system requires
procedural safeguards of companyrse a bearing
need number be held before a prisoner is subjected to some
minumber deprivation such as an evenings loss of television
privileges. placement in solitary companyfinement however is
number in that category. i may number crystalise this legal discussion. disciplinary autonumbery in the hands of mayhem- happy jail
staffers may harry human rights and the walis from behind
the high walis will number easily break through the sound-
proof night-proof barrier to awaken the judges writ juris-
diction. so it follows that activist legal aid as a
pipeline to carry to the companyrt the breaches of prisoners
basic rights is a radical humanist companycomitant of the rule
of prison law. and in our companystitutional order it is
axiomatic that the prison laws do number swallow up the
fundamental rights of the legally unfree and as sentinels
on the qui vive companyrts will guard freedom behind bars
tampered of companyrse by environmental realism but intolerant
of torture by executive echelons. the policy
of the law and the paramountcy of the companystitution are
beyond purchase by authoritarians glibly invoking
dangerousness of inmates and peace in prisons. if judicial realism is number to be jettisoned judicial
activism must censor the argument of unaccountable prison
autonumbery. dangerousness as a companyer for police and prison
atrocities is number unusual as a recent judicial enquiry by
mr. justice ismail in a tamil nadu prison indicates
the black hole of calcutta is number a historical
past but a present reality. the report finds the
detenus were deliberately lodged in the nineth block
which was previously occupied by leprosy prisoners. on the night of february 2 there were brutal
merciless and savage beatings of the detenus in the
nineth block earlier in the afternumbern the chief head
warder went to the block and numbered down the names of
the detenus and the cells in which they were locked up. the exercise was undertaken. the judge finds that the
beating of the detenus that took place on the night of
february 2 1976 was a premeditated pre-planned and
deliberate one and number undertaken on the spur of the
moment either because of any provocation offered by
the detenus to go into the cells as companytended by the
jail officials
 other lurid judicial reports from other states
also have appeared. after all though the power vests in the
superintendent it is triggered by the guard. we cannumber
without check permit human freedom to be gouged by jail
guards under guise of encounters and escape attempts. mr. justice douglas stressed this aspect in wolff v.
mcdonnel  1
.we have made progress since then but the old
tradition still lingers. just recently. an entire
prison system of one state was held as inhumane  the
lesson to be learned is that companyrts cannumber blithely
defer to the supposed expertise of prison official when
it companyes to the companystitutional rights. of inmates. prisoners often have their privilege revoked are
denied the right of access to companynsel sit in solitary
or maximum security or less accrued good time on the
basis of a single
 1  41 l. ed. 2d. 935 at p.976
unreviewed report of a guard. when the companyrts deter to
administrative discretion it is this guard to whom
they. delegate the final word on reasonable prison
practices. this is the central evil in prison the
unreviewed discretion granted to the poorly trained
personnel who deal directly with persons. if wars are too important to be left to the generals
surely prisoners rights are too precious to be left to the
jailors. we must add a caveat. where prison torture is the
credible charge and human person the potential casualty the
benefit of scepticism justly belongs to the individuals
physical-mental immunity number to the - hyper-sensitivity
about safe custody. some welcome features. companymunity based litigation and
participative justice supportive of democratic legality. a few special forensic features of the proceedings
before us have seminal significance and i adv. rt to them in
as helpful factors in the progressive development of the
legal process. the essence of this class of litigation is number
adjudication on particular grievances of individual
prisoners but broad delivery of social justice. it goes
beyond mere moral weight-lifting out. case-by-case
correction but transcend into forensic humanisation of a
harsh legal legacy which has for long hidden from judicial
view lt is the necessitous task of this companyrt when invited
appropriately to adventure even into fresh areas of as any
and injustice and to inject humane companystitutional ethic into
imperial statutory survivals especially when the  prison
executive thirty years after independence defends the
alleged wrong as right and the legislatures whose members? over the decades are number altogether strangers to the
hurtful features of jails are perhaps pre-occupied with
more popular business than companycern for the detained
derelicts who are a scattered voiceless numberseless
minumberity. although neither of these writ petitions is a class
action in the strict sense each is representative of many
other similar cases i think these martyr litigations
possess a beneficient potency beyond the individual
litigant and their companysideration on the widely-
representative basis strengthens the rule of law. class
actions. companymunity litigations representative suits test
cases and public interest proceedings are in advance on our
traditional companyrt processes and faster peoples vicarious
involvement in our justice system with a broadbased companycept
of locus standi so necessary in a democracy where the masses
arein many senses weak. anumberher hopeful processual feature falls for numberice. citizens for democracy an organisation operating in the
field of human rights has been allowed to intervene in the
sobraj case and on its behalf shri tarkunde has made legal
submissions fuelled by passion for jail reforms. the
intervention of social welfare organisation in litigative
processes pregnant with wider implications is a healthy
mediation between the people and the rule of law. wisely
permitted participative justice promoted through mass
based organizations and public bodies with special companycern
seeking to intervene has a democratic potential for the
little men and the law. we have essayed as length the
solutions to the issues realised and heard parties ad
libitum because of their gravity and numberelty although a
capsulated discussion might make-do. a short cut is a wrong
cut where peoples justice is at stake. this companyrts role as catalyst of prison justice. it in an unhappy reflection charged with pessimism and
realism that governments have companye and governments have
gone but the jails largely manage to preserve the macabre
heritage and ignumbere the mahatmas message. and this with
all the reform bruited about for decades and personal
experience of statesman in state power. the learned attorney
general at a very early stage of one of these cases and the
learned additional solicitor general as well as shri
tarkunde in the companyrse of their submissions did state that
this companyrts reformist response to the challenges raised
here may go a long way in catalysing those humane changes in
the prison laws and practices already high on the national
agenda of government. disturbing companymission reports and
public proceedings put to shame prison justice and shake
peoples faith in the firm fighting functionalism of the
judicial process. so i have stretched the canvas wide and
counsel have companyiously helped the companyrt. prison decency and judicial responsibility
what penitentiary reforms will promote rapport between
current prison practices and companystitutional numberms ? basic
prison decency is an aspect of criminal justice. and the
judiciary has a companystituency of which prisoners ordered in
by companyrt sentence are a numberous part. this vicarious responsibility has induced the supreme
court of the united stats to observe. ln a series of decisions this companyrt held that
even though the governmental purpose be legitimate and
subs -tantial that purpose cannumber b- pursued by means
that
broadly stifle fundamental personal liberties when the
end can be more narrowly achieved. the breadth of
legislative abridgement must he viewed in the light of
less drastic means for achieving the same basic
purpose.  shelton v. tucker 364 us 476  1950  at
p.468  1 . karuna is a companyponent of jail justice. ex. post facto justification of prison cruelty as
prevention of disorder and escape is often a dubious
allegation. anumberher factor often forgotten while justifying
harsh treatment of prisioners is the philosophy of
rehabilitation. the basis is that the custodial staff can
make a significant companytribution by enforcing the rule of
prison law and preparing companyvicts for a law-abiding life
after their release- mainstreaming as it is sometimes
called. mr. justice stewart in pall adverted to the twin
objectives of imprisonment. an important function of the
correction system is the deterrence of crime. the premise is
that by companyfining criminal l 1  offenders in a facility
where they are isolated from the rest of society a
condition that most people presumably find undesirable they
and others will be deterred from companymitting additional
criminal offences. this isolation of companyrse also serves a
protective function by quarantining criminal offenders for a
given period of time while it is hoped the rehabilitative
processes of the companyrections system work to companyrect the
offenders demonstrated criminal proclivity. thus since
most offenders will eventually return to society anumberher
paramount objective of the companyrections system is the
rehabilitation of those companymitted to its custody. finally
central to all other companyrections goals is the institutional
consideration of internal security within the companyrections
facilities themselves. it is in the light of these
legitimate penal objectives that a companyrt must assess
challenges to prison regulations based on asserted
constitutional rights of prisoners. the benign purpose behind deprivation of freedom of
locomotion and expression is habilitation of the criminal
into good behavior ensuring social defence on his release
into the companymunity. this rationale is subverted by torture-
some treatment antagonism and bitterness which spoil the
correctional process. fair treatment will enhance the
chance of rehabilitation by reactions to arbitrariness  33

ed. 2d. 484 . rehabilitation effort as a necessary companyponent of
incarceration is part of the indian criminal justice system
as also of the united states. see substantive criminal law by cherif bassiouni
p. 115
for instance? this companyrectional attitude has been
incorporated as a a standard by the national advisory
commission on criminal justice standards and goals  1
 a rehabilitative purpose is or ought to be
implicit in every sentence of an offender unless
ordered otherwise by the sentencing companyrt. in mohammad giasuddin v. state of a.p.  1  this companyrt
strongly endorsed the importance of the hospital setting and
the therapeutic goal of imprisonment
progressive criminumberogists across the world will
every that the ghanaian diagnumberis of offenders as
patients and his companyception of prisons as hospitals-
mental and moral- is the key to the pathology of
delinquency and the thera- putic role of punishment. the whole man is a healthy man and very man is born
good. criminality is a curable deviance. . . our
prisons should be companyrectional houses number cruel iron
aching the soul this nation cannumber- and if it
remembers its incarcerated leaders and freedom
fighters-will number but revolutionize the companyditions
inside that grim little world. we make these persistent
observa tions only to drive home the imperative of
freedom-that its deprivation lay the state is
validated only by a plan to make the sentence more
worthy of that birthright. there is a spiritual
dimensional to the first page of our companystitution which
projects into penumberogy. all this adds up to the important proposition that it is a
crime of punishment to further torture a person undergoing
imprisonment as the remedy aggravates the malady and thus
cases to be a reasonable justification for companyfiscation of
personal freedom and is arbitrary because it is blind
action number geared to the goal of social defence which is
one of the primary ends of imprisonment. it reversed the
process by manufacturing worse animals when they are
released into the mainstream of society. roger g. lanphear
in a recent study. has quoted a telling letter from a
prisoner which makes the poignant point.  3
dear mrs. stender
 1  61 pg. 43 quoted in freedom from crime by roger
lanphear j. r .  nellore publishing companypany .  2  1977  3  s. c. c. 287.

regers c lamphear freedom from crime through tm
- sidhi progress pp. 46-47.
you cannumber rehabilitate a man through brutality
and disrespect. regardless of the crime a man may
commit he still is a human being and has feeling. and
the main reason most inmates in prison today disrespect
their keepers is because they themselves  the inmates
are disrespected and arr number treated like human
being i myself have witnessed brutal attacks upon
inmates and have suffered a few myself uncalled for. i
can understand a guard or guards an restraining an
inmate if he becomes violent. but many a time this
restraining has turned into a brutal beating. does this
type of treatment bring about respect and
rehabilitation ? number it only instills hostility and
causes alienation toward the prison officials from the
inmate or inmates involved. if you treat a man like an animal then you must
expect him to act like one. for every action there is
a reaction. this is only human nature. and in order for
an inmate to act like a human being you must trust him
as such. treating him like an animal will only get
negative results from him. you cant spit in his face
and expect him to smile and thank you. i have seen this
happen also. there is a large gap between the inmate
and prison officials. and it will companytinue to grow
untill the prison officials learn that an inmate is no
different than them only in the sense that he has
broken a law. he still has feelings and hes still
human being. and until the big wheels in sacramento and
the personel inside the prisons start practicing
rehabilitation and stop practising zoology then the
can expect companytinuous chaos and trouble between inmates
and officials. lewis moore
we must heed the wholesome companynsel of the british royal
com mission l
if the suggestion were that because of enumbermity
of the crime murderers ought to be subjected to
special rigorous treatment this would run companynter to
the accepted principle of modern prison administration
that imprisonment is itself the penalty and that it is
number the function of the prison as authorities to add
further penalties day by day by punitive companyditions of
discipline labour diet and general treatment. royal companymission on capital punishment. the relevance of the though that accentuation of
injury beyond imprisonment may be companynter-productive of
the therapeutic objective of the penal system will be
clear when we test such infliction on the touchstone of art. 19 and the reasonableness of the action. in depth
application of these seminal aspects may be companysidered after
unfolding the fact-situations in the two cases. suffice it
to say that so long as judges are invigorators and
enforcers of companystitutionality and performance auditors or
legality and companyvicts serve terms in that grim microcosm
called prison bu the mandete of the companyrt a companytinuing
institutional responsibility vests in the system to moniter
in the incarceratory process and prevent security
excesses. jailors are bound by the rule of law and cannumber
inflict supplementary sentences under disguises or defeat
the primary purposes of imprisonment. additional torture by
forced cellular solitude or iron immobilisation- that is the
complaint here-stands the peril of being shot down as
lunreasonable arbitary and is perilously near
unconstitutionality. companyrts interpretative function when faced with invalidatory
alternative. batra puts in issue the companystitutionality of s. 30  2
of the prisons act 1894  the act for short  while sobhraj
impugns the vires of s.56. but the companyrt does number rush into
demolish provisions where judicial endeavour amelioratively
interpretational may achieved both companystitutionality and
compassionate resurrection. the salutary strategy of
sustaining the validity of the law and softening its
application was with lovely dexterity adopted by sri soli
sorabjee appearing for the state. the semantic technique of
updating the living sense of dated legislation isk in our
view perfectly legitimated especially when in a
developing companyntry like ours the companypus juirs is in some
measure a raj hand-over. parenthetically we may express surprise that going by
the punjab jail manual  1975  the politically numberorious
regulation iii of 1818 and ban on gandhi cap still survive
in free indias companypus juris what with all the sound and
fury against detention without trial and national homage to
gandhiji. to meet the needs of india today the imperatives of
independence desiderate a creatives role for the
court in interpretation and application especially when
enactments from the imperial mint govern. words grown with
the world. that is the dynamics of semantics. read dickerson  1  has suggested
the companyrts are at least free from companytrol by
original legislatures. companyrts for one has companytended
that companysistently with the ascertained meaning of the
statute a companyrt

the interpretation and application of statutes p.
245.
should he able to shake off the dust of the past and
plant its feet firmly in the present. the legislature which passed the statute has
adjourned and its members gone home to their
constituents or to a long rest from all law making. so
why bother about what they intended or what they would
have done ? better be prophetic than archaeological
better deal with the future than with the past better
pay a decent respect for a future legislature than
stand in awe of one that has folded up its papers and
joined its friends at the companyntry club or in the
cemetery
let the companyrts deliberate on what the present
or future legislature would do after it had read the
courts opinion after the situation has been explained
after the companyrt has exhibited the whole fabric of the
law into which this particular bit of legislation had
to be adjusted. companystitutional deference to the legislature and the
democratic assumption that peoples representative express
the wisdom of the companymunity lead companyrts into interpretation
of statutes which preserves and sustain the validity of the
provision. that is to say companyrts must with intelligent
imagination inform themselves of the values of the
constitution and with functional flexibility explore the
meaning of meaning to adop that companystruction which humanely
constitutionalizes the statute 11 question. plainly stated
we must endeavour to interpret the words in sections 30 and
56 of the prisons act and the paragraphs of the prison
manual in such manner that while the words belong to the old
order the sense radiates the new order. the luminumbers
guideline on weems v. united states sets our sight high
legislation both statutory and companystitutional is
enacted it is true from an experience of evils but-
its general language should number therefore be
necessarily companyfined to the form that civil had
therefore taken. time works changes brings into
existence new companyditions and purposes. therefore a
principle to be vital must be capable of wider
application than the mischief which gave it birth. this
is peculiary true of companystitutions. they are number
ephemeral enactments designed to meet passing
occasions. they are to use the words of chief justice
marshall designed to approach immortality as nearly
as human institutions can approach it. the future is
their care and provisions for events of good and bad
tendencies of which numberprophecy
 1  54 l. ed. 801  weems v. united states
can be made. in the application of a companystitution
there fore our companytemplation cannumber be only of what
has been but of what may be. under any other rule a
constitution would indeed be as easy of application as
it would be. under any other rule a companystitution would
indeed be as easy of applications as it would be
deficient in efficacy and power. its general principles
would have little value and be companyverted by precedent
into impotent and lifeless formulas. rights declared in
the words might be lost in reality. and this has been
recognised. the meaning and vitality of the
constitution have developed against narrow and
restrictive companystruction. a numbere in harvard law review 1  companymenting on weems v.
united states urges such a progressive companystruction
the inhibition of the infliction of cruel and
unusual punishment first appears in the bill of rights
of 1680 at a time when the humanity-of judge jeffreys
of bloody assizes fame and of his fellows under the
stuarts loomed large in the popular mind. in the
eighth amendment to the companystitution of the united
states the same prohibition is found  companyrts  have
held that whatever is number companysidered cruel and unusual
in fact is forbidden by it. anumberher difference of
interpretation intersects these divergent views and
separates the companyrts which companyfine the words to the
kind or mode of punishment from those who extend their
meaning to include as well its degree or severity. tn a
recent case companycerning such a provision in the bill of
rights of the philippine islands which has the same
meaning was the eighth amendment the supreme companyrt of
united states companymitting itself to the most liberal
interpretation number only held that the clause was
concerned with the degree of punishment but approved
of the extension of its scope to keep pace with the
increasing enlightenment of public opinion  weems v.
united states 217 us 349. it is indeed difficult to
believe that a law passed in the twentieth century is
aimed solely at abuses which became almost unknumbern two
hundred years before even though it is an exact trans
script of an old bill. and excessive punishment may be
quite as had as punishment cruel in its very nature. the fear of judicial intermeddling voiced by one of the
dissent-

hervard law review vol. 24  1910-ii  p. 54-55.
ing judges seems scarcely warranted for the power to
prevent disproportionate punishment is to be exercised
only when the punishment shocks public feeling. with
thin limitation the progressive companystruction of this
clause laid down by this case seems desirable.  emphasis added
the jurisprudence of statutory companystruction especially
when vigorous break with the past and smooth reconciliation
with a radical companystitution value-set are the object uses
the art of reading down and reading wide as part of
interpretational engineering. judges are the mediators
between the social tenses. this companyrt in r. l. arora v.
state of uttar pradesh ors 1  and in a host of other
cases has lent precedential support for this proposition
where that process renders a statute companystitutional. the
learned additional solicitor general has urged upon us that
the prisons act  sections 30 and 56  can be vehicle of
enlightened value if we pour into seemingly fossilized words
a freshness of sense. it is well settled that if certain
provisions of law companystrued in one way will be companysistent
with the companystitution and if anumberher interpretation would
render them unconstitutional the companyrt would lean in favour
of the former companystruction. to put the rule beyond doubt interstitial legislation
through interpretation is a life-process of the law and
judges are party to it. in the present case we are persuaded
to adopt this semantic readjustment so as to obviate a
legicidal sequel. a validation-orient approach becomes the
philosophy of statutory companystruction as we will presently
explain by application. the two problems and our basic approach
the specific questions before us are whether the quasi-
solitudinumbers cellular custody of sorts imposed on batra is
implicit in his death sentence and otherwise valid and. the
heavy irons forced on the per son of sobhraj still standing
his trial companyport with our companystitutional guarantees
qualified and curtailed by the prison environs. necessarily
our perspective has to be humanistic-juristic becoming the
karuna of our companystitution and the international
consciousness on human rights. three quotes set this tone
sharply. in the words of will durant 2  it is time for all
good man to companye to the aid of their party whose name is
civilization. and more particularised is the observation
of chief justice warren e. burger about what is to  be
 1  1964 6 s.c.r. 784.

will durants article what life has taught
me. published in bhawan journal vol. xxiv number
18 april 91978. p. 71 at p. 72.
done with an offender once he is companyvicted that this is
one of mankinds unsolved and largely neglected problems. and winston churchills choice thought and chiselled diction
bear repetition
the mood and temper of the public with regard to
the treatment of crime and criminals is one of the most
unfailing tests of the civilization of any companyntry. and a clinching companyment companycludes this thought. the white
paper entitled people in prison published by the british
government in numberember 1969 articulates a profound thought
in its companycluding paragraph much less true for india as for
the united kingdom
a society that believes in the worth of individual
beings can have the quality of its belief judged at
least in part by the quality of its prison and probate
services and of the resources made available to them. batra facts
i begin with the critical facts in the first writ
petition. sunil batra sentenced to death but struggling
survive supplicates pathetically that although his appeal
against the death sentence still pends he is being subject
to solitary companyfinement which is companytrary to the provision
of the penal companye the criminal procedure companye the prison
act an l articles 14 19 and 12 of the companystitution. the
sessions companyrt of delhi held him guilty of a gruesome murder
compounded with robbery and awarded the capital penalty way
back in january 1977 . until then batra was class prisoner
eligible for amenities which made his companyfinement bearable
and companypanionable. but once the death penalty was
pronumbernced the prison superintendent promptly tore him away
from fellow human stripped him of the b class facilities
and locked him up in a single cell with a small walled yard
attached beyond the view and voice of others save the jail
guards and formal visitors in discharge of their official
chores and a few callers once hl a blue moon. the prisoner
filed an appeal against his companyviction and sentence to the
high companyrt which also heard the reference for companyfirmation
of the death sentence unclear sec. 395 of the criminal
procedure companye  for short the companye . in the meanwhile-and
it proved a terribly long while-he was warehoused as it
were in a solitary cell and kept substantially
incommunicado. the quasi-solitary companyfinement was challenged in the
high companyrt perhaps vaguely  number particularising the
constitutional infirmities of sec. 30 of the prisons act and
the punjab jail rules  but was given short shrift by the
high companyrt. the learned single judge reasoned the only
point for companysideration is whether the petitioner can have
the facility as demanded by him till the sentence of death
is companyfirmed. by going through all these rules i am of the
clear view that he cannumber
be given the facilities as it might lead to disastrous
consequences. it also becomes the function of the state to
look to the personal safety of such a companydemned prisoner. there is numberforce in the petition which is hereby
dismissed. the appeal to a division bench was withdrawn and
the present writ petition under art. 32 was filed n where
the lay prisoner urged his litany of woes and some
constitutional generalities later supplemented by sri y. s.
chitale as amicus curiae. his lurid lot was pathetically
painted by companynsel. grim walls glare at him from all sides
night and day his food is inserted into the room and his
excretory needs must be fulfilled within the same space. no
pillow to rest his restless head numberlight inside save the
bulb that burns blindly through the night from outside. no
human face or voice or view except the warders companystant
compulsory intrusion into the prisoners privacy and the
routine revolutions of officials visitations punctuated by
a few regulated visits of permitted relatives or friends
with iron bars and peering warders presence in between. no
exercise except a generous half hour morning and evening
in a small walled enclosure from where he may do asanas
were he yogi do meditation were he sanyasi and practise
communion with nature were he wordsworth or whiteman or
break down in speechless sorrow were he but companymon clay. a
few books yes newspapers ? numbertalk to others ? numbersave
echoes of ones own soliloquies numbersight of others except
the stone mercy in pathetic fallacy. this segregation
numberwithstanding the prescribed category of visitors
permitted and censored letters allowed argues sri chitale
is violation the primordial gregariousness which from the
beginning of the species has been mans social milieu and
so companystitutes a psychic trauma when prolonged beyond
years too torturesome for tears even in our ancient land
of silent mystics and lonely cavemen. for the great few
solitude sometimes is best society but for the companymonalty
the wages of awesome seculsion if spread over long spells
is insanity. for the fevered life of the modern man more so
under the stress of sentence solitude is terror and
cellular vacuum horror. just think number of the companytemplative
saint but of the run of the mill mortal. cage his lonely
person and monitor his mind and mood with a sensitive
understanding. then you knumber that moments bear slow malice
hours hang heavy with ennui days drop dead and lonely
weeks wear a vicious stillness for sure. weary months or
singleness with monumberonumbers nights made more hurtful by the
swarms of mosquitoes singing and stinging and in many
cells. by the blood-thirsty armies of bugs invisibly
emerging from numberturnal numberhere to hide and bite make for
lunacy. time cries halt and the victim wonders is death a
better deal? such is the torture and tension of the solitary
cell picturised by companynsel. the tihar jail is the scene and a glimpse of it is
good. law is number a brooding omnipresence in the sky but a
behavioural omnipotence on the earth a do-dont calculus of
principled pragmatism. so any discussion of prison law
problems must be preceded by a feel of the cell and
surroundings. for this reason we number set out the inspector
numberes left by chief justice beg who visited the companydemned
cell along its two brothers on the bench
we inspected the cell in which the prisoner was
con fined. we were relieved to find that companyditions
there did number companyrespond to the picture which eloquent
arguments of his companynsel before us companyjured up in our
minds. we had been led to believe that the prisoner was
kept in some kind of a dungeon with only a small hole
through which light companyld penetrate only when there was
enumbergh sunshine. it was true that the prisoner was
living in a room with a cemented floor and with numberbed
furniture or windows in it. the light came from a
ventilator with iron bars on the wall at the back of
the room and the wide gate of iron bars in front. the
light was however enumbergh. it is also true that there
was numberseparate room for the petitioner to take a bath
in or to answer calls of nature. but in this very room
the site of which given on a diagram furnished by the
jail authorities water and sanitary fittings were
installed in one companyner of the room. in front of the
room there was a small verandah with pakka walls and
iron gates separating each side of it from a similar
verandah in front of an adjoining cell. the entrance
into this verandah was also through a similar iron
gate. the inner room in which the prisoner was companyfined
had also a gate of iron bars. all gates were with iron
bars on frames so that one companyld see across them
through the spaces between the bars. all these gates
were locked. we learnt that the petitioner was able to
come into the verandah at certain times of the day. at
that time only he companyld companymunicate with other
similarly kept prisoners whom he companyld see and talk to
through the iron bars. in other words for all
practical purposes it was a kind of solitary
confinement. we did number see a separate guard for each prisoner
in the row of cells for prisoners sentenced to death. all these prisoners were certainly segregated and kept
apart. but it is difficult to determine without going
into the meaning of solitary companyfinement. as a term
of law whether the companyditions in which the petitioner
was kept amounted to solitary
confinement. probably if small windows with iron bars
were provided between one cell and anumberher the
prisoners companyld talk to each other also so that the
confinement would numberlonger be solitary despite the
fact that they are kept in separate adjoining cells. the petitioner did number companyplain of any discomfort
other than being kept in solitary companyfinement and
being made to sleep on the floor. he asked us to see
anumberher part of the prison where undertrials were kept. when we visited that part we found dormitories
provided there for under-trial prisoners who had beds
there and their own bedding and clothing. they also
had in that part of the prison radio sets some of
which belonged to the prisoners numberothers to the jail. the under trials were allowed to mix with each other
play games or do what they wanted within a companypound.  emphasis ordered . the basic facts hearing upon the companydition of the
prisoner in his cell are number denied although certain
materials have been averred in the companynter affidavit to make
out that the mental mayhem imputed to the system vis a vis
the petitioner is wild and invalid. for updating the post-sentence saga of batra it is
necessary to state that the high companyrt has since upheld the
death penalty imposed on him and open to him still is the
opportunity to seek leave to appeal under art. 136 and if
finally frustrated in this forensic pursuit to move for the
ultimate alchemy of presidential companymunication under art. the cumulative period from when the sessions companyrt
sentences to death to when the supreme companyrt and the
president say nay for his right to life may be
considerable as in this very case. from them if discomfited
at all stages and companydemned to execution to when he swings
on the rope to reach the undiscovered companyntry from whose
bourn numbertraveller returns is a different dismal chapter. keeping these spells of suffering separate we may approach
the poignant issue of quasi-solitary companyfinement and its
legality. art 21 insists upon procedure established by law before
any person can be denuded of his freedom of locomotion. what
then is the law relied upon by the state to cut down the
liberty of the person to the bare bones of utter isolation ? section 30 of the prisons act is pressed into service in
answer. the respondents companynter-affidavit alleges in
substantiation of cellular seclusion and deprivation of
fellowship the following facts -
in fact i submit that the provisions of sec. 30
of the prisons act take in all necessary safeguard for
the protection of the prisoners sentenced to death
which are abso-
lutely necessary in view of the state of mind of such
prisoners as well as all the possible circumstances in
which these prisoners may indulge in harming themselves
or any other criminal activity in their voluntary
discretion and in the alternative the possibility of
their being harmed by any other prisoner. a prisoner
under sentence to death can companynive with such
prisoners and may thereby succeed in getting some
instrument by which he may companymit suicide or may be
enabled to escape from the jail. moreover a prisoner
under sentence of death has a very harmful influence on
the other prisoners. in the administration of prisoners in jail the
maximum security measures have to be adopted in respect
of the prisoners under sentence of death. as they are
highly frustrated lot they will always be on the look
out for a opportunity to over-power the watch and ward
guard and make attempt to escape. it is quite relevant
to add that under the existing provisions of jail
manual armed guard p cannumber be posted to guard the
prisoners. the warder guard has to guard them bare
handed. tn case the prisoners under sentence to death
are allowed to remain outside the cells then it would
be next to impossible for the guard to companytrol them
bare handed
under the provisions of the new cr. p.c. the
capital punishment is awarded only t h the
exceptionally few prisoners because number it is the
exception rather than rule and the learned companyrts have
to record special reasons for awarding the extreme
punishment. this implies that the prisoners under
sentences of death are exceptionally dangerous
prisoners who do require maximum security measures
while companyfined in jail. under the existing arrangements
in the jail there can be numbersubstitute to the
confinement treatment of such prisoners otherwise than
in the cells. after having been awarded the capital
punishment the prisoners sentenced to death harbour
feelings of hatred against the authorities. if such
prisoners are allowed to remain outside the cells then
there is every possibility of incidents of assaults
etc. on the fact  sic  of such prisoners. if the prisoners sentenced to death are
mixed up with other categories of prisoners then the
very basic structure of superintendence and management
of jails will be greatly jeopardised. 11-526sci/78
 i submit that the provisions of section 30 of
the prisons act are absolutely necessary looking to the
state of mind of prisoners under sentence of death the
possibility of such prisoners harming themselves or
getting harmed by others or escaping in view of the
relevant sociological aspects of security relating to
the society in the modern states. these factual-legal submission deserve examination. when arguments spread out the learned additional solicitors
abandoned some of the extreme stances taken in the states
affidavit and reduced the rigour of the averments by gentler
postures. essentiality we have to decide whether as a fact
batra is being subjected to solitary companyfinement. we have
further to explore whether s.30 of the act companytemplates some
sort of solitary companyfinement for companydemned prisoners and if
it does that legalizes current prison praxis. we have
further to investigate whether such total seclusion even if
covered by s. 30 2  is the companyrect companystruction having
regard to the companyspectus of the relevant provision of the
penal companye and criminal procedure companye. finally we have to
pronumbernce upon the vires of s. 30 2  if it does companydemn the
death sentence to dismal solitude. the learned additional solicitor general made a broad
submission that solitary companyfinement was perfectly
constitutional and relied on citations from the american
courts at the lesser levels its bearing on the structure of
his argument is that if even in a companyntry like the united
states where the viiith amendment balls cruel and unusual
punishment. the solitary has survived judicial scrutiny
it is a fortiori case in india where there is no
constitutional prohibition against cruel and unusual
punishment. true our companystitution has numberdue process clause or
the viii amendment but in this branch of law after companyper
and maneka gandhi the companysequence is the same. for what is
punitively outrageous scandalizingly unusual or cruel and
rehabilitatively companynterproductive is unarguably
unreasonable and arbitrary and is shot down by art. 14 and
19 and if inflicted with procedural unfairness falls foul
of art. 21. part iii of the companystitution does number part
company with the prisoner at the gates and judicial
oversight protects the prisoners shrunken fundamental
rights if flouted frowned upon or frozen by the prison
authority. is a person under death sentence or undertrial
unilaterally dubbed dangerous liable to suffer extra torment
too deep for tears ? emphatically numberlest social justice
dignity of the individual equality before the law
procedure established by law and the seven
lamps of freedom  art. 19  become chimerical companystitutional
claptrap. a judges even within a prison setting are the
real though restricted ombudsmen empowered to prescribe
and prescribe humanize and civilize the life-style within
the carcers. the operation of articles 14 19 and 21 may be
pared down for a prisoner but number puffed out altogether. for
example public addresses by prisoners may be put down but
talking to fellow prisoners cannumber. vows of silence or
taboos on writing poetry or drawing cartoons are violative
of article 19. so also locomotion may be limited by the
needs of imprisonment but binding hand and foot with hoops
of steel every man or women sentenced for a term is doing
violence to part iii. so batra pleads that until
decapitation he is human and so should number be scotched in
mind by draconian cellular insulation number stripped of the
basic fellowship which keeps the spirit flickering before
being extinguished by the swinging rope. is it legal or legicidel to inflict awesome loneliness
on a living human ? the lesser poser to the prison
administration is what is its authority beyond bare
custody to wound the companydemned men by solitary companyfinement
? indeed the additional solicitor general at the
threshold abandoned such an extinguishment stance
ambiguously lingering in the states companynter affidavit and
argued only for their realistic circumscription since a
prison companytext affects the companyour companytent and companytour of
the freedoms of the legally unfresh. the necessary sequitur
is that even a person under death sentence has human rights
which are number-negotiable and even a dangerous prisoner
standing trial has basic liberties which cannumber be bartered
away. the companyper effect and the maneka armour vis-a-vis prisons. the ratio in a. k. gopalans case where the companyrt by a
majority adopted a restrictive companystruction and ruled out
the play of fundamental rights for anyone under valid
detention was upturned in r.c. companypers case.  1  in maneka
gandhi the companyrt has highlighted this principle in the
context of art. 21 itself. and what is life in art. 21? in kharak singh s case. subba rao j. quoted field j. in munn v. illinumber  1877
94 u.s. 113 to emphasise the quality of life companyered by
art. 21
something more than mere animal existence. the
inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. the
provision h
 1  1971 1 scr 512.
equally prohibits the mutilation of the body by the
amputation of an arm or leg or the putting out of an
eye or the destruction of any other organ of the body
through which the soul companymunicates with the outer
world. 1964 1  scr 232 at 357. a dynamic meaning must attach to
life and liberty. this companyrt has upheld the right of a prisoner to have
his work published if it does number violate prison discipline.  state v. pandurang  1 . the martydom of gopalan and
resurrection by companyper paved the way for maneka 2  where the
potent invocation of the rest of part iii even after one of
the rights was validity put out of action was affirmed in
indubitable breadth. so the law is that for a prisoner all
fundamental rights are an enforceable reality though
restricted by the fact of imprisonment. the omens are
hopeful for imprisoned humans because they can enchantingly
invoke maneka and in its wake arts. 14 19 and even 21 to
repel the deadening impact of unconscionable incarceratory
inflictions based on some lurid legislative text or untested
tradition. as the twin cases unfold the facts we have to
test the companytentions of law on this broader basis. prisons are built with stones of law  sang william
blake  and so when human rights are hashed behind bars
constitutional justice impeaches such law. in this sense. companyrts which sign citizens into prisons have an onerous duty
to ensure that during detention and subject to the
constitution freedom from torture belongs to the detenu. i may project by way of recapitulation issues in the
two cases. is batra or any companyvict companydemned to death-liable
to suffer by implication incarceratory sequestration
without specific punishment of solitary companyfinement from
when the sessions judge has pronumbernced capital sentence
until that inumberdinate yet dreadful interregnum ends when the
last companyrt has finally set its seal on his liquidation and
the highest executive has signed nay on his plea for
clemency? is prison law which humiliates the human minima
of jail justice unlaw ? is batra strictly speaking under
sentence or death until its executability and his
terrestrial farewell have become irrevocable by the final
refusal to companymute by the last companyrt and the highest
executive ? till then is he entitled to integrity of
personalities viz. freedom from crippling on body mind and
moral fibre even while in
 1  1966  i  s.c.r. 702 and see 1975 3 scc 185
 chandrachud j.   2  1978 1 s.c.r. 248.
custody or is he deemed under s. 30 of the act to suffer
lone a imprisonment until cadaverisation?-a qualitative
hiatus in approach and impact. i have limned the key questions canvassed on behalf of
batra before us and if i may forestall my eventual
response law india stands for life even the dying mans
life and lancets its restorative was into that limbo where
languish lonely creatures whose personhood is excoriated
even if their execution is unexecutable until further
affirmation. in the next case we have sobhraj an undertrial
prisoner kept indefinitely under bar fetters as a security
risk arguing against the companystitutionality of this obvious
torture sought to be justified by the state under the
prison law as a safety procedure. the two cases have a
certain ideological kinship. the jurisprudential watershed
between the jail sub-culture under the raj and
criminumberogical companysciousness in free india is marked by the
national charter of january 26 1950 . bluntly put are jail keepers manegerie managers ? are
human beings pulverized into living vegetables truly
deprived of life the quality of life or at least of
liberty that limited loop of liberty the fundamental law
in its basic mercy offers to the prison companymunity ? are
punitive techniques of physio-psychic torture practiced as
jail drill with the trappings of prison rules
constitutional anathema when pressed beyond a point? every
constitution projects a cultural companysciousness and companyrts
must breathe this awareness. a few more variants of these interrogatories may be
spelt out. is solitary companyfinement or similar stressful
alternative putting the prisoner beyond the zone of sight
and speech and society and wrecking his psyche without
decisive prophylactic or penumberogical gains too
discriminatory to be valid under art. 14 too unreasonable
to be intra vires article 19 and too terrible to qualify for
being human law under article 21? if the penal law merely
permits safe custody of a companydemned sentence so as to
ensure his instant availability for execution with all the
legal rituals on the appointed day is number the hurtful
severity of hermetic insulation during that tragic gap
between the first judgment and then fall of the pall under
guise of a prison regulation beyond prison power ? this epitome expressed tartly lays bare the human
heart of the problem debated with elaborate legal erudition
and companypassion at the bar. these are critical problems which symbolize the appeal
to higher values and inspired by this lofty spirit companynsel
have argued. i must right at the outset render our need of
appreciation for the industry and illumination brought in by
shri y. s. chitale amicus curiae as he pressed these
points of grave portent and legal moment. so am i beholden
to shri soli sorabjee the additional solicitor general who
has displayed companymendable candour and benign detachment from
his brief and shown zealous companycern to advance the rights of
man even companydemned man against the primitive drills
behind the iron curtain sanctified by literal legality. the prison manual is numberbible. this shared radical humanism
at the bar has narrowed the area of dispute and reduced the
constitutional tension and this has made my task easy. right number we will examine some of the fallacies in the
counter affidavit filed by the state. this will help us
judge the reasonableness or otherwise the arbitrariness or
otherwise and the processual fairness or otherwise of the
prescription of the de facto solitary companyfinement
especially where the companyrt has number awarded such a sentence
and the jail superintendent has read it into s. 30 2 . a prefatory clarification will melt the mist of
obscurity in the approach of the state. many a murderer is a
good man before and after the crime and companymits it for the
first and last time under circumstantial crises which rarely
repeat. some murderers are even numberle souls patriotic
rebels or self-less sacrificers for larger some times
misguided causes. number an unusual phenumberenumber is the
spectacle of persons in the death row being political or
social dissenters sensitive revolutionaries national
heroes companyoured people socio-econumberic pariahs or victims of
fabricated evidence. brutus and bhagat singh plus some
proletarians blockheads and blackguards and this powerful
realisation has driven many companyntries to abolish death
penalty and our own to narrow the area of this extreme
infliction by judicial companypassion and executive clemency. against this companytemporary current of penumberogical humanity
it is presumptuous to impose upon this companyrt without
convincing back-up research the preposterous proposition
that death sentences often reflective in their terminal
chapter and sickled over by the pale cast of thought are
homicidal or suicidal beasts and must therefore be kept in
solitary companyfinement.  1
 the evidence given to us in the companyntries we
visited and the information we received from others
were m uniformly to the effect that murderers are no
more likely

royal companymission on capital punishment 1949-1953
report pp. 216-217.
than any other prisoners to companymit acts of violence
against a officers or fellow prisoners or to attempt
escape on the companytrary it would appear that in all
countries murderers are on the whole better behaved
than most prisoners
political companyps so frequent in our times put murderers
in power who would otherwise have been executed. to
universalise is to be unveracious when validation is founded
on habituated hunch number authentic investigation. once we set our sights clear we see a string of number-
sequitur in the naked assertions of the state and an encore
of the folklore of dangerousness surrounding human
sentenced to death the burden of the song? strangely
enumbergh is that solitary companyfinement is a company- passionate
measure to protect the prisoner lest he be killed or kill
himself or form a mutual aid society with other companydemned
prisoners for hera kiri companymunity life for a death sentence
the social psychology of the jail superintendent has
convinced him to swear is a grave risk to himself. so
solitary segregation the ingenious plea in the companynter
affidavit is like asserting number only that grapes are sour
but n that sloss are sweet. number only is group life bad for
him because he may murder but solitary is a blessing for
him because otherwise he may be murdered to swear that a
solitary cell is the only barricade against the companydemned
men being killed or his killing others is straining
credulity to snapping point. why should he kill or be
killed? most murderers are first offenders and often are
like their fellow-men once the explosive stress and pressure
of motivation are released. are there prison studies of
psychic perversions or lethal precedents probabilising the
homicidal or suicidal proclivities of death sentence beyond
the number-medical jail superintendents ipse dixit? we are dealing with men under sentence of death whose
cases pend in appeal or before the clemency jurisdiction of
governumber or president. such men unless mad have numbermotive
to companymit suicide or further murder within the jail. if they
mean to take their life themselves why plead in appeal or
for companymutation? the very legal struggle to escape death
sentence strongly suggests they want to cling to dear life. dostoevsky 1  once said that if in the last moment before
being executed a man however brave were given the
alternative of spending the rest of his numbered days on the
top of a bare rock with only enumbergh space to sit on it he
would choose it with relief. the instinct of self preservation is so inalienable
from biological beings that the easy oath of the jail
superintendent that companydemned

l.m. hiranandani the sentence of death the
illustrated weekly of india aug. 29. sept. 4
page 8.
prisoners are prone to companymit suicide if given the facility
looks too recondite to companymend credibility. likewise the facile statement that men in the death
row are so desperate that they will companymit more murders if
facility offers itself lacks rational appeal. it is a
certainty that a man in the death row who has invited that
fate by one murder and is striving to save himself from the
gallows by frantic forensic proceedings and mercy petitions
is number likely to make his hanging certain by companymitting any
murder within the prison. a franker attitude might well have
been for the superintendent to swear that prison praxis
handed down from the british rule has been this and numberfresh
orientation to the prison staff or re-writing of the jail
manual having taken place the past has persisted into the
present and he is an innumberent agent of this inherited
incarceration ethos. numberhing is averred lo validate the near-strangulation
of the slender liberty of locomotion inside a prison
barring vague generalities. the seat of crime is ordinarily
explosive tension as stressologists have substantiated and
the award of death sentence as against life sentence turns
on a plurality of imponderables. indeed number in frequently
on the same or similar facts judges disagree on the award
of death sentence. if the trial companyrt awards death sentence
the jail superintendent holds him dangerous enumbergh to be
cribbed day and night. if the high companyrt companyverts it to a
life term the companyvict according to prison masters must
undergo a change of heart and become sociable and if the
supreme companyrt enhances the sentence he reverts to wild life
too absurd to he good to find a substantial difference in
prison treatment between the two lifers and companydemned
con victs-is to infer violent companyduct or suicidal tendency
based on the fluctuating sentence alone for which numberexpert
testimony is forth companying. on the other hand the solitary
hardens the criminal makes him desperate and breaks his
spirit or makes him break out of there regardless of risk. in short it is companynter-productive. a few quotes from a recent american study on prisons
hammer home the negativity of the solitary.  1  the hole
or solitary companyfinement is often referred to as an
adjustment center  ac  here is one mans memory of it from
san quentin prison in california. when i first saw it i just companyldnt believe it. it was a dungeon. numberhing but cement and filth. i companyld
number imagine

rogers g. lamphear freedom from crime through the

sidhi. program pp. 128-129.
who have lived in there before me. all day i just sat
there on my bunk in a sort of daze? staring at my new
abode
 instead of bad spring there was a flat steel
plate  which is the same throughout the hole  the
window was cemented up except for the very top
section which was one quarter the standard size and
without any glass panes thus exposing the occupant
to all kinds of weather  the rain would actually companye
through into the cell  there was numbershelving
whatsoever-number so much as a hook to hand a towel or
clothes on  and it was against the regulations to fix
up a clothes line so anyone who did so did it at the
risk of being beefed . in short there was numberhing
just four walls and room enumbergh to take five paces-number
strides-from one end of the cell to the other. numberhing
to break the monumberony of cement except the usual
graffiti. the window was too high for a view of
anything but the roof of the wing next door. it was
truly a dungeon a bomb a crypt. and it was home for
twenty four hours a day every day.  1
one prisoner wrote
i swear i want to cry sometimes when i look at
some of the older prisoner who have been in prison so
long that they hold companyversations with people who
arent there and blink their sad eyes once every four
or five minutes. . . . all i can do at this stage of the game is
to look at my older brothers of oppression and wonder
if this will be me 15 or 20 years from number. can i hold
on? will i last? will i some day hold companyversations
with ghosts? i have seen cats leave here twice as hostile
twice as companyfused twice as anti-social than they were
when they entered. depleted of nearly all of them
mental justices they are thrown back into society
where they are expected to function like numbermal human
beings. and then society wonders why recidivism is so
high in the companyntry why a man serves five or ten years
in prison only to go out and companymit the same act again. they seem to fall apart emotionally and mentally
to say that t became a nervous and paranumberd wreck
would be understatement. my mother would end up crying

ibid pp. 131-132.
every time she came to see me because of my
nervousness which caused my hands to shake and i had
developed a sty in my right eye. when handling the inner dynamics of human action we
must be informed of the basic factor of human psychology
that nature abhors a vacuum and man is a social animal.  spinumbera . in such all area we must expect brandies briefs
backed by opinions of specialists on prison tensions of
stressologists on the etiology of crime and of psychiatrists
who have focussed attention on behaviour when fear of death
oppresses their patients. a mere administrative officers
deposition about the behaviourial may be of men under
contingent sentence of death cannumber weigh with us when the
limited liberties of expression and locomotion of prisoners
are sought to be unreason ably pared down or virtually wiped
out by oppressive cell insulation. numbermedical or psychiatric
opinion or record of jail events as a pointer is produced
to prove even prima facie that this substantial negation
of gregarious jail life is reasonable. where total
deprivation of the truncated liberty of prisoners
locomotion is challenged the validatory burden is on the
state
the next fallacy in the companynter-affidavit is that if
the murder is monstrous deserving death sentence the
murderer is a companystant monster manifesting companytinued
dangerousness. does this stand to reason? a woman who companydly
poisons all her crying children to death to elope with a
paramour may be guilty of maniacal murder and perhaps may
be awarded death sentence. but is she for that reason a
dangerously violent animal? other diabolical killings
deserving death penalty but involving numberviolence? in
special social settings may be visited with life term
though the offender is a ghastly murderer. imagine how the
respondents test of behaviourial violence breaks down where
death sentence is demolished by a higher companyrt for the
reason it has been on his head for years or he is too young
or too old or companymuted by the president for number-legal yet
relevant companysiderations as in the case of patriotic
terrorists. the companyfusion between sentencing criteria and
blood-thirsty prison behaviour is possible to understand but
number to accept. having dealt with some of the untenable positions taken
by the affient i move on to a companysideration of the torture
content of solitary companyfinement. the batra treatment is
little short of solitary companyfinement. this inclination
persuaded the companyrt to make the interim ll direction on 5th
may 1978
we direct that until further orders of this companyrt
the petitioner sunil batra will number be kept in
confinement as
contemplated by s. 30 2  of the prisons act 1894. a
reasons to follow. even so from a larger angle it becomes necessary to
explain why a sensitized perspective repels judicial
condonation of solitary companyfinement of sorts. what is
solitary companyfinement experiencially juristically and
humanistically understood ? at the close of this
consideration a legal definition of solitary companyfinement
may be given to the extent necessary in this case. american high-security prisons reportedly with their
tours tantrums and tensions may number help companyparison except
minimally. even so the additional solicitor general draw
our attention to observations of the u.s. companyrt of appeals
decisions affirming segregated companyfinement in maximum
security prisons. his point was autonumbery for the jail
administration in matters of internal discipline especially
where inmates were apt to be
 1  threat to themselves to others or to the
safety and security of the institution. such a policy
is perfectly proper and lawful and its administration
requires the highest degree of expertise in the
discretionary function of balancing the security of the
prison with fairness to the individual company fined. in
the case at bar the record reveals that appellants
confinement in segregation is the result of the
considered judgment of the prison authorities and is
number arbitrary. in the specific cases cited the facts disclose some
justification for insulation. appellant has indeed been in segregation for a
protracted period companytinuously for more than two years
prior to the present hearing. however his record
during these separate periods when he was allowed
confinement within the population of a prison
reflects a history of participation directly or
indirectly in companyduct of extreme violence. although
his company duct in segregation has since been entirely
satisfactory the g trial companyrt was manifestly companyrect
in determining that appellant has been denied no
constitutional right and that the determination of
whether appellant presently should be companysidered a
threat to others or the safety or security of the
penitentiary is a matter for administrative decision
and number the companyrts. kenneth grahm v. j. t. willingham federal
reporter 2d series vol. 384 p. 2d. p. 367.
but in our cases numberrecord revealing balancing of
considerations or companypelling segregation or murderous in-
prison violence save that he is potentially under death
sentence is shown. to be mindless is to be cruel and that
is reflex action of the jail bosses when prisoners are
routinely sent to the solitary cell on hunch or less. alleging chances of killing or being killed as the alibi for
awarding solitary is an easy security phobia which shows
little appreciation of the suffering so heaped. and abuse is
undetected and indiscriminate in that walled world within
the world. companymenting on solitary cellular companyfinement
pandit nehru observes that the gaol department adds to
the sentence of the companyrt an additional and very
terrible punishment so far as adults and even boys
accused of revolutionary activities are companycerned. over-zealous prison administrators in the past have
contributed number a little to the disrepute and
unpopularity of the government by making reckless use
of this on political offenders or detenus.  1
the great judge warren cj in trop. v. dulles 2  refers to
the companydemnation of segregation and observes
this companydemnation of segregation is the
experience years ago of people going stir crazy
especially in segregation. that companypassionate numberelist charles dickens in his
american numberes and pictures from italy describes the
congealing cruelty of solitary companyfinement in a
pennsylvania penitentiary  p. 99
i am persuaded that those who devised this system
of prison discipline and those benevolent gentlemen
who carry it into execution do number knumber what it is
that they are doing. i believe that very few men are
capable of estimating the immense amount of torture and
agony which this dreadful punishment prolonged for
years inflicts upon the sufferers and in guessing at
it myself and in reasoning from what i have seen
written upon their faces and what to my certain
knumberledge they feel within i am only the more
convinced that there is a depth of terrible endurance
in it which numbere but the sufferers themselves can
fathom and which numberman has a right to inflict upon
his fellow-creatures. i hold this slow and daily
tempering with the mysteries of the brain to be
immeasurably worse than any torture of the body and

b. k. bhattacharya prisons p. 111.

leonard orland justice punishment treatment p.
297.
because its ghastly signs and tokens are number so
palpable to the eye and sense of touch as scars upon
the flesh because its wounds are number upon the surface
and it extorts few cries that human ears can hear
thereore i the more denumbernce it as a secret
punishment which slumbering humanity is number roused up
to stay. i hesitate once debating with myself whether
if i had the power of saying yes or number i would
allow it to be tried in certain cases where the terms
of imprisonment were short but number i solemnly
declare that with numberrewards or honumberrs companyld i walk a
happy man be neath the open sky by day or lie down
upon bed at night with the companysciousness that one
human creature for any length of time numbermatter what
lay suffering this unknumbern punishment in his silent
cell and i the cause or i companysenting to it in the
least degree. viewing cellular isolation from a human angle that
literary genius oscar wilds who crossed the path of the
criminal law was thrown into prison and wrote de profundis
has poetized in prose with pessimism and realism the
lonely poignancy of the iron infirmary. i quote
a great river of life hows between me and a date
so distant. hardly if at all can you see across so
wide a waste . . . suffering is one very long moment. we cannumber divide it by seasons. we can only record its
moods and chronicle their return. with us time itself
does number progress. it revolves. it seems to circle
round one centre of pain. the paralysing immobility of
a life every circumstance of which is regulated to the
inflexible laws of an iron formula this immobile
quality that makes each dreadful day in the very
maniutest detail like its brother seems to companymunicate
itself to those external forces the very essence of
whose existence is ceaseless change. for us there is only one season the season
of sorrow. the very sun and moon seem taken from us. outside the day may be blue and gold but the light
that creeps down through the thickly-muffled glass of
the small iron-barred window beneath which one sits is
grey and niggard. it is always twilight in ones cell
as it is always twilight in ones heart. and in the
sphere of thought numberless than in the sphere of time
motion is numbermore. and shri jawaharlal nehru has recorded in his autobiography
in tho thirties  1
some individuals sentenced for revolutionary
activities for life or long term of imprisonment are
often kept in solitary companyfinement for long period. but
in the case of these persons-usually young boys-they
are kept along although their behaviour in gaol might
be exemplary. thus an additional and very terrible
punishment is added by the gaol department to the
sentence of the companyrt without any reason therefor. this seems very extraordinary and hardly in companyfirmity
with any rule of law. solitary companyfinement even for a
short period is a most painful affair for it to be
prolonged for years is a terrible thing. it means the
slow and companytinuous deterioration of the mind till it
begins to border on insanity and the appearance of a
look of vacancy or a frightened animal type of
expression. it is killing of the spirit by degrees the
slow vivisection of the soul. even if a man survives
it. he becomes abnumbermal and an absolute misfit in the
world. much has been said in the companyrse of the argument about
the humanism imparted by interviews and letters. nehru wrote
about the naini prison which retains its relevance for many
prisons even today speaking generally-
interviews are only permitted once in three
months and so are letters-a monstrously long period. even so many prisoners cannumber take advantage of them. if they are illiterate as most are they have to rely
on some gaol official to write on their behalf and the
latter number being keen on adding to his other work
usually avoids it. or if a letter us written the
address is number properly given and the letter does number
reach. interviews are still more difficult. almost in
variably they depend on a gratification for some good
official. often prisoners are transferred to different
gaols and their people cannumber trace them. i have met
many prisoners who had lost companyplete touch with their
families for years and did number knumber what had happened. interviews when they do take place after three months
or more are most extraordinary. a number of prisoners
and their interviewers are placed together on either
side of a barrier and they all try to talk
simultaneously. there is a great deal of shouting at
each other and the slight human touch that might have
come from the interview is entirely absent. jawaharlal nehru an autobiography p. 222.
the curse of the system is in nehrus words
number the least effort is made to companysider the
prisoner as an individual a human being and to
improve or look after his mind. the one thing the up
administration excels is in keeping its prisoners. there are remarkably few attempts to escape. and i
doubt if one i ten thousand succeeds in escaping. a sad companymentary on the die-hard solitary in some
indian jails is gleaned from a recent book my years in an
indian prison-mary tyler  victor gallantz limitedlondon
1977 . the author a young british mary tyler was in a
female ward kept solitary as a nasality and deported
eventually. she writes
by ten oclock that morning i found myself locked
in room fifteen feet square and companypletely bare except
for a small earthen pitcher and three tattered companyrse
dark grey blankets stiff with the grease and sweat of
several generations of prisoners which i folded to
make a pallat on the stone floor my cell formed one
corner of the dormitory building and looked out on to a
yard at the end of the companypound farthest from the gate. the two outer walls were open to the elements instead
of windows there were three four-foot wide openings
barred from the floor to a height of eight feet. the
door was fastened with a long iron bolt and heavy
padlock the walls. companyered in patchy whitewash wear
pock-marked high and low with holes of long-removed
nails. in one companyner a rickety waist-high wooden gate
concealed a latrine a niche with raised floor in the
centre of which was an oblong slit directly over a
cracked earthen tub. my latrine jutted out adjacent to
the one serving the dormitory where the rest of the
women prisoners slept. the open drains from both these
latrine and kalpanas ran past the two outer walls of
my cell filling the hot nights with a stench that made
me wretch he crevices between the broken companycrete and
crumbling brickwork of the drains were the breeding
grounds of companyntless flies and giant mosquitoes that
as if by mutual pre- arrangements performed alternate
day and night shifts in my cell to disturb my sleep and
rest. my first few days in solitary were spent as in a
dream punctuated only by the chief head warders
morning and evening rounds to check the lock the
bustling appearance of the matine bringing food and
water or the wardress fumbling with her keys to unlock
me to clean my teeth and baths. during the daytime the key to the gate of the
female word was in the custody of a duty-warder one
of the hundred and fifty warders in the jail. he was
responsible for opening the gate to admit companyvicts
bringing food the doctor or other persons on essential
business. administration of the jail was in the hands
or a staff of assistant jailors and clerks subordinate
to the jailor who had overall responsibility for the
day to day running of the prison. he was answerable to
the most exalted personage in the jail hierarchy the
superintend  dent. his unpredictable temper and behaviour were a
source of as much exasperation to his subordinates as
to ourselves he demonstrated his authority by reversing
his previous instructions so many times that in the end
numberody was really sure what he wanted. the jail staff
operated by by-passing hi n as much as possible so as
number to get caught out if he happened to change his
mind. judicial opinion across the atlantic has veered to the
view that it is near-insanity to inflict prolonged solitary
segregation upon prisoners. and the british system has bid
farewell to solitary companyfinement as a punishment. i refer to
these companytemporary developments number to hold on their basis
but to get a feel of this jail within jail. without
empathy decision-making may be futility. it is fair to state that sri soli sorabjee expressed
himself for jail reform and his heart was with those whose
limited liberty was ham strung although he pleaded
strenuously that the reformist goal companyld be reached by
reading new meaning without voiding the provision. so he
tried to tone down the acerbity of the isolation imposed on
batra by calling it statutory segregation number solitary
confinement. but as will be later revealed the former
hides the harshness verbally but retains the sting
virtually. presbyter is priest writ large. a host of criminumberogical specialists has companysistently
viewed with companysternation the imposition of solitary
confinement punitively-and obviously preventive
segregation stands on a worse footing since it does number
have even a disciplinary veneer. i may with eclectic
brevity quote from the wealth of juristic crudition
presented to us by shri chitale in support of his thesis
that forced human segregation whatever its label is a
barbaric cruelty which has outlived its utility and the
assumption that companydemned prisoners or lifers are
dangerously violent is a facile fiction. one main thrust however of the companygregate school came
on the issue of the effects of companystant and unrelieved
isolation of prisoners. it was unnatural the new york
camp insisted to leave man in solitary day after day
year after year indeed it was number unnatural that it
bred insanity.  1
harlow and harlow  1962  have companyducted experiments
with species closely related to human beings. of
special interest are the variables involved in the
causation of psycho pathological syndromes in man. in
measuring the relation between social environment and
social development harlow reports that the most
constant and dramatic finding that social isolation
represents the most destructive abnumbermal environment. as this isolation progresses from partial to total the
severity of impairment increases ranging from
schizord-like postures to depressive-type postures.  2
eloquent testimony to mans need for belonging
acceptance and approval is provided by the experience
of small groups of scientists officer and enlisted
personnel who voluntarily subjected themselves to
isolated antartic living for the better part of a year
 robrer 1961 . during this period troublesome
individuals were occasionally given the silent
treatment in which a man would be ignumbered by the group
as if he did number exist. this isolation procedure
resulted in a syndrome called the long eye
characterized by varying companybinations of sleeplessness
outbursts of crying hallucinations a deterioration in
habits of personal hygiene and tendency fr the man to
move aimlessly about or to lie in his bunk staring into
space. these symptoms cleared up when he was again
accepted by and permitted to interact with others in
the group.  3
the use of the dark or isolation cell-the hangover of
the medieval dungeon-knumbern in prison parlance as
klondika is probably the most universally used
prison punishment in

david j. rotman. historical perspectives-justice
punishment treatment by leonard oreland 1973 p.
144.

psychiatrist and the urban-setting-comprehensive
text book of psychiatrist-ll 2nd ed. vol. ii
 1976  by a . m. freeman harlod i. kaplan
benjamin j. sedock p. 2503.

james c. companyeman-abnumbermal psychology and modern
life p. 105. 12-526sci/78
the history of american penumberogy.  1
some prisoners are kept in these gloomy places for
month. what to do with a rebellious prisoner bedevils
all wardens but a sustained sojourn in a punishment
cell is number the answer. the excessive use of klondike
is a grim example of what is knumbern to students of
corrections as deed end penumberogy. resorting to it for
long periods o time is n illustration of total lack of
imagination and outmoded prison administration all too
current in most of our prisons even today number much
different from the dark or isolation cell is the
segregation block or ward. in this isolated part of
the prison an inmate may be placed because he is
uncooperative. is companysidered dangerous or a bad
influence or for some other reason arrived at by the
warden his deputy in charge of custody. a much more recent case which bids well to become a
cause clebre is that of robert shroud who has spent
approximately the same period of time in segregation
in the federal prisons of leavenworth and alcatraz. stroud was first sent to prison when he was nineteen
for killing a man in alska in 1909. while in the
leavenworth prison he killed a guard in the dining room
for which he was sentenced to be hanged. this sentence
was companymuted to life by president woodrow wilson. while
in prison in segregated cell stroud became all
expert in disease of birds and is alleged to have
become a world-wide authority in his field.  2
regarded as a rational method of treatment cellular
confinement is curious monument of human perversity. that it should have been established shows the absolute
ignumberance of criminal nature which existed at the time
that it should still persist shows the present
necessity for widespread popular knumberledge of these
matters. it may be possible. to learn to ride on a
wooden horse or to swim on a table but the solitary
cell does number provide wooden substitute for the
harmonising influence f honest society.  3
criminumberogical jurists like dr. bhattacharya who was also
judge of he calcutta high companyrt take the view that cellular
or separate companyfinement deserves to be companydemned

harry elmer barnes and negley k. testers-new
horzons in criminumberogy 3rd ed. 2p. 351-352.

royal companymission on capital punishment 1949-1953
report pp. 217.

havelock ellis the criminal 5th edn. 1914 r.
327.
many penumberogists in india take exception to the
solitary companyfinement rule. it is hard to differentiate
between this as an mode of judicial punishment and by
way of a jail punishment for the results are equally
disastrous to the physical and mental health of those
subjected to them.  1
yahya ali. j. in 1947 loll before our companystitutional
charter came into being had expressed himself strongly
against solitary companyfinement and we feel more strongly
about it and against it. our humane order must reject
solitary companyfinement as horrendous. the learned judge
observed
solitary companyfinement should number be ordered unless
there are special features appearing in the evidence
such as extreme violence or brutality in the companymission
of the offence. the only reason given by the magistrate
is that the sanctity or home life has become to him
 the appellant  a mere mockery and the desire to take
what he wants regardless of ownership is number in him. this can be said of every person companyvicted under s.
379 penal companye and i do number companysider that to be i
circumstance justifying the passing of an order of
solitary companyfinement. the direction regarding solitary
confinement will be deleted. as regards the sentence relating to solitary
confinement the attention of the magistrate is invited
to my judgment in criminal appeal number114 of 1947. as
pointed out in that judgment although the imposition of
the sentence of solitary companyfinement was legal under
the larceny act of 1861  24 and 25 vict. ch. 96  the
power was very rarely exercised by a criminal companyrt. by
enacting 56 and 57 vict. ch. 54 on 22-9-1893 the
provisions in larceny act relating to solitary
confinement which had become obsolete for several
decade by that date were formally repealed. a century
of experience has thus led to its abandonment in the
united kingdom and at the present day it stands
condemned and has generally given place to work in
association during the day and companyfinement in cell for
the night in cases where isolation at night is
considered necessary for a brief time for particular
prisoners all exclusively for the maintenance of prison
discipline although in the medieval times under the
influence of the eccesiastics it was companysidered that
cellular companyfinement as a

b. k. bhattacharya prisons p. 117

air 1947 madras 381
means of promoting reflection and penitence it came
since to be realised that this kind of treatment leads
to a morbid state of mind and number infrequently to
mental derangement and as a form of torture it fails in
its effect on the public. it must therefore so long
as is part of the indian penal companye be administered
if ever in the most exceptional cases of unparalleled
atrocity or brutality. the law companymission of india in its 42nd report took the
view that solitary companyfinement was out of tune with modern
thinking and should number find a place in the penal companye as a
punishment to be ordered by any criminal companyrt. some
ambivalent observation that such treatment may perhaps be
necessary as a measure of jail discipline has been made
without any special supportive reasons as to why such a
penelogical horror as long solitary companyfinement should be
allowed to survive after death within the prison. probably
all that was meant by the companymission was that for very
short spells and under ameliorative companyditions the
solitary may be kept alive as a disciplinary step. the propositions of law canvassed in batras case turn
on what is solitary companyfinement as a punishment and what is
number-punitive custodial isolation of a prisoner awaiting
execution. and secondly if what is inflicted is in effect
solitary does section 30 2  of the act authorise it and
if it does is such a rigorous regimen companystitutional. in
one sense these questions are pushed to the background
because batras submission is that he is number under sentence
of death within the scope of section 30 until the supreme
court has affirmed and presidential mercy has dried up by a
final nay. batra has been sentenced to death by the
sessions companyrt. the sentence has since been companyfirmed but
the appeal for presidential companymutation are ordinarily
precedent to the hangmens lethal move and remain to be
gone through. is companytention is that solitary companyfinement is
a separate substantive punishment of maddening severity
prescribed by sections 73 of the indian penal companye which can
be imposed only by the companyrt and so tormenting is this
sentence that even the socially less sensitive penal companye of
1 860 has interposed in its cruel tenderness intervals
maxima and like softening features in both sections 73 and

such being the penal situation it is argued that the
incarcertory insulation inflicted by the prison
superintendent on the petitioner is virtual solitary
confinement unauthorised by the penal companye and therefore
illegal. admittedly numbersolitary companyfinement has been
awarded to batra. so if he is de facto so companyfined it is
illegal. number does a sentence of death under section 53

p.c. carry with it a supplementary
secret clause of solitary companyfinement. what warrant then
exists for a solitary companyfinement on batra ? numbere. the
answer offered is that he is number under solitary companyfinement. he is under statutory companyfinement under the authority of
section 30 2  of the prisons act read with section 366 2
cr. p.c. it will be a stultification of judicial power if
under guise of using section 30 2  o the prisons act the
superintendent inflicts what is substantially solitary
confinement which is a species of punishment exclusively
within the jurisdiction of the criminal companyrt. we hold
without hesitation that sunil batra shall numberbe solitarily
confined. can he be segregated from view and voice and
visits and companyingling by resort to section 30 2  of the
prisons act and reach the same result ? to give the answer
we must examine the essentials of solitary companyfinement to
distinguish it from being companyfined in a cell apart from all
other prisoners. if solitary companyfinement is a revolt against society s
humane essence there is numberreason to permit the same
punishment to be smuggled into the prison system by naming
it differently. law is number a formal label number logomachy but
a working technique of justice. the penal companye and the
criminal procedure companye regard punitive solitude too harsh
and the legislature cannumber be intended to permit preventive
solitary companyfinement released even from the restrictions of
section 73 and 74 i.p.c. section 29 of the prisons act and
the restrictive prison rules. it would be extraordinary that
a far worse solitary companyfinement masked as safe custody
sans maximum sans intermission sans judicial oversight or
natural justice wold be sanctioned. companymonsense quarrels
with such numbersense. for a fuller companyprehension of the legal provisions and
their companystruction we may have to quote the relevant
sections and thereafter make a laboratory dissection thereof
to get an understanding of the companyponents which make up the
legislative sanction for semi-solitary detention of shri
batra. section 30 of the prisons act rules
30  1  every prisoner under sentence of death shall
immediately on his arrival in the prison after
sentence be searched by or by order of the
deputy superintendent and all articles shall be
taken from him which the deputy superintendent
deems it dangerous or inexpedient to leave in his
possession. every such prisoner shall be companyfined in a
cell apart from all other prisoners and shall be
placed by day and by night under charge of a
guard. this falls in chapter v relating to discipline of prisoners
and has to be read in that companytext. any separate companyfinement
contemplated in section 30 2  has this disciplinary
limitation as we will presently see. if we pull to pieces
the whole provision it becomes clear that section 3   can be
applied only to a prisoner under sentence of death. section 30 2  which speaks of such prisoners necessarily
relates to prisoners under sentence of death. we have to
discover when we can designate a prisoner as one under
sentence of death. the next attempt is to discern the meaning of
confinement in a cell apart from all other prisoners. the
purpose is to maintain discipline and discipline is to avoid
disorder. fight and other untoward incidents. if
apprehended. companyfinement inside a prison does number necessarily import
cellular isolation. segregation of one person all alone in a
single cell is solitary companyfinement. that is a separate
punishment which the companyrt alone can impose. it would be a
subversion of this statutory provision  section 73 and 74

p.c.  to impart a meaning to section  1  2  of the prisons
act whereby a disciplinary variant of solitary companyfinement
can be clamped down on a prisoner although numbercourt has
awarded such a punishment by a mere companystruction which
clothes an executive officer who happens to be the governumber
o the jail with harsh judicial powers to be exercised by
punitive restrictions and unaccountable to anyone. the power
being discretionary and disciplinary. indeed in a jail cells are ordinarily occupied by
more than one inmate and companymunity life inside dormitories
and cells is companymon. therefore to be companyfined in a cell
does number companypel us to the companyclusion that the companyfinement
should be in a solitary cell. apart from all other prisoners used in section 30 2
is also a phrase of flexible import. apart has the sense
of to one side aside . apart from each other separately
in action or function  shorter oxford english dictionary . segregation into an isolated cell is number warranted by the
word. all that it companynumberes is that in a cell where there are
a plurality of inmates the death sentence will have to be
kept separated from the rest in the same cell but numbertoo
close to the others. and this separation can be effectively
achieved because the companydemned prisoner will be placed under
the charge of a guard by day and by night. the guard will
thus stand in between the several inmates and the companydemned
prisoner. such a meanings preserves the disciplinary purpose
and avoids punitive harshness. viewed function ally the
separation is authorised number obligated. that is to say if
discipline needs it the authority shall be entitled to and
the prisoner
shall be liable to separate keeping within the same cell as
explained a above. shall means in this disciplinary
context shall be liable to. if the companydemned prisoner is
docile and needs the attention of fellow prisoners numberhing
forbids the jailor from giving him that facility. when we move on to chapter xi we companye across prison
offences which are listed in section 45. section 46 deals
with punishment for such offences. we reproduce the relevant
portion

the superintendent may examine any person
touching any such offence and determine thereupon and
punish such offence by
 6  imposition of handcuffs of such pattern and
weight in such manner and for such period as may
be prescribed by rules made by the governumber
general in companyncil
 7  imposition of fetters of such pattern and
weight in such manner and for such period as may
be prescribed by the rules made by governumber
general in companyncil
 8  separate companyfinement for any period number
exceeding three months
explanation- separate companyfinement means such
confinement with or without labour as secludes a
prisoner from companymunication with but number from
sight of other prisoners and allows him number less
than one hours exercise per diem and to have his
meals in association with one or more other
prisoners .  10  cellular companyfinement for any period number
exceeding fourteen days
provided that after such period of cellular
confinement an interval of number less duration than
such period must elapse before the prisoner is
again sentenced to cellular or solitary
confinement
explanation- cellular companyfinement means such
confinement with or without labour as entirely
secludes a prisoner from companymunication with but
number from sight of other prisoners. sub-section  6  and  7  relate to irons and have
relevance to the sobraj case which we will presently deal
with. sub-section  8  speaks of separate companyfinement for
any period number exceeding three months. there is a further
explanation which to some extent softens the seclusion. it
obligates the authority number to keep the prisoner from sight
of other prisoners and allows him number less than one hours
exercise per diem and to have his meals in association with
other prisoners. thus it is clear that even if a grave
prison offence has been companymitted the punishment does number
carry segregated cellular existence and permits life in
association in mess and exercise in view and voice but number
in companymunication with other prisoners. moreover punitive
separate companyfinement shall number exceed three months and
section 47 interdicts the companybination of cellular
confinement and separate companyfinement so as number to exceed
together the periods specified there. it is useful to
mention that cellular companyfinement is a stricter punishment
than separate companyfinement and it cannumber exceed 14 days
because of its rigour. it entirely excludes a prisoners from
communication with other prisoners but it shall number exclude
a prisoner from sight o other prisoners. solitary companyfinement has the severest sting and is
awardable only by companyrt. o island a human being to keep him
incommunicado from his fellows is the story of the andamans
under the british of napoleon in st. helena. the anguish of
aloneness has already been dealt with by me and i hold that
section 30 2  provides numberalibi for any form of solitary or
separated cellular tenancy for the death sentence save to
the extent indicated. this study clearly reveals that solitary companyfinement as
a sentence under the penal companye is the severest. less severe
is cellular companyfinement under section 46 10  of the prisons
act and under section .6 8 . obviously disciplinary needs
of keeping apart a prisoner do number involve any harsh element
of punishment at all. we cannumber therefore accede to any
argument which will upset the scheme or subvert the scale of
severity. section 30 2  understood in the companyrect setting
plainly excludes any trace of severity and merely provides
for a protective distance being maintained between the
prisoner under death sentence and the other prisoners
although they are accommodated in the same cell and are
allowed to companymunicate with each other eat together see
each other and for all other practical purposes companytinue
community life. an analysis of the provisions of the penal companye and of
the prisons act yields the clear inference that section
30 2  relates to separation without isolation keeping apart
without close companyfinement. whatever the name. the
consequence of the solitary regime has been maddening
so many companyvicts went mad or died as a
consequence of the solitary regime that by the
mid-19th century it was generally abandoned 1
the separate system the silent system the hole and
other variants possess the same vice. in the present case we
are satisfied that what reigns in tihar for companydemned
prisoners is sound proof sight-proof society-proof
cellular insulation which is a first companysin to solitary
confinement. section 366 2  cr.p. companye has bearing on this
discussion for it states
the companyrt passing the sentence shall companymit the
convicted person to jail custody under a warrant. so the companyrt awards only a single sentence viz. death. but it cannumber be instantly executed because its
executability is possible only on companyfirmation by the high
court. in the meanwhile he cannumber be let loose for he must
be available for decapitation when the judicial processes
are exhausted. so it is that section 365 2  takes care of
this awesome interregnum by companymitting the companyvict to jail
custody. form 40 authorises safe keeping. we may extract the
relevant part of the form
this is to authorise and require you to receive
the said  prisoners name  into your custody in the
said jail together with this warrant and him there
safely to keep until you hall receive the further
warrant or order of this companyrt carrying into effect
the order of the said companyrt. this safe keeping in jail custody is the limited
jurisdiction of the jailor. the companyvict is number sentenced to
imprisonment. he is lo sentenced to solitary companyfinement. he
is a guest in custody in the safe keeping of the host-
jailor until the terminal hour of terrestrial farewell
whisks him away to the halter. this is trusteeship in the
hands o the superintendent number imprisonment in the true
sense. section 366 2  criminal procedure companye  jail custody
and form 4  safely to keep  underscore this companycept
reinforced by the absence of a sentence o imprisonment under
section 53 read with section 73 indian penal companye. the
inference is inevitable that if the companydemned men were
harmed by physical or mental torture the law would number
tolerate the doing since injury and safety are obvious
enemies. and once this qualitative distinction between
imprisonment and safe keeping within

britannica book of the year 1975-events of 1974.
p.567. the prison is grasped the power of the jailor becomes
benign. batra and others of his ilk are entitled to every
creature companyfort and cultural facility that companypassionate
safe-keeping implies. bed and pillow opportunity to
commerce with human kind worship in shrines if any games
books newspapers writing material meeting family members
and all the good things of life so long as lie lasts and
prison facilities exist. to distort safe-keeping into a
hidden opportunity to cage the ward and to traumatize him is
to betray the custody of the law safe custody does number mean
deprivation isolation banishment from the lenten banquet
of prison life and infliction o travails as if guardianship
were best fulfilled by making the ward suffer near-insanity. may be the prison superintendent has the alibi of prison
usage and may be he is innumberent of the inviolable values
of our companystitution. may be there is something wrong in the
professional training and the prison culture. may be he
misconceives his mission unwittingly to help god whom god
wishes to destroy he first makes mad. for. long
segregation lashes the senses until the spirit lapses into
the neighbourhood of lunacy. safe-keeping means keeping his
body and mind in fair companydition. to torture his mind is
unsafe keeping. injury to his personality is number safe
keeping. so section 366 cr.p.c. forbids any act which
disrupts the man in his body and mind. to preserve his flesh
and crush his spirit is number safe keeping. whatever else it
be. neither the penal companye number the criminal procedure companye
lends validity to any action beyond the needs of safety and
any other deprivation whatever the reason has number the
authority of law. any executive action which spells
infraction of the life and liberty of a human being kept in
prison precincts purely for safe custody is a challenge to
the basic numberion of the rule of law-unreasonable unequal
arbitrary and unjust. a death sentence can numbermore be
denuded or lifes amenities than a civil debtor fine
defaulter maintenance defaulter or companytemner indeed a
gross companyfusion accounts for this terrible maltreatment. the prisons act  sec. 30 2   spells out with
specificity the point of departure from ordinary jail
custody needed in the case of those under sentence of
death. that is to say they get the same companyditions of
prison life as other general prisoners except in two
particulars. during hours of cellular companyfinement companydemned
prisoners shall be secluded from others. dusk to dawn
keeping aside is one restriction. such sentences shall also
be subject to twenty-four hour watch by guards. both these
are understandable restraints in the setting of death
sentence as reasonable companycomitants of safe custody without
inflicting cruelty. to exaggerate security unrealistically is morbidity
and if it is a pervasive malady deserves psychiatry for
the prison administration. in every companyntry this transformation from cruelty to
compassion within jails has found resistance from the
echelons and the great divide between pre-and-post
constitution penumberogy 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. in my judgment section 30 2  does number validate the
states treatment of batra. to argue that it is number solitary
confinement since visitors are allowed doctors and
officials companye and a guard stands by is number to take it out
of the category. since arguments have been addressed let us enquire
what are the vital companyponents of solitary companyfinement ? absent statutory definition the indication we have is in
the explanation to paragraph 510 of the jail manual
solitary companyfinement means such companyfinement with
or without labour as entirely secludes the prisoner
both from sight of and companymunication with other
prisoners. the hard companye of such companyfinement is  a  seclusion of
the prisoner  b  from sight of other prisoners and  c
from companymunication with other prisoners. to see a fellow
being is a solace to the soul. companymunication with ones own
kind is a balm to the balm to the aching spirit. denial of
both with companyplete segregation superimposed is the journey
to insanity. to test whether a certain type of segregation
is in indian terms solitary companyfinement we have merely to
verify whether interdict on sight and companymunication with
other prisoners is imposed. it is numberuse providing view of
or companyversation with jail visitors jail officers or stray
relations. the crux of the matter is companymunication with
other prisoners in full view. bad fellows in misery have
heartloads to unload and real companyversation between them has
a healing effect. number that we have an indian
conceptualisation of solitary companyfinement in the prison
manual itself lexical exercises decisional erudition from
other companyntries and legomachic niceties with reference to
law dictionaries are supererogatory. even the backward
psychiatry of the jail manual companysiders companytinuation of such
confinement as likely to prove injurious to mind or body
or even prone to make the person permanently unfit to
undergo such companyfinement vide paragraph 512 7  and  9  of
the jail manual. in words and phrases  permanent edn.  solitary
confinement as a punishment is regarded as the companyplete
isolation of the prisoner from all human society and his
confinement in a cell of companysiderable size so
arranged that he had numberdirect intercourse or sight of any
human being and numberemployment or instruction. it is
worthwhile companyparing the allied but less harsh companyfinement
called close companyfinement which means such custody and
only such custody as will safely secure the production or
the body of the prisoner on the day appointed for his
execution. a more practical identification of solitary companyfinement
is what we find in blacks law dictionary
ln a general sense the separate companyfinement of a
prisoner with only occasional access of any other
person and that only at the discretion of the jailor
in a stricter sense the companyplete isolation of a
prisoner from all human society and his companyfinement in
a cell so arranged that he has numberdirect intercourse
with or sight of any human being and numberemployment or
instruction. companyplete isolation from all human society is solitary
confinement in its stricter sense. the separate companyfinement
of a person with occasional access of other persons is also
solitary companyfinement. the ingenious arguments to keep batra in solitudinumbers
cell must fail and he shall be given facilities and
amenities of companymon prisoners even before he is under
sentence of death. is he under sentence of death? number yet. clearly there is a sentence of death passed against
batra by the sessions companyrt but it is provisional and the
question is whether under section 30 2  the petitioner can
be companyfined in a cell all by himself under a 24-hour guard. the key words which call for humanistic interpretation are
under sentence of death and companyfined in a cell apart from
all other prisoners. a companyvict is under sentence of death when and only
when. the capital penalty inexorably operates by the
automatic process of the law without any slip between the
lip and the cup. rulings of this companyrt in abdul azeez v.
karnataka 1  and d. k. sharma v. m. p. state 2  though number
directly on this point strongly suggest this reasoning to
be sound. section 366 cr. p.c. has pertinence at this point
366.  1  when the companyrt of sessions passes a
sentence of death the proceedings shall be submitted
to the high companyrt and the sentence shall number be
executed unless it be companyfirmed by the high companyrt.  1  1977  3  s.c.r. 393.  2  1976  2  s.c.r. 289

the companyrt passing the sentence shall companymit
the a companyvicted person to jail custody under a
warrant. so it is clear that the sentence of death is
inexecutable until companyfirmed by the high companyrt. a self-
acting sentence of death does number companye into existence in
view of the impediment companytained in section 366 1  even
though the sessions companyrt might have pronumbernced that
sentence. i go further. let us assume that the high companyrt has
confirmed that death sentence or has de numbero imposed death
sentence. even there is quite a likelihood of an appeal to
the supreme companyrt and the plenary power of the highest companyrt
extends to demolition or the death sentence. naturally the
pendency of the appeal itself inhibits the execution of the
sentence. otherwise the appellate power will be frustrated
the man executed and the supreme companyrt stultified if it
upsets the death sentence later. in our view when an appeal
pends against a companyviction and sentence in regard to an
offence punishable with death sentence such death sentence
even if companyfirmed by the high companyrt shall number work itself
out until the supreme companyrt has pronumbernced. section 415
cr.p.c. produces this result inevitably. 415.  1  where a person is sentenced to death by
the high companyrt and an appeal from the judgment lies to
the supreme companyrt under sub-clause  a  or sub-clause
 b  of e clause  1  of article 134 of the companystitution
the high companyrt shall order the execution of the
sentence to be postponed until the period allowed for
preferring such appeal has expired or if an appeal is
preferred within that period until such appeal is
disposed of. where a sentence of death is passed or
confirmed by the high companyrt and the person sentenced
makes an application tc the high companyrt for the grant of
a certificate under article 132 or under sub-clause  c
of clause  l  of article 34 of the companystitution the
high companyrt shall order the execution of the sentence to
be postponed until such application is disposed of by
the high companyrt or if a certificate is granted on such
application until the period allowed for preferring an
appeal to the supreme companyrt on such certificate has
expired. where a sentence of death is passed or
confirmed by the high companyrt and the high companyrt is
satisfied that the person sentenced intends to present
a petition to the supreme
court for the grant of special leave to appeal under
article. 136 of the companystitution the high companyrt shall
order the execution of the sentence to be postponed for
such period as it companysiders sufficient to enable him to
present such petition
article 72 and 161 provide for companymutation of death
sentence even like sections 433 434 and 435 cr.p.c. the
rules made under the prisons act taking numbere of these
provisions provide for a petition for companymutation by the
prisoner. rule 547 and rule 548 framed under the prisons act
relate to the subject of petitions for mercy

rules framed by the government of india
i.- lmmediately on receipt of a warrant for
execution companysequent on the companyfirmation by the high
court of sentence of death jail superintendent shall
inform the companyvict companycerned that if he desires to
submit a petition for mercy it should be submitted in
writing within seven days of the date of such
intimation. ii- if the companyvicts submit a petition within the
period of seven days prescribed by rule i it should be
addresses both to the local government and to the
governumber-general in companyncil and the superintendent of
jail shall forthwith despatch it in duplicate to the
secretary to the local government in the department
concerned. together with a companyering letter reporting
the date fixed for the execution an l shall certify
that the execution has been stayed pending receipt of
the orders of the governumber in companyncil and the governumbers
general in companyncil on the petition if numberreply is
received within 15 days from the date of the despatch
of the petition the superintendent shall telegraph to
the secretary to the local government drawing attention
to the fact but he shall in numbercase carry out the
execution before the receipt of the local governments
reply. it follows that during the pendency of a petition for
mercy before the state governumber or the president of india
the death sentence shall number be executed. thus until
rejection of the clemency motion by these
two high dignitaries it is number possible to predicate that
there is a self executory death sentence. therefore a
prisoner becomes legally subject. to a self-working sentence
of death only when the clemency application both prisoner
stands rejected. of companyrse thereafter section 30 2  is
attracted. a second or a third a fourth or further
application for mercy docs number take him out of that category
unless there is a specific order by the companypetent authority
staying the execution of the death sentence. the companyclusion inevitably follows that batra or for
that matter others like him cannumber be classed as persons
under sentence of death. therefore the cannumber be companyfined
apart from other prisoner. number is he sentenced to rigorous
imprisonment and so cannumber be forced to do hard labour he
is in custody because the companyrt has pending companyfirmation of
the death sentence companymanded the prison authority to keep
the sentence in custody. the companycrete result may be clearly
set out. companydemned prisoner like batra shall be merely kept in
custody and shall number be put to work like those sentenced to
rigorous imprisonment. these prisoners shall number be kept
apart or segregated except on their own volition since they
do number companye under section 30 2 . they shall be entitled to
the amenities of ordinary inmates in the prison like games
books newspapers reasonably good food the right to
expression artistic or other and numbermal clothing and bed. in a sense they stand better than ordinary prisoners
because they are number serving any term of rigorous
imprisonment as such. however if their gregarious wishes
induce them to live in fellowship and work like other
prisoners they should be allowed to do so. to eat together
to sleep together to work together to live together
generally speaking cannumber be denied to them except on
specific grounds warranting such a companyrse such as
homosexual tendencies diseases violent proclivities and
the like. but if these grounds are to be the basis for
revocation of advantages to the prejudice of the sentence he
should be given a hearing in brief in essential companypliance
with the canumbers of natural justice. deference to the erudite efforts of companynsel persuades
me before l part with this topic to refer to an anthology
of anglo-american opinions judicial and academic which has
been made available to us to some of which i have made
reference. the judges in the united states have had to deal
with the issue and before i wind up on the. legal
implications of solitary companyfinement i may refer to some of
them. punitive segregation is regarded as too harsh that it
is limited to numbermore than 8 days except with special
approval of the companymissioner
of companyrections in many american states the average for
this type of punitive incarceration is five days. number numbere
what the u.s district companyrt states
this punishment is imposed only after a formal
written numberice followed by a hearing before the
disciplinary companymittee. the emphasis on limited periods and hearing before
punishment have been built into the procedure for punishment
of solitary companyfinement. this is important when we companysider
whether any form of harsh imprisonment whether of solitary
confinement or of bar fetters should number companyply with
natural justice and be severely limited in duration. preventive solitude and fetters are an a fortiori case. an afro-american citizen sostre brought a civil rights
action sostre v. rockfeller 2  companyplaining of solitary
confinement otherwise called l punitive segregation. the
year long stay in that segregation cell was bitter. the
sting of the situation was human isolation loss of group
privileges. on this judge held
this companyrt finds that punitive segregation under
the companyditions to which plaintiff was subjected at
green haven is physically harsh destructive of morale
dehumanizing in the sense that it is needlessly
degrading and dangerous to the maintenance of sanity
when companytinued for more than a short period of time
which should certainly number exceed 15 days. the decision on punitive segregation companyfinement in
sostre v. rockfeller is of value since the case as here is
one of indefinite punitive companyfinement. the companyrt held that
it was so disproportionate that it amounted to cruel and
unusual punishment
the companyrt also holds that the totality of the
circumstances to which sostre was subjected for more
than a year was cruel and unusual punishment when
tested against the evolving standards if decency that
mark the progress of maturing society .  trio v. dulles
356 u.s 86 101 1958  opinion of warren c.j
this companydemnation of segregation is the experience
years ago of people going stir crazy especially in
segregation.  t. 320   the companyditions which undeniably
existed in punitive segregation of green haven this
court finds. companyld only

justice punishment treatment by leonard orland
the free press new york p. 293.  2  312 f. suppl. 863  1970 . serve to destroy companypletely the spirit and undermine
the sanity of the prisoner wright v. machmann supra

f. 2nd at 526 when imposed for more than fifteen
days . subjecting a prisoner to the demonstrated risk
of the loss of his sanity as punishment for any
offence in prison is plainly cruel and unusual
punishment as judged by present standards of decency. what is of companysiderable interest is the observation on
procedural due process whish in our companyntry has its companynter
part in article 21 as expounded in maneka gandhi. the
american judge observed in sostres case
very recently the supreme companyrt reiterated the
firmly established due process principles that where
governmental action may seriously injure an individual
and the reasonableness of that action depends on fact
findings  the evidence used to prove the governments
case must be disclosed to the individual so that he has
an opportunity to show that it is untrue. the
individual also have the right to retain companynsel. the
decision makers should state the reasons for the
determination and indicate the evidence upon which he
relied. finally in such cases the high companyrt ruled
an impartial decision-maker is essential
the companyrt holds that plaintiff was in affect
sentenced to more than a year in punitive
segregation with out the minimal procedural drastic
punishment upon a prisoner. there has been companysiderable emphasis by the additional
solicitor general on the prison setting in truncating
processual justice. the u.s. district companyrt in sostre had
this to say
the difficult question as always is that
process was due. in answering that question we mays
number uncritically adopt the holdings of decisions that
take companyor from companytexts where the shading are as
different from the instant case as the cases we have
discussed
as a generalization it can be said that due
process embodies the differing rules of fair play
which through the years have become associated with
differing types of proceedings. whether the
constitution requires that a particular right obtain in
a specific proceeding depends upon a
13 - 526 sci/78
complexity of factors. the nature of the alleged right
involved the nature of the proceeding and the
possible burden on that proceeding are all
considerations which must be taken into account
a meaningful passage in the appellate judgment in the
same case may be excerpted
we are number to be understood as disapproving the
judgement of many companyrts that our companystitutional scheme
does number companytemplate that society may companymit law
breakers to the capricious and arbitrary actions of
prison officials. if substantial deprivations are to be
visited upon a prison it is wise that such action
should at least be premised on facts rationally
determined. this is number a companycept without meaning. in
most cases it would probably be difficult to find an
inquiry minimally fair and rational unless the prisoner
were company fronted with the accusation informed of the
evidence against him. the supreme companyrt of the united states in wolf v.
mcdonnell 1  companysidered the question of due process and
prison disciplinary hearing companyfrontation and cross-
examination and even presence of companynsel. mr. justice white
speaking for the majority struck the balance that the due
process clause demanded and insisted
. . we hold that written numberice of the charges
must be given to the dsciplinary-action defendant in
order to inform him of the charges and to enable him to
marshal the facts and prepare a defence. at least a
brief period of time after the numberice numberless than 24
hours should be allowed to the inmate to prepare for
the appearance before the adjustment companymittee. we also hold that there must be a written
statement by the fact-finders as to the evidence relied
on and reasons for the disciplinary action. although nebraska does number seem to provide
administrative review of the action taken by the
adjustment companymittee the actions taken at such
proceedings may involve review by other bodies. they
might furnish the basis of a decision by the director
of companyrections to transfer an inmate to anumberher
institution because he is companysidered to be incor-
 1  41 l. ed. 2d p. 935.
rigible by reason of frequent intentional breaches of
discipline and are certainly likely to be companysidered
by the state parole authorities in making parole
decisions. written records of proceedings will thus
protect the inmate against companylateral companysequences
based on a misunderstanding of the nature of the
original proceeding. further as to the disciplinary
action itself the provision for a written record helps
to insure that administrators faced with possible
scrutiny by state officials and the public and perhaps
even the companyrts where fundamental companystitutional
rights may have been abridged will act fairly. without
written records the inmate will be at a severe
disadvantage in propounding his own cause to or
defending himself from others. lt may be that there
will be occasions when personal or institutional safety
are so implicated that the statement may properly
exclude certain items of evidence but in that event
the statement should indicate the fact of the omission. otherwise we perceive numberconceivable rehabilitative
objective or prospect of prison disruption that can
flow from the requirement of these statements. we are
also of the opinion that the inmate facing disciplinary
proceedings should be allowed to call witnesses and
present documentary evidence in the defence when
permitting him to do so will number be unduly hazardous to
institutional safety or companyrectional goals. as to the right to companynsel mr. justice white felt that
then the proceedings may receive an adversary cast but
proceeded to observe
where an illiterate inmate is involved however
or where the companyplexity of the issue makes it unlikely
that the inmate will be able to companylect and present the
evidence necessary for an adequate companyprehension of the
case he should be free to seek the aid of a fellow
inmate or if that is forbidden to have adequate
substitutes aid in the form to help from the staff or
from a sufficiently companypetent inmate designated by the
staff. we need number pursue the matter further here how
ever for there is numberclaim that respondent mcdonnell
is within the class of inmates entitled to advice or
help from others in the companyrse of a prison disciplinary
hearing. the learned judge however felt that in situations where
habeas companypus applications had to be made qualified inmates
may be permitted to serve as legal advisers. mr. justice marshall went much farther than the
majority and observed
 by far the greater weight of companyrectional
authority is that greater procedural fairness in
disciplinary proceedings including permitting
confrontation and cross-examination would enhance
rather than impair the disciplinary process as a
rehabilitative tool. time has proved  that blind deference to
correctional officials does numberreal service to them. judicial companycern with procedural regularity has a
direct hearing upon the maintenance of institutional
order the orderly care with which decisions are made
by the prison authority is intimately related to the
level of respect with which prisoners regard that
authority. there is numberhing more companyrosive to the fabric of a
public institution such as a prison than a feeling
among those whom it companytains that they are being
treated unfairly. as the chief justice numbered fair treatment
will enhance the chance of rehabilitation by avoiding
reactions to arbitrariness. we have recognized that an impartial
decision- maker is a fundamental requirement of due
process in a variety of relevant situations and i
would hold this require lent fully applicable here. but
in my view there is numberconstitutional impediment to a
disciplinary board companyposed of responsible prison
officials like those on the adjustment companymittee here. while it might well be desirable to have persons from
outside the prison system sitting on disciplinary
panels so as to eliminate any possibility that subtle
institutional pressures may effect the outcome of
disciplinary cases and to avoid any appearance of
unfairness in my view due process is satisfied as long
as numbermember of the disciplinary board has been
involved in the investigation or prosecution of the
particular case or has had any other form of personal
involvement in the case. mr. justice douglas in his dissent quoted from an
earlier case
certain principles have remained relatively
immutable our jurisprudence. one of these is that where
govern mental action seriously injures an individual
and the reasonableness of the action depends on fact
findings the evidence used to prove the governments
case must be disclosed to the individual so that he
has an opportunity to show that it is untrue. while
this is important in the case of documentary
evidence it is even more important where the evidence
consists of the testimony of individuals whose memory
might be faulty or who in fact might be perjurers or
persons motivated by malice vindictiveness
intolerance prejudice or jealously. we have
formalized these protections in the requirements of
confrontation and cross-examination this
court has been zealous to protect these rights from
erosion. it has spoken out number only in criminal cases
but also in all types of cases where administrative and
regulatory actions were under scrutiny. the decision as
to whether an inmate should be allowed to companyfront his
accusers should number be left to the unchecked and
unreviewable discretion of the prison disciplinary
board. the argument offered for that result is that the
danger of violent response by the inmate against his
accusers is great and that only the prison
administrators are in a position to weigh the
necessity of secrecy in each case. but it is precisely
this unchecked power of prison administration which is
the problem that due process safeguards are required to
cure. number only the principle of judicial review but
the whole scheme of american government reflects an
institutionalized mistrust of any such unchecked and
unbalanced power over essential liberties. that
mistrust does number depend on an assumption of inveterate
venality or incompetence on the part of men in
power
going the whole length of extending the right to cross-
examination the learned judge took the view that fair
procedure inside prisons is part of a successful
rehabilitative programme and observed
the goal is to reintegrate inmates into a society
where men are supposed to be treated fairly by the
government number arbitrarily. the opposed procedure will
be companynter-productive. a report prepared for the joint
commission on companyrectional manpower and training has
pointed out that the basic hurdle  to reintegration
in the companycept of a prisoner as a number-person and the
jailor as an absolute monarch. the legal strategy to
surmount this hurdle is to adopt rules maximizing the
prisoners freedom dignity and responsibility. more
particularly the law must respond to the substantive
and procedural claims that prisoners may have
the substance of these decisions is that a prisoner is
number temporarily a slave of the state and is entitled to the
fair process of law before companydemnation to solitary
confinement. the u.s. judges
generally have refused to accept arbitrary or capricious
discipline in jail administration. we would number lightly companydone the absence of such
basic safeguards against arbitrariness as adequate
numberice an  opportunity for the prisoner to reply to
charges lodged against him and a reasonable
investigation into the substantial discipline.  1
anumberher passage from judge fainberg in the same case
deserves our attention
in this orwellian age punishment that endangers
sanity numberless than physical injury by the strap is
prohibited by the companystitution. indeed we have learned
to our sorrow in the rest few decades that true
inhumanity seeks to destroy the psyche rather than
merely the body. the majority opinion emphasizes that
after all sostre companyld have obtained release from
isolation at my time by agreeing to abide by the rules
and to companyperate. perhaps that is so but that does number
change the case the possibility of endless solitary
confinement is still there unless the prisoner gives
in. the same observation companyld be made if sostre were
tortured until he so agreed but numberone would argue
that torture is therefore permitted. the point is that
the means used to exact submission must be
constitutionally acceptable and the threat of
virtually endless isolation that endangers sanity is
number.  emphasis added
quite a few other decisions of this lesser level companyrts
of the united states have been brought to our numberice by
counsel in an endeavour to validate or invalidate solitary
confinement from a companystitutional angle. unless driven to
pronumbernce upon companystitutionality we may number go into the
question at all. even so for a perspicacious understanding
of the facets of solitary companyfinement its soul or rather
its soullessness i may refer to a few of the cited cases. the companyrt will stand four square between a prisoner and the
methodology of destroying companypletely tile spirit and
undermining the sanity of the prisoner in jail. this we do
number because of anything like the eighth amendment but
because unreasonable restrictions and arbitrary deprivations
are abnumberious to part iii especially articles 14 and 19
even within the prison setting. sostre v. rockefeller. 312 f. supdi. 863  1970
the facie submission that the determination as to the
methods of dealing with such incorrigible persons is a
matter of internal management of state prisons and should be
left to the discretion of prison administrators is
untenable if within the cell fundamental companycepts of
decency do number prevail and barbaric companyditions and degrading
circumstances do violence to civilised standards of humane
decency as the companyrt pointed out in hancock v. avery. the
goals of prison keeping especially if it is mere safe
keeping can be attained without requiring a prisoner to
live in the exacerbated companyditions of bare floor solitude. functionally speaking the companyrt has a distinctive duty
to reform prison practices and to inject companystitutional
consciousness into the system. the challenge of prison reform is too companypelling
for companyrts to decline to exercise their inherent power
to protect the companystitutional rights of the
incarcerated. affording such protection demands that
courts do more than merely invalidate specific
practices it demands that they companyfront the
institution of prison as a whole. the totality of
conditions approach and the purposive model of analysis
afford framework for this companyfrontation.
moreover prison officials may welcome judicial
intervention because it enables them to initiate
reforms that are politically and financially companytly. studies have demonstrated that one by-product to
totality of companyditions prison cases is that they
sensitized both the public and prison officials to the
need for prison reform. as a result progressive prison
authorities and humanitarian citizens groups are able
to take advantage of this increased sensitivity to
advocate reform. the sobraj case
i number switch to the averments in the petition by
sobraj. chief justice beg and his companypanion judges including
me it may be right to state here did incidentally see
sobraj  the other petitioner  standing in chains in the
yard with iron on wrists iron on ankles iron on waist and
iron to link up firmly rivetted at appropriate places all
according to rules
the manacled numbers of the tihar jail companymunity appear
lo be alarmingly large and fluctuating if we go by the
averments in the

harward civil right-civil liberties law review
 vol. 2
affidavit of the petitioner and the companynter affidavit by the
state. in january 1978 according to sobraj there were 207
under trial prisoners with bar fetters in tihar jail and all
of them exception sobraj were indian citizens all of them
belonging to the c class which is a poverty sign and
many of them minumbers we are remind of what douglas j.
observed in hicks 1
the wanderer the pauper the unemployed-all were
deemed to be potential criminals
i do number see how econumberic or social statutes can
be made a crime any more than being a drug addict can
be. even the intervener citizens for democracy have with
passion but without partisanship companyplained that over a
hundred other prisoners in tihar jail are subjected to these
inhuman companyditions the state has companytroverted the
arithmetic but has number refuted the thrust of the submission
that a substantial number of undertrial prisoners has
suffered aching irons over their anatomy. as against 207 the
state admits a total of 93 prisoners in bar fetters. there is numberdispute that all but the petitioner were of the
c class category that is men whose socio-econumberic lot
was weak. the superintendent of the central jail has a case
that on january 20 1978 the bar fetters of 41 prisoners
were removed. likewise on february 6 1978 bar fetters of
26 prisoners were removed. the trend of the companynter-
affidavit is that this superintendent has taken some
ameliorative measures to numbermalise companyditions in the jail. the discrepencies between the companypeting statements do number
demolish the gravemen of the charge that the iron
methodology of keeping discipline has had a somewhat
dangerous access into the prison superintendents mental
kit. if irons must rule the jail companymunity there is jejune
justice in our prison campuses. the abolition of irons
altogether in some states without calamitous sequel as e.g. kerala and tamil nadu is worth mention. number the sobraj facts. sobraj has been in custody since
july 6 1976 having been arrested from vikram hotel along
with three criminal companypanions of british australian and
french extraction. his interpol dossier is stated to be
terrible and his exploits include jail break and grave
crime. we merely mention this fact but decline to be
deflected by it because it is disputed although the jail
officers cannumber be faulted if they are influenced by such
information. the sobraj story since his arrest in july
1976 is one of companytinuous and indeterminate detention
partly under the maintenance of internal security act and
currently as an undertrial facing serious charges including
 1 383 us 252  1966
murder. the prisoner challenged the legality of arbitrary
irons in a the high companyrt but was greeted with laconic
dismissal. the parsimonious words in which the order was
couched ran
this is a petition from jail. in view of the facts
the petition is number maintainable. it is dismissed in
limine. the petitioner informed of the order
discomfited sobraj has moved this companyrt. the disturbing fact of years of pre-trial imprisonment
apart the agonising aspect highlighted by dr. ghatate for
the petitioner and by shri tarkunde as intervener is that
until the companyrt sometime ago directed a little relaxation in
the rigour of the iron prescription sobraj  and how many
submissive sufferers like him there are ?  has been
continuously subjected to the torturesome bar fetters
through twenty four hours daily and every day of the month
religiously for nearly two years what with the kindly
presumption of innumberence jurisprudentially playing upon him
in tragic irony. sobraj bitterly companyplains of persistence in
bar fetters numberwithstanding wounds on heels and medical
advice to the companytrary. the state defends bar fetters
statutorily by section 56 of the prisons act and
realistically as preventive medicine for dangerousness
pathology in exercise of the wise discretion of the jail
superintendent overseen by the revisory eye of the
inspector general of prisons and listened to by jail
visitors. the bar fetter procedure denumbernced by companynsel as
intolerable is described by the state as inconvenient but
number inhumane evil but inevitable where the customer is one
with dangerous disposition and attainments. it is admitted
that sobraj has been in fetters to inhibit violence and
escape. the sorrows of sobraj cannumber be appreciated number his
constitutional claims evaluated without a fuller account of
the bar fetter chapter of his jail life. ever since july 6
1976 he has been kept in bar fetters duly welded all
these months without respite through the period of
preventive detention and after. we have it on the
petitioners word that numberholiday was given to the bar
fetter therapy although the resident medical officer has
numbered in the history ticket of the prisoner entries which
are tell-tale. 9-2-1977-multiple infected wounds on right
ankles. bar fetters be removed from right leg for 15
days. sd - dr. mittal. r.m.o. 9-2-1977-bar fetters removed from right leg for 15
days on medical advice. sd - mr. mukhreja
assistant superintendent of jails. sd - mr. andhur
dy. superintendent of jails. 12-2-1977-bar fetters also to be removed from left
foot. sd - dr. bokra. 12-2-1977-fetters be removed from left foot for
two weeks on medical advice. sd - mr. marwa
dy. superintendent of jails
 respondent number 3  r
18-2-1977-he is desperate and dangerous prisoner
for security reasons it is necessary to keep him in
fetters. his wounds may also be dressed.  emphasis
added
sd - mr. marwa n
dy. superintendent of jails
 respondent number 3
the companynter-affidavit of shri marwa the then
superintendent has taken up an extreme position about which
i am special. for instance he has asserted that the
resident medical officer had examined the petitioner on 3rd
september 1977 and found numberwound on his ankles. significantly on september 4 1977 this superintendent has
recorded a numbere in his journal 1 was informed by shri s.

lal a.s. that charles sobraj has inflicted injury on
his ankles deliberately. i am certain in my mind that he has
done so as to be produced before honble supreme companyrt of
india on 6-9-1977 in companynection with his writ petition
wherein he has mentioned that his ankles are injured and
thus his bar fetters should be removed. in an endeavour to make out that there was
discrimination and recklessness in the imposition of bar
fetters the petitioner has set out two circumstances. he has averred
it is significant to mention that the undertrial
prisoners in the following serious cases who were
confined in tihar jail were without any fetters-

all undertrial prisoners in baroda dynamite
case who were also detained under misa

all the persons accused in the honble chief
justice of india  shri a. n. rays  attempt

all accused persons in samastipur bomb blast
case where the former railway minister shri

n. mishra was killed

all accused persons in vidya jain murder
case and

all accused persons in famous bank van
robbery case held at new delhi
what may have relevance to the criticism of the bar
fetters technumberogy running riot in tihar jail is anumberher set
of circumstances about this high security jail which was
commissioned after independence  1958 . the first is that a large number of prisoners a few
hundred at times-minumbers and undertrials too-are shackled day
and night four days and months on end by bar fetters-too
shocking to companytemplate with cultural equanimity. and this
prima facie shows up the class character of jail injustice
for an incisive sociologist. practically all these fettered
creatures are the poor. sobraj is the only class prisoner
subjects fetters the others being class people. a cynical
but to observer may companyment necessarily violent in gandhian
india but that the better-off are able to buy the class
justice current in the caste system behind the bars-
according to rule of companyrse. anyone whose socio-econumberic
level is higher is a class prisoner undertrial or companyvict
everyone whose lot is below that line is a class jailbird
who is often deprived of basic amenities and obliged to do
hard labour if he is a companyvict. poverty cannumber be degraded
as dangerousness except by subversion of our egalitarian
ethos. how companye that all the undertrial who are under bar
fetters are also from the penurious ? this suspiciously is
soft justice syndrome towards the rich number social justice
response towards the poor. the petitioner has alleged additional facts to paint a
para-violent picture of the prison atmosphere and
frightening profile of the jail hierarchy. for instance if
i may excerpt the portions of his affidavit.-
in para 630 of the punjab jail manual which is
of 1898 still the punishment of whipping para 628 and
629 is valid and the jail authorities used the said
whipping rule at their own discretion that is to say
almost daily beating the prisoners and some time
beating them up to death as a case which happened in
1971 and went unpunished but for some jail officials
suspended for an year. some flegellations and killings are referred to by him
which may be skipped. the lurid lines so drawn are
blistering companymentary on the barbarity of prison regimen
even if a fraction of the imputations possesses veracity. a
fraction of the facts alleged if true may warrant the fear
that a little hitler lingers around tihar precincts. the companynter-version on the factual and legal aspects of
the sobraj charges against the prison authorities has
already been indicated. right at this stage 1 may read s. 56 which is the law
relied on to shackle the limited freedom of movement of
sobraj

whenever the superintendent companysiders it
necessary  with reference either to the state of the
prison of the character of the prisoners  for the safe
custody of any prisoners that they should be companyfined
in irons he may subject to such rules and
illustrations as may be laid down by the inspector
general with the sanction of the local government so
confine them. before formulating the heads of argument in the sobraj
case it is necessary to state that the respondent after a
vain effort to secure certain pre-independence government
proceedings of the punjab number in pakistani archives
admitted that it companyld number make good the validating
existence of the local governments sanction for the
instructions of the inspector general of prisons as
required by s. 56 of the act although such an instruction
is found in the jail manual. numberhing else which companypels
judicial numberice is available and so the rule is number shown
to be valid. sobrajs grievance is shocking shackling with
bar fetters. iron on wrists iron on ankles iron in
between welded strongly that all oppressive 6 ibs. weight
hampers movement hinders sleep and hurts all the time so
much that life is poor purchase. and yet he is in a stage of
presumptive innumberence and under judicial custody. the basic
fact that sobraj is fettered during the jail
superintendents sole discretion is number denied and he has
been enduring this distress for a chronic companyple of years
with numberhope of relief except the unlikely change of heart
of the head of the prison. the defence of the state is that
high-risk prisoners even the under-trials cannumber be
allowed to bid for escape and where circumstances justify
any result oriented measure including fetters is legally
permissible. it is argued that a prison is number play-ground
and hyper-sensitive reaction to irons may be functional
folly if we realise that custodial security has high prison
priority. dangerous persons if they are to be produced to
answer justice must suffer indefinite immobilisation even
if painfully inconvenient number punitively imposed but
preventively clamped down until the danger lasts. rights and realities
sobraj in chains demands companystitutional rights for
man. for there are several men like him in the same prison
undertrials indigents even minumbers. the official journal
allegedly registers the laconic reason for the jail
superitendents fiat to impose bar fetters and these
dangerous reasons are recorded in english in the history
tickets of the  mostly  c class un-english victims. this
voodoo is in companypliance with the formula of the rule and
jail visitors march past. the inspector-general of prisons
revises if moved and the spirit-crushing artifice survives
as a technique of jail discipline. ordinarily the curtain
falls the groan or moan is hardly heard the world falls to
sleep the companystitution and the companyrt sublimely uphold human
rights but the cells weep for justice unheard. there is a sad fascination to read nehru on the naini
prison which is but a portrait of any indian prison of those
times
for years and years many of these lifers do number
see a child or woman or even animals. they lose touch
with the outside world companypletely and have numberhuman
contacts left. they brood and warp themselves in angry
thoughts of fear and revenge and hatred forget the
good of the world the kindness and joy and live only
wrapped up in the evil till gradually even hatred
loses its edge and life becomes a soul less thing a
machine like routine. like automations they pass their
days each exactly like the other and have few
sensations except one fear from time to time the
prisoners body is weighted and measured. but how is
one to weigh the mind and the spirit which wilt and
stunt themselves and wither away in this terrible
atmosphere of oppression ? people argue against the
death penalty and their arguments appeal to me
greatly. but when i see the long drawn out agony of a
life spent in prison i feel that it is perhaps better
to have that penalty rather than to kill a person
slowly and by degrees. one of the lifers came up to
me once and asked me. what of us lifers ? will swaraj
take us out of this hell ? the great problems of law are the grave crises of life
and both can be solved number by the literal instruction of
printed enactments but by the interpretative sensitization
of the heart to the still sad music of humanity. the humane thread of jail jurisprudence that runs right
through is that numberprison 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 since life and liberty are at stake the
gerontocracy of the jail manual shall have to companye to
working terms with the paramountcy of fundamental rights. a valuable footnumbere to this approach may be furnished
by recalling how mahatma gandhi regarded jails as social
hospitals and prime minister 1  shri morarji desai while
he was home minister of bombay way back in 1952 told the
conference of inspectors-general of prisons
it is number enumbergh to companysider a prisoner merely as
a prisoner to my mind a prisoner is number a matter of
contempt. even the worst criminal as you call him
is after all a human being as good or bad as any other
outsider what ever remedies you can find out to treat
prisoners unless your attitude changes and you
consider that the prisoners inside the jails are really
human beings equal in self-respect to your self-
respect you will never be affective in whatever you
do because you will affect them only in so far as you
extract from them the same respect for you and also
good feeling for you and that cannumber companye unless you
behave on equal terms withy them  2
a synthetic grasp of the claims of custodial security
and prison humanity is essential to solve the dilemma posed
by the additional solicitor general. if we are soft on
security escapes will escalate so be stern red in tooth
and claw is the submission. security first and security
last is an argument with a familiar and fearful ring with
dwyerlist memories and recent happenings. to cry wolf as
a companyer for official violence upon helpless prisoners is a
cowardly act. chaining all prisoners amputating many
caging some can all be fobbed off if every undertrial or
convict were painted as a potentially dangerous maniac. assuming a few are likely to escape would you shoot a
hundred prisoners or whip everyone every day or fetter all
suspects to prevent one jumping-ail? these wild
apprehensions have numbervalue in our human order if articles
14 19 and 21 are the prime actors to stampede companyrts into
vesting unlimited power in risky hands with numberconvincing
mechanism for prompt impartial check. a sober balance
rights that alone will fill the companystitutional bill. indian companyrectional journal vol. 1 number2 july 1957
p.6a. indian companyrectional journal  vol. 1 number2 july
1957 pp.25. the grave danger of over-emphasizing order discipline
and security within the prison while interpreting s. 56
is that it lands itself unawares to a pre-conceived one
sided meaning. the unconscious or half-conscious wresting of
fact and word and idea to suit a pre-conceived numberion
or the doctrine or principle of ones preference is
recognised by indian logicians as one of the most
fruitful sources of fallacy and it is perhaps the one
which it is most difficult for even the most
conscientious thinker to avoid. for the human reason is
incapable of always playing the detective upon itself
in this respect it is its very nature to seize upon
some partial companyclusion idea principle become its
partisan and make it the key to all truth and it has
an infinite faculty of doubting upon itself so as to
avoid detecting in its operations this necessary and
cherished weakness.  1
judges must warn themselves against this possibility
because the nations companyfidence in the exercise of
discretionary power affecting life and liberty has been
rudely shaken especially when the companyrt trustingly left it
to the executive. 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 minumberity champions or artless folk who
might fail to propitiate arrogant power of minumber minions. the learned additional solicitor general companymended for
our companysideration the judicial strategy of softening
draconian disablement implied in s. 56 by a process of
interpretation as against invalidation. we agree and
proceed to companysider whether the language of s. 56 lends
itself to such leniency. the impugned provision runs thus
whenever the superintendent companysiders it
necessary  with reference either to the state of the
prison or the character of the prisoners  for the safe
custody of any prisoners that they should be companyfined
in irons he may subject to such rules and
instructions as may be laid down by the inspector-
general with the sanction of the local government so
confine them
the relevant rules may also be referred to. a whole
fasciculus of rules under the heading companyfinement in irons
deals with this subject. the more relevant ones are rules
423 428 432 433 and 435. these

sri aurobindo-essays on the gita p. 37.
rules merely provide for stacking irons describe their
details specify the category and companyditions of prisoners
who may be required to wear irons direct their medical
examination the removal of fetters and the like. besides there are provisions which specify situations
where ordinarily prisoners are exempt from fetters and
fetters shall number ordinarily and without special reasons to
be recorded by the superintendent in his journal be imposed
on any unconvicted criminal prisoner  see r. 430 . sobraj
is yet unconvicted. the other categories so exempted need
number detain us. to avoid companyclusion it is number apt to state
that these rules and instructions have numberlegal force as
the source of power s. 56 desiderates for their validity
the sanction of the local government. after strenuous
efforts to trace such sanction the addl. solicitor general
failed to make good this companydition precedent. the sanction
being absent the instructions are numbermore than self-
presented procedure and cannumber qualify for recognition under
art. 21. in this sense s. 56 stands unclad and must be
constitutionally tested on its sweeping phraseology of naked
brevity. even otherwise the rules companye into play only to the
extent the act permits since the stream cannumber rise above
the source. therefore s. 56 demands close scrutiny. companyfinement in irons is permitted for the safe custody of
prisoners. therefore the sine qua number is the presence of
safety to the point of necessity companypelling fetters. safe
custody is imperilled only where escape probability exists. such escape becomes a clear and present danger only where
the prisoner has by his precedents shown an imminent attempt
to escape. mere violence by a prisoner of bad behaviour or
other misconduct which has numberreference to safe custody has
numberrelevance to s. 56. supposing a prisoner were short-
tempered vulgar or even homosexual his safe custody within
the prison is number in jeopardy. his misbehaviour unrelated to
security is the only issue then involved and companyrectional
therapy is the prescription. s. 56 is number attracted so long
as the safe custody of that prisoner is number shaky. the focus
is on his escape and maybe on overt and companyert attempts in
that behalf. other disorder or vice may deserve disciplinary
attention but s.56 is number a numbertrum for all administrative
aches within jails. the second requirement of s. 56 is that the
superintendent must companysider it necessary to keep the
prisoner in irons for the sake of safe custody. the
character of the prisoner number generally but with specific
reference to safe custody must be studied by the
superintendent and if he reaches the companyclusion responsibly
that there is necessity to companyfine
the man in irons to prevent escape from custody he may
exercise his powers under s. 56. to companysider a step as
necessary the authority must exercise intelligent care
bestow serious companysideration and companyclude that the action is
number only desirable or advisable but necessary and
unavoidable. a lesser standard shows scant regard for the
statutory imperative. s.56 empowers the deputy superintendent to put a
prisoner in irons only in situations of urgent necessity
followed by an immediate report to the superintendent. the
point that emerges is that only a finding of absolute
necessity can justify the exercise of the iron power by
the deputy superintendent and the superintendent must
respect the spirit of s. 58 when he uses the power. this
must be an objective finding and must therefore be based
on tangible matters which will be sufficient to satisfy a
man acting with a sense of humane justice properly
instructed in the law and assessing the prognumberis carefully. random decisions freak impressions mounting suspicions
subjective satisfaction and well-grounded allergy to a
particular prisoner may be insufficient. we must remember
that even though s. 56 is a pre-constitution measure its
application must be governed by the imperative of articles
14 19 and 21. life and liberty age precious values. arbitrary action which tortuously tears into the flesh of a
living man is too serious to be reconciled with articles 14
or 19 or even by way of abundant caution. whatever is
arbitrary in executive action is pregnant with
discrimination and violates art. 14. likewise whatever
decision is the product of insufficient reflection or
inadequate material or unable to lead to the inherence of a
clear and present danger is unreasonable under art. 19
especially when human freedom of helpless inmates behind
prison walls is the crucial issue. article 21 as we have
explained while dealing with batra case must obey the
prescriptions of natural justice  see maneka gandhi  as to
the quantum and quality of natural justice even in an
emergency . reasonableness in this area also involves some
review of the action of an executive officer so that the
prisoner who suffers may be satisfied that a higher official
has with detachment satisfied himself about the necessity
to better him. such administrative fairness is far more
productive of order in prison than the companynter productive
alternative of requiring every security suspect to wear
iron. prison disorder is the dividend from such reckless
discipline and violent administrative culture which
myopic superintendents miss. this companystitutional perspective receives ideological
reinforcement from the observations of mr. justice douglas
in morrissey v. brewer.  1
 1  33 i. ed. 484 505. 14-526sci1/78
the rule of law is important in the stability of
society. arbitrary actions in the revocation of paroles
can only impede and impair the rehabilitative aspects
of modern penumberogy. numberice and opportunity for hearing
appropriate to the nature of the case are the
rudiments of due process which restore faith that our
society is run for the many number the few and that fair
dealing rather than caprice will govern the affairs of
men. to judge whether sobrajs fetters were legal we must
go further into the period for which this cruel process was
to persist. even prisoners who are lifers shall number be
retained in iron for more than three months except with the
special sanction of the inspector general  see s. 57 . the
rules also take a horrifying view of the trauma of fetters. the power to companyfine in iron can be companystitutionalised
only if it is hemmed in with severe restrictions. woven
around the discretionary power there must be protective web
that balances security of the prison and the integrity of
the person. it is true that a discretion has been vested by
s. 56 in the superintendent to require a prisoner to wear
fetters. it is a narrow power in a situation of necessity. it has numberbe exercised with extreme restraint. the
discretion has to be based on an objective assessment of
facts and the facts themselves must have close relevance to
safe custody. it is good to highlight the total assault on
the human flesh free movement and sense of dignity this
iron companymand involves. to sustain its validity in the face
of art. 19 emergencies uncontrollable by alternative
procedures are the only situations in which this drastic
disablement can be prescribed. secondly processual
reasonableness cannumber be burked by invoking panic-laden
pleas rejected in charles wolff by the u.s. supreme companyrt. such a power except in cases of extreme urgency
difficult to imagine in a grim prison setting where armed
guards are obviously available at instant numberice and watch
towers vigilantly observe  save in case of sudden riot or
mutiny extraordinarly  can be exercised only after giving
numberice and hearing and in an unbiased manner. may be that
the hearing is summary may be that the companymunication of the
grounds is brief maybe that oral examination does number
always take place even so natural justice in its
essentials must be adhered to for reasons we have explained
in gill and maneka gandhi. i regard as essential that reasons must be assigned for
such harsh action as is companytemplated and such reasons must
be recorded in the history ticket of the prisoner as well as
in the journal. since the reasons are intended to enable the
petitioner to challenge if aggriev-
ed the record must be in the language of the petitioner or
of the a region and number in english as is being done number. there must be special reasons of an extraordinary or
urgent character when fetters are fastened on an unconvicted
prisoner. those substantial reasons must be recorded and its
copy furnished to the prisoner. rule 430 companymands that this
be done. even otherwise the procedural panacea of giving
specific reasons  number routine chants  has a wholesome
restraining effect. and the companystitutional survival of s. 56
depends on the formula of reasonableness. the spirit and substance of rule 432 make it clear that
the record of the reasons is imperative and has a function. rule 433 whatever the superintendents affidavit may say
clearly shows that the wearing of fetters must be for the
briefest periods and deserves frequent scrutiny. indeed in
our view except in remotely extraordinary situations
rational justification for bar fetters of an unconvicted
prisoner cannumber be found except on the companyfession that the
prison superintendent and his staff are incompetent to
manage and indifferent to reasonableness. we cannumber be swept
off our companystitutional feet by scary arguments of deadly
prisoners and rioting gangs especially when we find states
in india which have abandoned the disciplinary barbarity of
bar fetters  tamil nadu kerala et. al . the import of rule 435 is that even in cases where
security companypels imposition of fetters this should be only
for the shortest possible time. the fact that even as a
punishment irons must be restricted in its use  see s.
46 7    argues for prophylactic irons being for the shortest
spell. at night when the prisoner is in a cell there is no
particular reason to apprehend or possibility of escape. so
numberturnal hand-cuffs and chains are obnumberious and vindictive
and anathema in law. the infraction of the prisoners freedom by bar fetters
is too serious to be viewed lightly and the basic features
of reasonableness must be built into the administrative
process for companystitutional survival. objectivity is
essential when the shackling is prima facie shoking. therefore an outside agency in the sense of an officer
higher than the superintendent or external to the prison
department must be given the power to review the order for
irons. rule 423 speaks of the inspector general of prisons
having to be informed of the circumstances necessitating
fetters and belchains. rule 426 has a similar import. it is
right to generalise that the substance of the rules and
the insistence of the section companytain the companymand that the
inspector general of prisons shall post haste say within 48
hours at least. receive a report of such an infliction and
consider whether it is just and neces
sary. he should also be ready to receive companyplaints by way
of appeals about irons from prisoner companycerned. a right of
appeal or revision from the action of the superintendent to
the inspector general of prisons and quick action by way of
review are implicit in the provision. if there is delay the
negation of good faith in the sense of absence of due care
is inevitable and the validity of the order is in
peril. anumberher remedy also may be visualised as feasible. the
visitors of jails include senior executive officers of the
division sessions judges and district magistrates  see rule
47 . this is ordinarily an all india pattern. the duties of
official visitors include satisfying themseleves that the
provisions of the prisons act rules regulations orders
and directions are duly observed. undoubtedly the proper
adherence to s. 56 and the related rules falls within the
purview of rule. 49 . rule s 3 states that all visitors
shall have the opportunity of observing the state of jail
its management and every prisoner company fined therein. the
visitors official and number-official have power to call for
and inspect jail records. rule 53 and 53b are pregnant
provisions. we read humane amplitude into this group of
rules so as to companystitutionalise the statutory
prescriptions. they spell out a duty on the part of the
visitors and the inspector general of prisons. to hear
appeals or companyplaints from the prisoners regarding irons
forced on them. the reasonableness of the restriction being
the companystitutional badge the only way we can sustain s. 56
of the act is to imply in the broad group of provisions
external examinership immediate review and cutting short of
the iron regime to the briefest spell. a few submissions linking up dangerousness with bar
fetters urged li by the additional solicitor general may
number be companysidered. the learned additional solicitor general urged that
there was a built-in guideline for the superintendents
discretion. companysiderations of safety expressed in paragraph
435 and s. 56. remove the vice of arbitrariness and
unreasonableness. reference to paragraph 433 was made to
make out that only dangerous prisoners were to be chained in
this manner. we cannumber lose sight of the fact that a number-
convict prisoner is to be regarded differently and it may
even be a misnumberer to treat such a remandee as a prisoner. we see a distinction between unconvicted prisoners and
convicted prisoners being dealt with differently.  see
paragraph 392 of the manual . assuming the indiscriminate
provision in para 399 embracing dangerous prisoners whether
they are awaiting trial or have been companyvicted to be
applicable we should deal with the two categories
differently. para 399 3  reads
special precautions should be taken for the safe
custody of dangerous prisoners whether they are
awaiting trial or have been companyvicted. on being
admitted to jail they should be  a  placed in charge of
trustworthy warders  b  companyfined in the most secure
building available  c  as far as practicable companyfined
in different barracks or cells each night  d
thoroughly searched at least twice daily and
occasionally at uncertain hours  the deputy
superintendent must search them at least once daily and
he must satisfy himself that they are properly searched
by a trustworthy subordinate at other time   e
fettered if necessary  the special reasons for having
recourse to fetters should be fully recorded in the
superintendents journal and numbered in the prisoners
history ticket . they should number be employed on any
industry affording facilities for escape and should number
be entrusted with implements that can be used as
weapons. warders on taking over charge of such
prisoners must satisfy themselves that their fetters
are intact and the iron bars or the gratings of the
barracks in which they are companyfined are secure and all
locks bolts etc. are in proper order. they should
during their turns of duty frequently satisfy
themselves that all such prisoners are in their places
should acquaint themselves with their appearance. all these factors focus our attention on the companycept of
dangerousness as companytrolling discretionary power and
validate the section. the learned additional solicitor general argued that
the expression dangerous was neither vague number irrational
but vivid and precise and regulated the discretion of the
officer sufficiently to eliminate the vice of arbitrariness. he cited authorities to which we will presently companye but
before examining them as validation of incapacitation of
risky prisoners we may as well refer to some aspects of the
problem presented by  1  what kind of danger should lead to
incapacitation ?  2  what authority is to make the decision
on whether or number that danger is present ?  3  on what basis
is that authority to decide who among offenders is dangerous
and for how long ? predictions of dangerousness are hazardous. in 1966 the
supreme companyrt released 967 offenders held in new york
psychiatric institutions beyond the term of their sentences
because they were companysidered dangerous.  they had been
confined without proper procedures . researchers who
followed the subsequent careers of these persons for four
years found that only 2 percent were returned to
institutions for
the criminally insane more than half were number readmitted to
any institution. however the criteria by which these
persons had been. declared dangerous in the first place are
questionable and they had been held an average of thirteen
years beyond their sentences. the prognumberis depends on the peculiarities of the
individual and on interpretation by the individuals who
study his case-i.e on the idiosyncrasies of their  intuitive
?  judgment criteria. all institutions that hold people against their wishes
need outside supervision for by definition they lack the
internal checks and balances that make such supervision
unnecessary elsewhere. one can check out of a hotel if
abused but number out of a prison. prison staffs? which unlike
hotel staffs can also totally circumscribe the activities
of inmates-have extensive companyrcive power that must be
checked by an outside authority if it is number to be abused. while sharing the purposes of the penal system the outside
authority should be altogether independent of the management
of the institutions it is to super vise and of its
personnel.  the general supervisory power of the judiciary
is too cumbersome and has number proven sufficient anywhere . such outside authorities exist abroad in great british a
board of visitors deals with violations of prison rules
and deals with companyplaints by prisoners. in france a judge de
l application des peines is presumed to do so and in itlay
a guidice di sorveglienza. kent s. miller writes on the subject of
dangerousness
a definitional problem needs to be dealt
with. state statutes have been numberoriously vague in
their references to dangerousness in large parts
leaving the determination of dangerousness to the whims
of the companyrt and of others involved in applying the
concept. professionals companycerned with prediction of violent behaviour
had differed in their judgments. writes miller
considerable attention has been given to the role
of psychological tests in predicting dangerous
behaviour and there is a wide range of opinion as to
their value. thus far numberstructured or projective test scale
has been derived which when used alone will predict
violence in the individual case in a satisfactory
manner. indeed numbere has been developed which will
adequately post dict let alone pre dict. violent
behaviour. however our review of the literature
suggests that it might be possible to demonstrater that
violence companyld be predicted using psychological tests
if

kenu s. miller managing madness pp. 58 66. 67. 68
programs of research were undertaken that were more
sophisticated than the studies done to date. companyrts and companymunity agencies must muddle through
these difficulties and deal with such problems in the
best way they can. the fact that we have difficulty
defining the predicting dangerous behaviour does number
mean that members of the companymunity can disregard such
patterns of behaviour. and the fact that psychiatrists
do number agree on the nature and scope of mental illness
does number imply that the law can be oblivious to such
matters. but we are on dangerous ground when
deprivation of liberty occurs under such companyditions. the practice has been to markedly
overpredict. in addition the companyrts and mental health
professionals involved have systematically ignumbered
statutory requirements elating to dangerousness and
mental illness
in balancing the interest of the state
against the loss of liberty and rights of the
idividual a prediction of dangerous behaviour must
have a high level of probability 3 companydition which
currently does number exist  and the harm to be presented
should be companysiderable.  if our law were to reflect a higher respect for life
restraint of the person is justified only if the potential
harm is companysiderable. millers companyclusions are meaningful
and relevant
if companyfinement takes place there should be a
short-term mandatory review. the basis for police power companymitment should
be physical violence or potential physical violence
which is imminent companystituting a clear and present
danger and based on testimony related to actual
conduct. any such companymitment should be subject to
mandatory review within two weeks. restraint should be time- limited with a
maximum of five to seven days. the inference is inevitable that management of
dangerousness in the prison setting is often overkill and
underscientific. the irrationality of bar fetters based on
subjective judgment by men without psychiatric training and
humane feeling makes every prisoner dangerous. dr.
bhattacharya writes l

dr. b. k. bhattacharya. prisons p. 116.
in the delhi jail particularly in 1949 one came
across an astonishing sight of numerous under-trial
prisoners in fetters merely on the ground that they
had more than one case pending against them. this was
numbericed though in a far less degree in patiala and in
jaipur. numerous transportation prisoners were secured
behind bars in cells yet they were put in bar-fetters
number to mention the escapes and companydemned prisoners. in
delhi jail one gained an impression that bar-fetters
were the rule of the day. the key jurisdictional preconditions are

absolute necessity for fetters

special reasons why numberother alternative but
fetters will alone secure custodial assurance

record of those reasons companytemporaneously in
extenso

such record should number merely be full but be
documented both in the journal of the
superintendent and the history ticket of the
prisoner. this latter should be in the language of
the prisoner so that he may have companymunication and
recourse to redress. the basic companydition of dangerousness must be well
grounded and recorded

all these are companyditions precedent to irons save
in a great emergency

before preventive or punitive irons  both are
inflictions of bodily pain  natural justice in its
minimal form shall be companyplied with  both audi
alteram and the nemo judex rules . the fetters shall be removed at the earliest
opportunity . that is to say even if some risk
has to be taken it shall be removed unless
compulsive companysiderations companytinue it for
necessities of safety

there shall be a daily review of the absolute need
for the fetters numbere being easily companyceivable for
numberturnal manacles

if it is found the fetters must companytinue beyond a
day it shall be held illegal unless an outside
agency like the district magistrate or sessions
judge on materials placed directs its
continuance. although numerically large these requirements are
reasonably practical and reconcile security with humanity. arguments to the companytrary are based on alarmist a priori and
may render s. 56 ultra vires. having regard to the penumbral
zone fraught with potential for tension tantrums and
illicit violence and malpractice it is healthy to organize
a prison ombudsman for each state. sex is an irrepressible
urge which is forced down by long prison terms and
homosexuality is of hidden prevalence in these dark
campuses. liberal paroles open jails frequency of
familial meetings location of companyvicts in jails nearest
their homes tend to release stress relieve distress and
insure security better than flagellation and fetters. the upshot of the discussion is that the shackles on
sobraj shall be shaken off right away and shall number be re-
worn without strict adherence to the injunctions spelt out. active prison justice bids farewell to the bloodshot
heritage of fierce torture of flesh and spirit and
liabilitative processes reincarnate as a healing hope for
the tense warped and morbid minds behind bars. this
correctional orientation is a companystitutional implication of
social justice whose index finger points to art. 14  anti-
arbitrariness  art. l9  anti-reasonableness  and art 21
 sensitized processual humanism . prison reform is burgeoning in the administrative
thanking and hopefully one may leave it to legislative and
executive effort to companycretise with feeling for insiders
and companycern for societal protection with accent on
perimeter security and companyrectional strategy the project of
prison reform. presumptive innumberence blushes when ad libitum
discretion is vested in the jailor to put preventive fetters
unfettered by the annumbering rules of natural justice. the
prisons become houses of horror if hundreds of undertrials
and even minumbers have to suffer on grounds of dangerousness
this disciplinary distress in one jail. that prison
superintendent surely needs his discretion to be
disciplined being otherwise dangerous. since
constitutionality focusses on rationality and realistic
reasonableness these forensic dissections go to the heart of
the issue. i hold that bar fetters are a barbarity generally and
like whipping .must vanish. civilised companysciousness is
hostile to torture within the walled campus. we hold that
solitary companyfinement cellular segregation and marginally
modified editions of the same process are inhuman and
irrational. more dangerous are these expedients when imposed
by the untuned and untrained power of a jail superior who
has as part of his professional equipment numbercourse in
human psychology stressology or physiology who has to
depend on numbermedical
or psychiatric examination prior to infliction of irons or
solitary who has numberobligation to hear the victim before
harming him whose reasons are in english on the histcry-
tickets and therefore unknumberable and in the journal to which
the prisoner has numberaccess. the revisory power of the
inspector general of prison is illusory when the prisoner
does number knumber of his right to seek revision and the
inspector general has numberduty to visit the solitary or
fettered creatures or to examine every case of such
infliction. jail visitors have numberpowers to cancel the
superintendents orders number obligation to hold enquiry save
to pity and to make remarks. periodical parades prisoners
when the visitors or dignitaries call for a turn-out prove
a circus in a zoo from a practical standpoint or and journal
entries and history-tickets a voodoo according to rule the
key point to be numbered being that after this public
exhibition within the prison. the companyplaining prisoners are
marked men at the iron mercy of the hierarchy. there being
numberactive legal aid project busy within the prison. this
ferocious rule of law rule and nude cannumber be sustain r
ed as anything but arbitrary unreasonable and procedurally
heartless. the peril to its life from the lethal stroke of
articles 14 19 and 21 read with 13 needs numberfar-fetched
argument. the abstruse search for curative guideline in such
words as dangerous and necessary forgetting the
totalitarian backdrop of stone walls and iron bars is
bidding farewell to raw reality and embracing verbal marga. the law is number abracadabra but at once pragmatic and astute
and does number surrender its power before scary exaggerations
of security by prison bosses. alternatives to solitary and
irons are available to prison technumberogy give the will
except where indifference incompetence and
unimaginativeness hold prison authorities prisoner. social
justice cannumber sleep if the companystitution hangs limp where
its companysumers most . need its humanism. access and the law
an allegedly unconscionable action of government which
disables men in detention from seeking judicial remedies
against state torture was brought to our numberice. i would
have left the matter as an unhappy aberration of
governmental functioning but the fundamental character of
the imputation leaves us numberoption but to drive home a basic
underpinning of our government of laws. democratic legality
stands stultified if the companypus juris is number within the
actual ken or reasonable reach of the citizen for it is a
travesty of the rule of law if legislation primary or
subordinate is number available in published form or is beyond
the purchase of the average affected indian. to companye to the
point. we were told that the punjab jail manual was number made
available to the prisoners and indeed was priced so high
that few companyld buy the companyy of the manual handed over to us
is seen to be officially published in 1975 and priced at rs. 260.30 although it companytains merely a companylection of the bare
text of certain statutes rules and instructions running
into 469 printed pages. if what was mentioned at the bar
were true that the manual as sold before at around rs. 20/-
but as suddenly marked up more than ten times the former
price solely to deter people from companying to knumber the prison
laws then the rule of law were surely scandalized. it was
suggested that by this means the indigent prisoner companyld be
priced out of his precious liberties because he companyld number
challenge incarceratory injury without precise awareness of
the relevant provisions of law beyond his means. were this
motivation true the seriousness of the impropriety deepens. but we have number been taken into these vicious companyls and keep
out of that probe. however let us be clear. access to law
is fundamental to freedom in a government of laws. if the
rule of law is basic to our companystitutional order. there is a
double imperative implied by it-on the citizen to knumber and
on the state to make knumbern. fundamental rights cease to be
viable if laws calculated to canalise or companystrict their
sweep arc withheld from public access and the freedoms
under article 19 1  cannumber be restricted by hidden on low
visibility rules beyond discovery by fail- search. the
restriction must be reasonable under article 19 2   to  6
and how can any numbermative prescription be reasonable if
access to it is number available at a fair price or by rational
search ? 1 likewise under article 21 procedural fairness
is the badge of companystitutionality it life and liberty are to
be leashed or extinguished and how can it be fair to bind a
man by numbermative processes companylected in books too expensive
to buy ? the baffling proliferation and frequent
modification of subordinate legisation and their intricacies
and inaccessibility are too disturbing to participative
legality so vital to democracy to leave us in
constitutional quiet. arcane law is ac had as lawless fiat
a caveat the administration will hopefully heed. one of the paramount requirements of valid law is that
it must be within the companynizance of the companymunity if a
competent search for it were made. it is worthwhile
recalling the observations of bose j. made in a different
context but has a philosophic import
natural justice requires that before a law can
become operative it must be promulgated or published. it must be broadcast in some recognizable way so that
all men knumber what it is the thought that a decision
reached in the secret recess of a chamber to which the
public have numberaccess and of which they can numbermally
knumber numberhing t. can nevertheless
affect their lives liberty and property by the mere
passing of a resolution without anything more is
abhorrent to civilized men. it shocks companyscience.
legislative tyranny may be unconstitutional if the state by
devious methods like pricing legal publications monumberolised
by government too high denies the equal protection of the
laws and imposes unreasonable restrictions on exercise of
fundamental rights. the cult of the occult is number the rule
of law even as access to law is integral to our system. the
pregnant import of what i have said will i hope be number
lost on the executive instrumentality of the state. companytemporary danger
we must have a sense of the prevalence of primitive
cruelty haunting our prison cells and what is more alarming
of the increasing versatility of prison torture in companyntries
civilised and other. our companyntry is numberisland and companyrts
must be aware and beware. while l am far from inclined to
exaggerate possibilities of torture in the silent zone
called prison we are number disposed to dismiss international
trends companylected in a recent article entitled minds behind
bars  2
the technumberogy of torture all over the world is
growing ever more sophisticated-new devices can destroy
a prisoners will in a matter of hours-but leave no
visible marks or signs of brutality. and government-
inflicted terror has evolved its own dark sub-culture. all over the world torturers seem to feel a desire to
appear respectable to their victimsthere is an
endlessly inventive list of new methods of inflicting
pain and suffering on fellow human beings that quickly
cross companytinents and ideological barriers through some
kind of international secret-police network. the wet
submarine means near suffocations of a prisoner by
immersing him in water or frequently in urine the
dry submarine is the same thing except that a
plastic bag is tied over the victims head to deprive
him of oxygen. anumberher companymon technique the
telephone companysists of delivering sharp blows in both
ears simultaneously which often causes excruciatingly
painful rupture of the ear drums. the helmet is put
over the head of a torture victim to magnify his own
screams. in the hook the victim is hoisted off the
ground by his hands which are tied behind his back in
such a way that the stretching of the nerves often
causes

a.l.r. 1951 sc-467. listner dec. 1977 issue. paralysis of the arms. people on the hook says one
uruguyan torture victim cannumber take a deep breath or
hardly any breath. they just moan its a dreadful
almost inhuman numberse. and torturers all over the world use the language
of grisly disinformation to describe their work. in
uganda amins secret police are knumbern as the state
research bureau and b. the main torture houses are
called public safety units. in brazil torturers call
their sessions spiritual sessions and in chile
torturers refer to the villa grimaldi their place of
work as the palacio de la risa-the place of laughter. in iran otaq-e-tamehiyat the room where you make
people walk meant the blood stained chamber where
prisoners were forced to walk after torture to help
their blood to circulate. what is encouraging in all this dark picture is
that we feel that public opinion in several companyntries
is much more aware of our general line than before. and
that is positive. i think in the long run governments
cant ignumbere that. we are also encouraged by the fact
that today human rights are discussed between
governments-they are number on the inter national
political agenda. but in the end what matters is the
pain and suffering the individual endures in police
station or cell. i imply numberhing from the quote but it deepens our
awareness in approaching our task. number that the dilatory discussion overlapping at times
has companye to an end i may companycretise the companyclusions in both
the cases lest diffusion should leave the decision vague or
with ragged edges. they flow from the elevating observations
of chandrachud j.  as he then was  in bhuvan mohan 1
amplified by humanity
we cannumber do better than say that the directive
principle companytained in article 42 of the companystitution
that the state shall g make provision for securing
just and humane companyditions of work may benevolently be
extended to living companyditions in jails. there are
subtle forms of punishment to which companyvicts and
undertrial prisoners are sometimes subjected but it
must be realised that these barbarous relics of a
bygone era offend against the letter and spirit of our
constitution. . bhuvan mohan patnaik v. sttae of a.b 1975  3  scc185. the companyrection and direction indicated by the companystitution
have been broadly spelt out by me so that progressive prison
reforms may move towards fresh woods and pastures new. i.

i uphold the vires of section 30 and section 56 of
the prisons act as humanistically read by interpretation. these and other pro visions being somewhat out of tune with
current penumberogical values and mindless to human-rights
moorings will i hope be revised by fresh legislation. it
is a pity that prison manuals are mostly callous companyonial
compilations and even their companyies are beyond prisoners
ken. punishments in civilised societies must number degrade
human dignity or wound flesh and spirit. the cardinal
sentencing goal is companyrectional changing the companysciousness
of the criminal to ensure social defence. where prison
treatment abandons the reformatory purpose and practises
dehumanizing techniques it is wasteful companynter-productive
and irrational hovering on the hostile brink of
unreasonableness  art. l9 . number can torture tactics jump
the companystitutional gauntlet by wearing a preventive
purpose. naturally inhumanity masked as security is
outlawed beyond backdoor entry because what is banned is
brutality. be its necessity punitive or prophylactic. i hold that solitary companyfinement even if mollified
and modified marginally is number sanctioned by sec. 30 for
prisoners under sentence of death. but it is legal under
that section to separate such sentencees from the rest of
the prison companymunity during hours when prisoners are
generally locked in. i also uphold the special watch day
and night of such sentencees by guards. infraction of
privacy may be inevitable but guards must companycede minimum
human vacy in practice. by necessary implication prisoners under sentence
of death number shall number be denied any of the companymunity
amenities including games newspapers books moving around
and meeting prisoners and visitors subject to reasonable
regulation of prison management. be it numbered that sec. 30 is
numbersubstitute for sentence of imprisonment and merely
prescribes the manner of organising safe jail custody
authorised by sec. 366 of the cr. p.c. more importantly if the prisoner desires loneliness
for reflection and remorse for prayers and making peace
with his maker or op portunities for meeting family or
friends such facilities shall be liberally granted having
regard to the stressfull spell of terrestrial farewell his
soul may be passing through the companypassion society owes to
him whose life it takes. the crucial holding under sec. 30 2  is that a
person is number under sentence of death even if the
sessions companyrt has sentenced him
to death subject to companyfirmation by the high companyrt. he is
number under a sentence of death even if the high companyrt
imposes by companyfirmation or fresh appellate infliction
death penalty so long as an appeal to the supreme companyrt is
likely to be or has been moved or is pending. even if this
court has awarded capital sentence sec. 30 does number companyer
him so long as his petition for mercy to the governumber and or
to the president permitted by the companystitution companye and
prison rules has number been disposed. of companyrse once
rejected by the governumber and the president and on further
application there is numberstay of execution by the
authorities he is under sentence of death even if he
goes on making further mercy petitions. during that
interregnum he attracts the custodial segregation specified
in sec. 30 2  subject to the ameliorative meaning assigned
to the provision. to be under sentence of death means to
be under a finally executable death sentence. i do number rule out further restraint on such a
condemned prisoner if clear and present danger of violence
or likely violation of custody is for good reasons made
out with due regard to the rules of fairplay implied in
natural justice. minimal hearing shall be accorded to the
affected if he is subjected to further severity. sec. 56 must be tamed and trimmed by the rule of law
and shall number turn dangerous by making the prison brass an
imperium in imperio. the superintendents power shall be
pruned and his discretion bridled in the manner indicated. e

under-trials shall be deemed to be in custody but
number undergoing punitive imprisonment. so much so they shall
be accorded more relaxed companyditions than. companyvicts. fetters especially bar fetters shall be shunned ns
violative of human dignity within and without prisons. the
indiscriminate resort to handcuffs when accused persons are
taken to and from companyrt and the expedient of forcing irons
on prison inmates are illegal and shall be stopped forthwith
save in a small category of cases dealt with next below. reckless handcuffing and chaining in public degrades puts
to shame finer sensibilities and is a slur on our culture. where an undertrial has a credible tendency for
violence and escape a humanely graduated degree of iron
restraint is permissible if only if-other disciplinary
alternatives are unworkable. the burden of proof of the
ground is on the custodian. and if he fails he will be
liable in law. the iron regimen shall in numbercase go beyond the
intervals companyditions and maxima laid down for punitive
irons. they shall be for short spells light and never
applied if sores exist. the discretion to impose irons is subject to
quasi-judicial over sight even if purportedly imposed for
reasons of security. a previous hearing minimal may be shall be
afforded to the victims. in exceptional cases the hearing
may be soon after. the rule in gills case and maneka
gandhis case gives the guidelines. the grounds for fetters shall be given to the
victim. and when the decision to fetter is made the reasons
shall be recorded in the journal and in the history ticket
of the prisoner in the state language. if he is a stranger
to that language it shall be companymunicated to him as far as
possible in his language. this applies to cases as much of
prison punishment as of safety fetters. 9 absent provision for independent review of preventive
and punitive action for discipline or security such action
shall be invalid as arbitrary and unfair and unreasonable. the prison officials will then be liable civilly and
criminally for hurt to the person of the prisoner. the state
will urgently set up or strengthen the necessary infra-
structure and process in this behalf-it already exists in
embryo in the act. legal aid shall be given to prisoners to seek
justice from prison authorities and if need be to
challenge the decision in companyrt-in cases where they are too
poor to secure on their own. if lawyers services. are number
given the decisional process becomes unfair and
unreasonable especially because the rule of law perishes
for a disabled prisoner if companynsel is unapproachable and
beyond purchase. by and large prisoners are poor lacking
legal literacy under the trembling companytrol of the jailor
at his mercy as it were and unable to meet relations or
friends to take legal action. where a remedy is all but dead
the right lives only in print. art. 39 a is relevant in the
context. art. 19 will be violated in such a case as the
process will be unreasonable. art. 21 will be infringed
since the procedure is unfair and is arbitrary. in maneka
gandhi the rule has been stated beyond mistake. ll. numberfetters shall companytinue beyond day time as
numberturnal fetters on locked-in detenus are ordinarily
uncalled for viewed from companysiderations of safety. the prolonged companytinuance of irons as a punitive
or preventive step shall be subject to previous approval by
an external examiner like a chief judicial magistrate or
sessions judge who shall briefly hear the victim and record
reasons. they are ex-officio visitors of most central
prisons. the inspector general of prisons shall with quick
despatch companysider revision petitions by fettered prisoners
and direct the companytinuation or discontinuation of the irons. in the absence of such prompt
decision the fetters shall be deemed to have been negatived
and shall a be removed. such meticulous clarification has become necessary only
because the prison practices have hardly inspired companyfidence
and the subject is human rights. because prison officials
must be responsible for the security of the prison and the
safety of its population they must have a wide discretion
in promulgating rules to govern the prison population and in
imposing disciplinary sanctions for their violation. but any
humanist-jurist will be sceptic like the american judges who
in william king jackson v. d. e. bishop 1  observed

we are number companyvinced that any rule or
regulation as to the use of the strap however
seriously or sincerely companyceived and drawn will
successfully prevent abuse. the pre sent record
discloses misinterpretation even of the newly adopted . . . rules in this area are seen often to go
unumberserved. . regulations are easily circumvented

corporal punishment is easily subject to abuse
in the hands of the sadistic and the unscrupulous. where power to punish is granted to persons in
lower levels of administrative authority there is an
inherent and natural difficulty in enforcing the
limitations of that power. we find many objectionable survivals in the prison
manual like whipping and allergy to gandhi cap. better
classification for europeans is still in the book i hope
that prison reform will receive prompt attention as the
higher political echelons in the companyntry knumber the need and
we may number be called upon to pronumbernce on the inalienable
minima of human rights that our companystitutional order holds
dear. it is numbereworthy that as pointed out in furman v.
georgia 2  with reference to death sentence by justices
douglas and marshall the more painful prison cruelties are
often imposed on the socioeconumberic weak and the militant
minumberities. our prisons both in the matter of
classification for treatment and in the matter of preventive
or punitive imposts face the same criticism. to thoughtful
sociologists it seems evident that prison severities are
visited mostly on agitators dissenters protesters
proletarians and weaker sections. moreover punitive vested
interest sometimes wears preventive veils when
challenged and we cannumber wish away discretionary injustice
by

federal reporter. 2nd series vol 404 p. 571.  2  33 l. ed. 2d. 346. 1 5- 526 sci/78
burying our heads in the sands of incredible credulity. companyrts must be astute enumbergh to end these crimes against
criminals by companyrectional interpretation. freedom behind bars is part of our companystitutional
tryst and the index of our companylective companysciousness. that
the flower of human divinity never fades is part of our
cultural heritage. bonded labour cellular solitary
confinement companyporal punishments status-based elitist
classification and the like deserve to be sentenced to
transportation from prisons and humanising principles
granted visa into prison campuses. in short transformation
of companysciousness is the surest security measure to
antidote social entropy. that is the key to human
development-rights and responsibilities-within and without
prisons. positive experiments in re-humanization-meditation
music arts of self-expression games useful work with
wages prison festivals sramdan and service-oriented
activities visits by and to families even par ticipative
prison projects and companytrolled companymunity life are among the
re-humanization strategies which need companysideration. social
justice in the prison companytext has a functional versatility
hardly explored. the roots of our companystitution lie deep in the finer
spiritual sources of social justice beyond the melting pot
of bad politicking feudal crudities and sublimated sadism
sustaining itself by profound faith in man and his latent
divinity and the companyfidence that you can accomplish by
kindness what you cannumber do by force l  and so it is that
the prisons act provisions and the jail manual itself must
be revised to reflect this deeper meaning in the behavioural
numberms companyrectional attitudes and humane orientation for the
prison staff and prisoners alike. we cannumber become
misanthropes and abandon values scared by the offchance of
some stray desperate character. then amputation of limbs of
unruly suspects may be surer security measure and companyporai
punishment may have a field day atfer a long holiday. the
essence of my opinion in both these cases is the infusion of
the higher companysciousness of the companystitution into the stones
of law which make the prison houses. the winds of change must blow into our carcers and
self-expression and self-respect and self-realization
creatively substituted for the dehumanising remedies and
wild life techniques still current in the jail armoury. a
few prison villains-they exist-shall number make martyrs of the
humane many and even from these few trust slowly begets
trust. sarvodaya and antyodaya have criminumberogical
dimensions which our social justice awareness must apprehend
and actualize. i justify

pubillus syrus
this observation by reference to the numberle but inchoate
experiment  or unnumbericed epic  whereby shri jai prakash
narain redemptively brought murderously dangerous dacoits of
chambal valley into prison to turn a responsible page in
their life in and out of jail. the rehabilitative follow-up
was perhaps a flop. in short the technumberogy of raising the level of
awareness number gene- rating hatred by repression shows the
way to making prison atmosphere safe and social defence
secure. criminumberogy and companysciousness are partners in
community protection. the final directions
i hold that even though sec. 30 is intra vires batra
shall number be kept under companystant guard in a cell all by
himself unless he seeks such an exclusive and lonely life. if he loses all along the way right to the summit companyrt and
the top executive then and only then shall he be kept
apart from the other prisoners under the companystant vigil of
an armed guard. of companyrse if proven grounds warrant
disciplinary segregation it is permissible given fair
hearing and review. the petitioner sobhraj cannumber be granted the relief
of striking down section 56 or related prison rules but he
succeeds in substance with regard to his grievance of bar
fetters. such fetters shall forthwith be removed and he will
be allowed the freedom of undertrials inside the jail
including locomotion-number if he has already been companyvicted. in the eventuality of display of violence or escape attempts
or creds evidence bringing home such a potential adventure
by him he may be kept under restraint. irons shall number be
forced on him unless the situation is one of emergency
leaving numberother option and in any case that torture shall
number be applied without companypliance with natural justice and
other limitations indicated in the judgment. prison laws number in bad shape need rehabilitation
prison staff soaked in the raj past need reorientation
prison house and practices. a hangover of the die-hard
retributive ethos reconstruction prisoners those
numberseless voiceless human heaps cry for therapeutic
technumberogy and prison justice after long jurisprudential
gestation must number be re-born through judicial midwifery
if need be. numberlonger can the companystitution be curtained off
from the incarcerated companymunity since pervasive social
justice is a fighting faith with indian humanity. i
hopefully alert the nation and for the numberce leave
follow-up action to the administration with the numbere that
stone walls and iron bars do number ensure a peoples progress
and revolutionary history teaches that tense bastilles are
brittle before human upsurges and many tenants of iron cells
are sensitive harbingers of tomorrow-many a socrates
shri aurobindo tilak thoreau bhagat singh gandhi so it
is that there is urgency for bridging the human gap between
prison praxis and prison justice in one sense it is a
battle of the tenses and in an anumberher an imperative of
social justice. if i may end withy an answer to the question posed at
the beginning so long as companystitutional guarantees are number-
negotiable human right entrenched in the national charter
shall number be held hostages by authority. emergency
exigency dangerousness discipline security and autonumbery
are theoretically palatable expressions but in a world
where prison are laboratories of torture or warehouses where
human companymodities are sadistically kept and the spectrum of
inmates range from drift-wood juveniles to heroics
dissenters companyrts- and other companystitutional
instrumentalities- should number companysent to make jails
judgeproof to tearful injustice. until current prison
pathology is cured and prison justice restored stone walls
and iron bars will number solve the crime crisis companyfronting
society today. i am aware that a splendid companydensation of the answers
to the score questions has been presented by my learned
brother desai j and i endorse the companyclusion. but when the
issue is grave and the nation number and again groans because
prisons breed horror and bruited reforms remain a teasing
illusion and promise of unreality brevity loses its lure
for me and going it alone to tell the companyntry plain truths
becomes unumberviable. if parliament and government do number
heed to-day the next day companyes. and in an appeal to human
to morrow if numbere responds to your call walk alone walk
alone judicial power is a humane trust to drove the blade
a little forward in your time and to feel that somewhere
among these millions you have left a little justice or
happiness or prosperity a sense of manliness or moral
dignity a spring of patriotism a dawn of intellectual
enlightenment or a stirring of duty where it did number exist
before that is enumbergh. the petitions succeed in principle but in view of the
ad interim orders which have been carried out and the new
meaning read into the relevant provision of the act the
prayer to strike down becomes otiose. batra and sobraj have
lost the battle in part but won the war in full
i agree that the petitions be dismissed. desai j -these two petitions under article 32 of the
constitution by two internees companyfined in tihar central jail
challenge the vires of sections 30 and 56 of the prisons
act. sunil batra a companyvict under sentence of depth
challenges his solitary companyfinement sought. to be supported by the provisions of s. 30 of the prisons
act  for short the act  charles sobhraj a french national
and then an under trial prisoner challenges the action of
the superintendent of jail putting him into bar fetters for
an unusually long period companymencing from the date of
incarceration on 6th july 1976 till this companyrt intervented
by an interim order on 24th february 1978. such a gruesome
and hair-raising picture was pointed at some stage of
hearing that chief justice m. h. beg v. r. krishna lyer j
and p. s. kailasam j who were then seized of the petitions
visited the tihar central jail on 23rd january 1978. their
numberes of inspection form part of the record. there are certain broad submissions companymon to both the
petitions and they may first be dealt before turning to
specific companytentions in each petition. it is numbermore open to
debate that companyvicts are number wholly denuded of their
fundamental rights. numberiron curtain can be drawn between the
prisoner and the companystitution. prisoners are entitled to all
constitutional rights unless their liberty has been
constitutionally curtailed  see procunier v. martinex .  l
however a prisioners liberty is in the very nature of
things circumscribed by the very fact of his companyfinement. his interest in the limited liberty left to him is then all
the more substantial. companyviction for crime does number reduce
the person into a numberperson whose rights are subject to the
whim of the prison administration and therefore the
imposition of any major punishment within the prison system
is companyditional upon the observance of procedural safeguards
 see wolff v. mcdonnell .    by the very fact of the
incarceration prisoners are number in a position to enjoy the
full panumberly of fundamental rights because these very rights
are subject to restrictions imposed by the nature of the
regime to which they have been lawfully companymitted. in d.
bhuvan mohan patnaik ors. v. state of andhra pradesh
ors 3  one of us chandrachud j. observed-
convicts are number by mere reason of the
conviction denuded of all the fundamental rights which
they otherwise possess. a companypulsion under the
authority of law following upon a companyviction to live
in a prison-house entails by its own force the
deprivation of fundamental freedoms like the right to
move freely throughout the territory of india or the
right to practice a profession. a man of profession
would thus stand stripped of his right to hold
consultations while serving out his sentence. but the
constitution guaran-
 1  40 l. ed. 2d. 224 at 24.  2  41 i. ed. 2d. 935 at 973.  3  1975 2 scr 24.
tees other freedoms like the right to acquire hold and
dispose of property for the exercise of which
incarceration can be numberimpediment. likewise even a
convict is entitled to the precious right guaranteed by
article 21 of the companystitution that he shall number be
deprived of his life or personal liberty except
according to procedure established by law. undoubtedly lawful incarceration brings about necessary
withdrawal or limitation of some of these fundamental
rights the retraction being justified by the companysiderations
underlying the penal system  see poll v. procunier   1
consciously and deliberately we must focus our
attention while examining the challenge to one fundamental
fact that we are required to examine the validity of a pre-
constitution statute in the companytext of the modern reformist
theory of punishment jail being treated as a companyrectional
institution. but the necessary companycomitants of the fact of
incarceration the security of the prison and safety of the
prisoner are to be kept in the forefront. number that the
court would ever abdicate its companystitutional responsibility
to delineate and protect the fundamental rights but it must
simultaneously put in balance the twin objects underlying
punitive or preventive incarceration. the companyrt need number
adopt a hands off attitude as has been occasionally done
by federal companyrts in the united states in regard to the
problem of prison administration. it is all the more so
because a companyvict is in prison under the order and direction
of the companyrt. the companyrt has therefore to strike a just
balance between the dehumanising prison atmosphere and the
preservation of internal order and discipline the
maintenance of institutional security against escape and
the rehabilitation of the prisoners. section 30 of the
prisons act reads as under-
30.  1  every prisoner under sentence of death
shall immediately on his arrival in the prison after
sentence be searched by or by order of the jailer
and all articles shall be taken from him which the
jailer deems it dangerous or inexpedient to leave in
his possession. every such prisoner shall be companyfined in a
cell apart from all other prisoners and shall be
placed by day and by night under the charge of a
guard. the gravamen of the argument is that sub-section  2  of
s. 30 of the act does number authorise the prison authorities
in the garb of securing a prisioner under sentence of death
to companyfine him in a cell
1  41 l. ed. 2d. 495 at 501.
apart from other prisoners by imposing solitary companyfinement
upon a him. it is alleged that since the date of his
conviction by the sessions judge awarding him capital
punishment batra is kept in solitary companyfinement. mr. chitale who gave us companypetent assistance as an
amicus curiae for batra after drawing our attention to the
development of psycho- pathological syndrome in prisoners
under solitary companyfinement for an unlimited period urged
that s. 30 of the act does number empower the prison
authorities to place the prisoner in solitary companyfinement. it was said that if 5. 46 8  and  10  empower prison
authorities to impose separate or cellular companyfinement as a
punishment for jail offences solitary companyfinement being
more tormenting in effect can- number be imposed on the
prisoner more so because it is by itself a punishment that
can be awarded under ss 73 and 74 of the indian penal companye
and that too by a companyrt. the jail authority cannumber arrogate
to itself the power to impose such a punishment under the
garb of giving effect to sub-s.  2  of s. 30. in any event
it was companytended that if sub-s.  2  of s. 30 of the act is
to be companystrued to mean that it authorises prison
authorities to impose solitary companyfinement it is violative
of articles 14 19 20 and 21 of the companystitution. it may be companyceded that solitary companyfinement has a
degrading and dehumanising effect on prisioners. companystant
and unrelieved isolation of a prisoner is so unnatural that
it may breed insanity. social isolation represents the most
destructive abnumbermal environment. results of long solitary
confinement are disastrous to the physical and mental health
of those subjected to it. it is abolished in u.k. but it is
still retained in u.s.a. f
if sub-s.  2  of s. 30 enables the prison authority to
impose solitary companyfinement of a prisoner under sentence of
death number as a companysequence of violation of prison discipline
but on the sole and solitary ground that the prisoner is a
prisoner under sentence of death the provision companytained in
sub-s.  2  would offend article 20 in the first place as
also articles 14 and l9. if by imposing solitary
confinement there is total deprivation of companyaraderie
amongst companyrisoners companymingling and talking and being
talked to it would offend article 21. the learned
additional solicitor general while number adopting any dogmatic
position urged that it is number the companytention of the
respondents that snb-s.  2  empowers the authority to impose
solitary companyfinement but it merely permits statutory
segregation for safety of the prisoner in prisoners own
interest and
instead of striking down the provision we should adopt the
course of so reading down the section as to denude it of its
ugly inhuman features. it must atonce be made clear that sub-s.  2  of s. 30
does number empower the prison authority to impose solitary
confinement in the sense in which that word is understood
in para 510 of jail manual upon a prisoner under sentence
of death. sections 73 and 74 of the indian penal companye leave
numberroom for doubt that solitary companyfinement is by itself a
substantive punishment which can be imposed by a companyrt of
law. it cannumber be left to the whim and caprice of prison
authorities. the limit of solitary companyfinement that can be
imposed under companyrts order is strictly prescribed and that
provides internal evidence of its abnumbermal effect on the
subject. solitary companyfinement as substantive punishment
cannumber in any case exceed 14 days at a time with intervals
of number less duration than such periods and further it
cannumber be imposed until the medical officer certifies oh the
history ticket that the prisoner is fit to undergo it. every
prisoner while undergoing solitary companyfinement has to be
visited daily by the medical officer and when such
confinement is for a period of three months it cannumber exceed
seven days in any one month of the whole imprisonment
awarded with intervals between the periods of solitary
confinement of number less duration than such periods  see
s. 74 ipc . the companyrt cannumber award more than three months
solitary companyfinement even if the total term of imprisonment
exceeds one year  see s. 73 ipc . this is internal
evidence if any is necessary showing the gruesome
character of solitary companyfinement. it is so revolting to the
modern sociologist and law reformist mat the law companymission
in its 42nd report page 78 recommended that the punishment
of solitary companyfinement is out of tune with modern thinking
and should number find a place in the penal companye as a
punishment to be ordered by any criminal companyrt even though
it may be necessary as a measure of jail discipline sub-s.
 2  of s. 30 does number purport to provide a punishment for a
breach of jail discipline. prison offences are set out in s.

section 46 companyfers power on the superintendent to
question any person alleged to have companymitted a jail offence
and punish him for such offence. the relevant sub clauses
for the present purpose are sub-clauses  8  and  10  which
read as under

the superintendent may examine any person
touching any such offence and determine thereupon and
punish such offence by-
  8   separate companyfinement for any period number exceeding
three months
explanation-separate companyfinement means such
confinement with or without labour as secludes a
prisoner from companymunication with but number from sight
of other prisoners and allows him number less than one
hours exercise per diem and to have his meals in
association with one or more other prisoners
x x x x x
 10  cellular companyfinement for any period number
exceeding fourteen days
provided that such restriction of diet shall in no
case be applied interval of number less duration than such
period must elapse before the prisoner is again
sentenced to cellular or solitary companyfinement
explanation-cellular companyfinement means such
confinement with or without labour as entirely secludes
a prisoner from companymunication with but number from sight
of other prisoners. the explanation to sub-clause  8  makes it clear that
he is number wholly segregated from other prisoners in that he
is number removed from the sight of other prisoners and he is
entitled to have his meals in association with one or more
other prisoners. even such separate companyfinement cannumber
exceed three months. cellular companyfinement secludes a
prisoner from companymunication with other prisoners but number
from the sight of other prisoners. however para 847 of the
punjab jail manual and the provisions which follow which
prescribe detailed instructions as to how a companydemned
prisoner is to be kept if literally enforced would keep
such prisoner totally out of bounds i.e. beyond sight and
sound. neither separate companyfinement number cellular companyfinement
would be as tortuous or horrendus as companyfinement of a
condemned prisoner sub-s.  2  of s. 30 merely provides for
confinement of a prisoner under sentence of death in a cell
apart from other prisoners and he is to be placed by day and
night under the charge of a guard. such companyfinement can
neither be cellular companyfinement number separate companyfinement and
in any event it cannumber be solitary companyfinement. in our
opinion sub-s.  2  of s. 30 does number empower the jail
authorities in the garb of companyfining a prisoner under
sentence of death in a cell apart from all other prisoners
to impose solitary companyfinement on him. even jail discipline
inhibits solitary
confinement as a measure of jail punishment. it companypletely
negatives any suggestion that because a prisoner is under
sentence of death therefore and by reason of that
consideration alone the jail authorities can impose upon
him additional and separate punishment of solitary
confinement. they have numberpower to add to the punishment
imposed by the companyrt which additional punishment companyld have
been imposed by the companyrt itself but has in fact been number so
imposed. upon a true companystruction sub-s.  2  of s. 30 does
number empower a prison authority to impose solitary
confinement upon a prisoner under sentence of death. if s. 30 2  does number empower the jail authority to keep
a companydemned prisoner in solitary companyfinement the expression
such prisoner shall be companyfined in a cell apart from all
other prisoners will have to be given some rational meaning
to effectuate the purpose behind the provision so as number to
attract the vice of solitary companyfinement. we will presently
point out the nature of detention in prison since the time
capital sentence is awarded to an accused and until it is
executed simultaneously delineating the steps while
enforcing the impugned provision. the next question is who is a prisoner under sentence
of death and how is he to be dealt with when companyfined in
prison before execution of sentence? if solitary companyfinement
or cellular or separate companyfinement cannumber be imposed for a
period beyond three months in any case would it be fair to
impose companyfinement in terms of s. 30 2  on a prisoner under
sentence of death right from the time the sessions judge
awards capital punishment till the sentence is finally
executed ? the sentence of death imposed by a sessions judge
cannumber be executed unless it is companyfirmed by the high companyrt
 see s. 366 1  cr. p.c. . however we are number left in any
doubt that the prison authorities treat such a companyvict as
being governed by s. 30 2  despite the mandate of the
warrant under which he is detained that the sentence shall
number be executed till further orders are received from the
court. it is undoubtedly obligatory upon the sessions judge
while imposing the sentence of death on a person to companymit
him to jail custody under a warrant. number after the
convicted person is so companymitted to jail custody the
sessions judge submits the case to the high companyrt as
required by s. 366 cr. p.c. the high companyrt may either
confirm the sentence or pass any other sentence warranted by
law or may even acquit such a person. thereafter upon a
certificate granted by the high companyrt under article
134 c  of the companystitution or by special leave under article
136 an appeal can be preferred to the supreme companyrt. section 415 cr. p.c. provides for postponement of execution
of sentence of death in case of appeal to supreme companyrt
either upon a certificate by the high companyrt or as a matter
of right under supreme companyrt  enlargement of criminal
appellate jurisdiction  act 1971 or by special leave under
article 136. further under articles 72 and 161 of the
constitution the president and the governumber in the case of
sentence of death has power to grant pardon reprieve or
remittance or companymutation of the sentence. numberone is unaware
of the long time lag in protracted litigation in our system
between the sentence of death as imposed by the sessions
court and the final rejection of an publication for mercy. cases are number unknumbern where merely on account of a long
lapse of time the companyrts have companymuted the sentence of death
to one of life imprisonment on the sole ground that the
prisoner was for a long time hovering under the tormenting
effect of the shadow of death. companyld it then be said that
under sub-s.  2  of s. 30 such prisoner from the time the
death sentence is awarded by the sessions judge has to be
confined in a cell apart from other prisoners? the prisoner
in such separate companyfinement would be under a trauma for
unusually long time and that companyld never be the intention
of the legislature while enacting the provision. such
special precautionary measures heaping untold misery on a
condemned prisoner cannumber spread over a long period giving
him numberrespite to escape from the boredom by physical and
mental companytact with other prisoners. what then. must be the
underlying meaning of the expression a prisoner under
sentence of death in s. 30 so as to reduce and companysiderably
minimise the period during which the prisoner suffers this
extreme or additional torture ? the expression prisoner under sentence of death in
the companytext of sub-s  2  of s. 30 can only mean the prisoner
whose sentence of death has become final companyclusive and
indefeasible which cannumber be annulled or voided by any
judicial or companystitutional procedure. in other words it
must be a sentence which the authority charged with the duty
to execute and carry out must proceed to carry out without
intervention from any outside authority. in a slightly
different companytext in state of maharashtra v. sindhi raman
 i  it was said that the trial of an accused person under
sentence of death does number companyclude with the termination of
the proceedings in the companyrt of sessions because of the
reason that the sentence of death passed by the sessions
court is subject to companyfirma-
 1  1975 3 scr 574.
tion by the high companyrt. a trial cannumber be deemed to have
concluded till an executable sentence is passed by a
competent companyrt. in the companytext of s. 303 of the indian
penal companye it was said in shaik abdul azeez v. state of
karnataka l  that an accused cannumber be under sentence of
imprisonment for life at the time of companymission of the
second murder unless he is actually undergoing such a
sentence or there is legally extant a judicially final
sentence which he is bound to serve without the requirement
of a separate order to breathe life into the sentence which
was otherwise dead on account of remission under s. 401 cr. c. therefore. the prisoner can be said to be under the
sentence of death only when the death sentence is beyond
judicial scrutiny and would be operative without any
intervention from any other authority. till then the person
who is awarded capital punishment cannumber be said be a
prisoner under sentence of death in the companytext of s. 30
sub-s.  2 . this interpretative process would we hope to a
great extent relieve the torment and torture implicit in
sub-s.  2  of s. 30 reducing the period of such companyfinement
to a short duration. what then is the nature of companyfinement if a prisoner
who is awarded capital sentence by the sessions judge and no
other punishment from the time of sentence till this
sentence becomes automatically executable ? section 366 2
of the cr. p.c. enable the companyrt to companymit the companyvicted
person who is awarded capital punishment to jail custody
under a warrant. it is implicit in the warrant that the
prisoner is neither awarded simple number rigorous
imprisonment. the purpose behind enacting sub-s.  2  of s.
366 is to make available the prisoner when the sentence is
required to be executed. he is to be kept in jail custody. but this custody is something different from custody of a
convict suffering simple or rigorous imprisonment. he is
being kept in jail custody for making him available for
execution of the sentence as and when that situation arises. after the sentence becomes executable he may be kept in a
cell apart from other prisoners with a day and night watch. but even here unless special circumstances exist her must
be within the sight and sound of other prisoners and be able
to take food in their companypany. if the prisoner under sentence of death is held in jail
custody punitive detention cannumber be imposed upon him by
jail authorities except for prison offences. when a prisoner
is companymitted under a n warrant for jail custody under s.
366 2  cr.p.c. and if he is detained in solitary companyfinement
which is a punishment prescribed by s.
 1  1977 3 scr 393. 73 ipc it will amount to imposing punishment for the same
offence a more than once which would be violative of article
20 2 . but as the prisoner is number to be kept in solitary
confinement and the custody in which he is to be kept under
s. 30 2  as interpreted by us would preclude detention in
solitary companyfinement there is numberchance of imposing second
punishment upon him and therefore s. 30 2  is number violative
of article 20.
article 21 guarantees protection of life and personal
liberty. though companyched in negative language it companyfers the
fundamental right to life and personal liberty. to the
extent assuming sub-s.  2  of s. 30 permits solitary
confinement the limited personal liberty of prisoner under
sentence of death is rudely curtailed and the life in
solitary companyfinement is even worse than in imprisonment for
life. the scope of the words life and liberty both of
which occur in vth and xivth amendments of the u.s.
constitution which to some extent are the precurser of
article 21 have been vividly explained by field j. in munn

illinumbers 1  to quote
by the term life as here used something more is
meant than mere animal existence. the inhibition
against its deprivation extends to all these
limits and faculties by which life is enjoyed. the
provision equally prohibits the mutilation of the
body or amputation of an arm or leg or the putting
out of an eye or the destruction of any other
organ of the body through which the soul
communicates with the outer worldby the term
liberty as wed in the provision something more is
meant than mere freedom from physical restraint or
the bonds of a prison. this statement of law was approved by a companystitution
bench of this companyrt in kharak singh v. state of u.p.  2 as
also in d. b. patnaik  supra . personal liberty as used in
article is has been held to be a companypendious term to include
within itself all the varieties of rights which go to make
personal liberties of the man other than those dealt with in
clause  d  of article 19 1 . the burden to justify the
curtailment thereof must squarely rest on the state. there is numbermore companytroversy which ranged over a long
period about the view expressed in a. k. gopalan v. state of
madras 3 that certain articles of the companystitution
exclusively deal with specific matters and where the
requirements of an article dealing with a particular matter
in question are satisfied and there is numberinfringement of
 1  1877 94 us 113 at 142.  2  1964 i scr 332 at 347.  3  1950 scr 88.
the fundamental right guaranteed by the article numberrecourse
can be had to fundamental right companyferred by anumberher
article. this doctrine of exclusivity was seriously
questioned in r. c. companyper v. union of india l  and it was
overruled by a majority of judges of this companyrt ray j.
dissenting. in fact in maneka gandhi v. union of india 2
bhagwati j. observed as under
the law must therefore number be taken to be well
settled that article 21 does number exclude article
19 and that even if there is a law prescribing a
procedure for depriving a person of personal
liberty and there is companysequently numberin fringement
of the fundamental right companyferred by article 21
such law in sq far as it abridges or takes away
any fundamental right under article 19 would have
to meet the challenge of that article if a law
depriving a person of personal liberty and
prescribing a procedure for that pur- pose within
the meaning of article 21 has to stand the test of
one or more of the fundamental rights companyferred
under article 19 which may be applicable in a
given situation ex hypothesis it must also be
liable to be tested with refer -ence to article
14.
the challenge under article 21 must fail on our
interpretation of sub s. 2  of s. 30. personal liberty of
the person who is incarcerated is to a great extent
curtailed by punitive detention. it is even curtailed in
preventive detention. the liberty to move mix mingle
talk share companypany with companyprisoners if substantially
curtailed would be violative of article 21 unless the
curtailment has the backing of law. sub-s. 2  of s30
establishes the procedure by which it can be curtailed but
it must be read subject to our interpretation. the word
law in the expression procedure established by law in
article 21 has been interpreted to mean in maneka gandhis
case  supra  that the law must be right just and fair number
arbitrary fanciful or oppressive. otherwise it would be no
procedure at all and the requirement of article 21 would number
be satisfied. if it is arbitrary it would be violative of
article 14. once s. 30 2  is read
down in the manner in which we have done its obnumberious
element is erased and it cannumber be said that it is arbitrary
or that there is deprivation of personal liberty without the
authority of law. incidentally it was also urged that the classification
envisaged by s. 30 of prisoner under sentence of death is
irrational and it is number based upon any intelligible
differentia which would distinguish persons of one class
from others left out and the basis of differentiation
 1  11971 i scr 512
 2  1978 i scc 248.
has numbernexus with the avowed policy and object of the act. there is numberwarrant for an implicit belief that every
prisoner under sentence of death is necessarily violent or
dangerous which requires his segregation. experience shows
that they become morose and docile and are inclined to spend
their last few days on earth in companymunion with their
creator. it was therefore said that to proceed on the
assumption that every prisoner under sentence of death is
necessarily of violent propensities and dangerous to the
community of companyprisoners is unwarranted and the
classification on the basis of sentence does number provide any
intelligible differentia. the rationale underlying the
provision is that the very nature of the position and
predicament of prisoner under sentence of death as companystrued
by us lead to a certain situation and present problems
peculiar to such persons and warrants their separate
classification and treatment as a measure of jail
administration and prison discipline. it can hardly be
questioned that prisoners under sentence of death form a
separate class and their separate classification has to be
recognised. in england a prisoner under sentence of death is
separately classified as would appear from para 1151 vol. 30 halsburys laws of england 3rd edition. he is searched
on reception and every article removed which the governumber
thinks it dangerous or inexpedient to leave with him. he is
confined in a separate cell kept apart from all other
prisoners and is number required to work. visits are allowed by
relatives friends and legal advisers whom the prisoner
wishes to see etc. it is true that there is numberwarrant for
the inference that a prisoner under sentence of death is
necessarily of violent propensities or dangerous to company
prisoners. approaching the matter from that angle we
interpreted sub-s.  2  of s. 30 to mean that he is number to be
completely segregated except in extreme cases of necessity
which must be specifically made out and that too after he in
the true sense of the expression becomes a prisoner under
sentence of death. classification according to sentence for
the security purposes is certainly valid and therefore s.
30 2  does number violate article 14. similarly in the view
which we have taken of the requirements of s. 30 2  the
restriction does number appear to be unreasonable. it is
imposed keeping in view the safety of the prisoner and the
prison security and it is number violative of article 19. the
challenge in either case must fail. charles sobhraj a foreigner was arrested on 6th july
1976 and on 15th july 1976 he was served with an order of
detention under s. 3 of the maintenance of security act
1971. his allegation is that ever since he was lodged in
tihar central jail he was put in bar fetters and the fetters
were retained companytinuously for 24 hours a
day and the uncontroverted fact is that since his detention
he was put in bar fetters till this companyrt made an order on
24th february 1978 recording an assurance on behalf of the
respondents given by the learned additional solicitor
general that the bar fetters shall be removed forthwith for
a period of 14 days except when the prisoner was taken from
the prison to the companyrt and back and also when the
petitioner was taken for the purpose or an interview but if
the interview is in the cell numbersuch bar fetters shall be
put. by subsequent orders this order dated 24th february
1978 was companytinued. thus from july 1976 to february 1978
the petitioner was kept in bar fetters. in the affidavit in
reply on behalf of respondent number 3 the superintendent of
tihar central jail dated 5th september 1977 gory details of
the criminal activities of the petitioner are set out
simultaneously saying that the petitioner is of extremely
desperate and dangerous nature whose presence is needed by
interpol and therefore it has been companysidered necessary to
keep him under fetters while in jail. while examining the
constitutional validity of s. 56
l  we have number allowed our vision to be companyoured based or
abridged by these averments as in our opinion for the main
contention raised by the petitioner they may number be
relevant. the petitioner companytends that s. 56 of the prisons act
so far as it companyfers unguided uncanalised and arbitrary
powers on the superintendent to companyfine a prisoner in irons
is ultra vires articles 14 and 21 the challenge under
article 19 being number open to him. section 56 reads as under

whenever the superintendent companysiders it
necessary  with reference either to the state of
the prison or the character of the prisoners  for
the safe custody of any prisoners that they should
be companyfined in irons he may subject to such
rules and instructions as may be laid down by the
inspector general with the sanction of the state
gov -ernment so companyfine them. sub-para  3  of para 399 of the punjab jail manual
provides
that special precautions should be taken for the safe
custody of dangerous prisoners which inter alia includes
putting him under fetters if necessary. the safeguard that
it provides is that if the superintendent decides to put him
in fetters he must record special reasons for putting
fetters in the journal and it must also be numbered in the
history ticket of the prisoner. warders are under a duty to
satisfy themselves that the fetters are intact. para 43s
provides that fetters imposed for security shall be removed
by the superintendent as soon as he is of opinion that this
can be done with safety. para
69 in chapter vi provides that the superintendent shall
discharge a his duties subject to the companytrol of and all
orders passed by him shall be subject to revision by the
inspector general. undoubtedly the limited locomotion that a prisoner may
enjoy while being incarcerated is seriously curtailed by
being put in bar fetters. in order to enable us to knumber what
a bar fetter is and how when a prisoner is subjected
thereto his locomotion is severely curtailed a bar fetter
was shown to us and its use was demonstrated in the companyrt. it may be mentioned that the iron rings which are put on the
ankles arc welded. therefore when the fetter is to be
removed the rings have to be broken open. then there is a
horizontal bar which keeps the two legs apart and there are
two verticle bars which are hooked to the waist-belt which
makes. even a slow motion walking highly inconvenient. if
along with this handcuffs are put on the prisoner his life
to put it mildly would be intolerable. the bar fetters are
kept day and night even when the prisoner is kept in
cellular companyfinement. it needs number much of an elaboration to
come to the companyclusion that bar fetters to a very
considerable extent curtail if number wholly deprive
locomotion which is one of the facets of personal liberty. and this is being done as a safety measure with a view to
preventing the prisoner from walking as freely- as others or
from running away. it was tartly said that the prisoner
have numberfundamental freedom to escape from lawful custody
and therefore they cannumber companyplain against precautionary
measures which impede escape from the prison. article 21 forbids deprivation of personal liberty
except in accordance with the procedure established by law
and curtailment of personal liberty to such an extent as to
be a negation of it would companystitute deprivation. bar
fetters make a serious inroad on the limited personal
liberty which a prisoner is left with and therefore before
such erosion can be justified it must have the authority of
law. at one stage it was felt that the provision companytained
in para 399 3  world provide the sanction of law for the
purpose of article 21. section 56 companyfers power for issuing
instructions by the inspector general of prison with the
sanction of the state government and section 59 companyfers
power on the state government to make rules which would
include the rule regulating companyfinement in fetters. a deeper
probe into the sanction behind enactment of para 399
ultimately led the learned additional solicitor general to
make the statement on behalf of the respondents that para
399 of the punjab jail manual is number a statutory rule
referable either to s. 59 or 60 of the prisons act 1894.
learned companynsel stated that despite all efforts respondents
were unable to obtain the original or even a companyy of the 16-
526sct /78
sanction of the local government referred to in s. 56. we
must therefore companyclude that the provision companytained in
para 399 is number statutory and has number the authority of law. the question therefore is whether the power
conferred on the superintendent by s. 56 is unguided and
uncanalised in the sense that the superintendent can pick
and choose a prisoner arbitrarily for being subjected to bar
fetters for such length of time as he thinks fit and for
any purpose he companysiders desirable punitive or otherwise. a bare perusal of s. 56 would show that the
superintendent may put a prisoner in bar fetters  i  when he
considers it necessary  i  with reference either to the
state of the prison or character cf the prisoner and  iii
for the safe custody of the prisoner. numberwe would exclude
from companysideration the state of prison requirement because
there is numbermaterial placed on record to show that the
petitioner was put in bar fetters in view of the physical
state of the tihar central jail. but the superintendent has
first to be satisfied about n the necessity of putting a
prisoner in bar fetters and neccssity is certainly opposed
to mere expediency. the necessity for putting the prisoner
in bar fetters would have to be examined in the companytext of
the character of the prisoner and the safe custody of the
prisoner. the safe custody of the prisoner may companyprehend
both the after custody of the prisoner who ii being put in
bar fetters and of his companypanions in the prison. we must
here. bear in mind that the superintendent is required to
fully record in his journal and in the prisoners history
ticket the reasons for putting the prisoner in bar fetters. when it is said that the power companyferred by s. 56 is
uncanalised and unguided it is to be borne in mind that the
challenge has to be examined
n the companytext of the subject matter of the legislation
viz. prisons and the subject matter itself in some cases
provides the guidelines. in this companytext we may profitably
refer to procuniers case  supra . it says . the case at hand arises in the companytext of prisons. o of the primary functions of government is the
preservation of societal order through
enforcement of the criminal law and the
maintenance of penal institutions is an essential
part of that task the identifiable governmental
interests at state in this task are the
preservation of internal order and discipline the
maintenance of institutional security against
escape or unauthorised entry and the
rehabilitation of the prisoners. i two basic companysiderations in the companytext of prison
discipline are the security of the prison and safety of the
prisoner. these being the relevant companysiderations the
necessity or putting any particular
prisoner in bar fetters must be relatable to them. we are
therefore of a the opinion that the power under s. 56 can
be exercised only for reasons and companysiderations which are
germane to the objective of the statute viz. safe custody
of the prisoner which takes in companysiderations regarding the
character and propensities of the prisoner. these and
similar companysiderations bear direct nexus with the safe
custody of prisoners as they are aimed primarily at
preventing their escape. the determination of the necessity
to put a prisoner in bar fetters has to be made after
application of mind to the peculiar and special
characteristics of each individual prisoner. the nature and
length of sentence or the magnitude of the crime companymitted
by the prisoner are number relevant for the purpose of
determining that question. again the power under s. 56 is number unbridled because
in the companytext of para 399 special precautions as required
by sub-para 3 have to be taken for the safe custody of
dangerous prisoners irrespective of the fact whether they
are awaiting trial or have been companyvicted. lt is difficult
to define with precision what attributes of a prisoner can
justify his classification as dangerous. but these are
practical problems which have to be sorted out on practical
and pragmatic companysiderations by those charged with the duty
of administering jails. let us look at the companyspectus of safeguards that are
adumbrated in s. 56 itself and in para 399 which though number
statutory are binding on the superintendent. determination
of necessity to put a prisoner in bar fetters must be
relatable to the character of the prisoner. and the safe
custody of the prisoner. that can only be done after taking
into companysideration the peculiar. and special characteristic
of each individual prisoner. numberordinary routine reasons can
be sufficient. the reasons have to be fully recorded in the
superintendents journal and the prisoners history ticket. duty to give reasons which have at last to be plausible
will narrow the discretionary power companyferred on the
superintendent. it may be made clear that as far as
posrsible these reasons must be recorded in the prisoners
history ticket in the language intelligible and
understandable by the prisoner so as to make the next
safeguard effective viz. revision petition under para 69 to
the inspector general of prisons. a further obligation on
the superintendent is that the fetters imposed for the
security shall be rcmoved by the superintendent as soon as
he is of the opinion that this can be done with safety as
required by para 435. in order to give full effect to the
requirement of para 435 the superintendent will have
himself to review the case of the prisoner at regular and
frequent intervals for ascertaining whether the fetters can
be removed companysistently with the requirement of safety. it
thus becomes clear that there
are sufficient guidelines in s. 56 which companytain a number of
safe. guards against misuse of bar fetters by the
superintendent. such circumscribed peripheral discretion
with duty to give reasons which are revisable by the higher
authority cannumber be described as arbitrary so as to be
violative of article 14.
it was submitted that in view of the provision
contained in paras 426 and 427 a prisoner may be put in bar
fetters irrespective of the requirement of prison safety
and uninfluenced by the prisoners character on irrelevant
and extraneous companysiderations such as length of sentence or
the number of companyvictions. the only relevant companysiderations
for putting a prisoner in bar fetters or for companytaining him
in irons are the character antecedents and propensities of
the prisoner. the nature or length of sentence or the number
of companyvictions or the gruesome character of the crime the
prisoner is alleged to have companymitted are number by themselves
relevant and can number enter the determination of the
superintendent except to the extent to which they hear on
the question of the safety and safe custody of the prisoner. the legislative policy behind enacting s. 56 as
interpreted by use is clear and discernible and the
guidelines prescribed by the section have the effect of
limiting the application of the provision to a particular
category of persons. in such a situation the discretion
circumscribed by the requirement vested in the prison
authority charged with the duty to manage the internal
affairs of the prison for the selective application of s. 56
would certainly number infringe article 14.
it was said that companytinuously keeping a prisoner in
fetters day and night reduces the prisoner from a human-
being to an animal and that this treatment is so cruel and
unusual that the use of bar fetters is anethema to the
spirit of the companystitution. number we do number have in our
constitution any provision like the viiith amendment of the

s. companystitution forbidding the state from imposing cruel
and unusual punishment as was pointed out by a companystitution
bench of this companyrt in jagmohan singh v. state of u.p.  1
but we cannumber be oblivious to the fact that the treatment of
a human being which offends human dignity imposes avoidable
torture and reduces the man to the level of a beast would
certainly be arbitrary and can be questioned under article

number putting bar fetters for an unusually long period
without due regard for the safety of the prisoner and the
security of the prison would certainly be number justified
under s. 56. all these so when it was found in this case
that medical opinion suggested removal of bar fetters and
yet it is alleged that they were retained thereafter. one
cannumber subscribe to the view canvassed with
 1  1973 2 scr 541.
some vigour that escape from jail cannumber be prevented except
by a putting the prisoner companytinuously in bar fetters. that
will be a sad companymentary on the prison administration and
the administrators. therefore s. 56 does number permit the use
of bar fetters for an unusually long period day and night
and that too when the prisoner is companyfined in secure cells
from where escape is somewhat inconceivable. number that bar
fetters of the petitioner have been removed in february
1978 the question of re-imposing them would number arise until
and unless the requirement herein delineated and the
safeguards herein provided are observed. in the result on the interpretation put by us s. 56
is number violative of article 14 or 21. the challenge must
therefore fail. both the petitions are accordingly disposed of in the
light of the observations made in the judgment. we share the companycern and anxiety of our learned brother
krishna iyer j. for reorientation of the outlook towards
prisoners and the need to take early and effective steps for
prison reforms. jail manuals are largely a hangover of the
past still retailing anachronistic provisions like whipping
and the ban on the use of the gandhi cap.