ORIGINAL JURISDlCTION: Writ Petition (Crl.) Nos. 2546 47 of 1983.
(Under Article 32 of the Constitution of India).
Parijat Sinha for the Petitioners.
B. Datta, Additional Solicitor General, N.L. Kakkar and Miss A. Subhashini for the Respondents.
Ms. Nityaramakrishnan, A.K. Panda. Mrs. M. Karanjawala, Mrs. Urmila Kapoor and Ranjan Dwivedi for the Interveners.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. These two applications under Article 32 of the Constitution are in the nature of a public interest litigation. A news reporter and a trainee subeditor have moved this Court for appropriate directions to the Delhi Administration and the authorities of the Central Jail at Tihar, pointing out features of maladministration within the jail relating to juvenile undertrial prisoners. During the pendency of the proceedings, the Court made several orders with reference to juvenile prisoners and undertrials. On 8th October, 1983 this Court directed:
"When these writ petitions came up for
hearing before us we had certain hesitation in
entertaining them because another petition was
pending in the High Court of Delhi in regard to
juvenile prisoners in Tihar Jail where some
directions had been given by the High Court and we
were anxious to avoid a parallel investigation
particularly since in matters of this kind it is
desirable that the High Courts should be
activised. But since no inquiry into the
conditions prevailing in the Tihar Jail, in so far
prisoners in the juvenile ward are concerned, had
been ordered and what was ordered was only a
limited inquiry relating to medical examination of
7 juvenile prisoners who were directed to be
produced in court, we thought that we would be
failing in our constitutional duty if we do not
take judicial action and direct the District Judge
to visit Tihar Jail for making inquiry into the
conditions prevailing in the Tihar Jail in so far
as the prisoners in the juvenile ward are
concerned. We decided to entrust this task to the
District Judge because he is even otherwise
visitor at the Tihar Jail and we thought it would
be better to sent an officer who is ultimately
responsible for ensuring proper conditions in the
Tihar Jail rather than entrust this work to an
outside organisation or agency. We are glad that
we made this order because the Report made by the
District Judge discloses a shocking state of
affairs in so far as juvenile prisoners are
concerned. The District Judge has interviewed some
of the juvenile prisoners in regard to whom he
learnt, as a result of the inquiry made by him,
that they had been subjected to sexual assault by
the adult prisoners. The juvenile prisoners who
made statements before the District Judge have
expressed apprehension that they might get into
difficulties and be victimised if their names are
disclosed and the District Judge has also
suggested in his Report that either the names
should not be disclosed or if the names of these
juvenile prisoners are disclosed, adequate
protection should be granted to them. We do not
think it would be right not to disclose the names
of these juvenile prisoners while supplying copies
of the Report of the District Judge to the
advocates of the parties but we do think it
necessary to provide adequate protection to them.
We would, therefore, direct that the following
undertrial juvenile prisoners, namely .......
shall be released immediately in the course of the
day on their executing a bond of Rs.500 each
before the superintendent of Tihar Jail. There are
also three convicted juvenile prisoners in the
Tihar Jail, namely ..... who have given
statements to the District Judge They should be
released forthwith on parole for a period of one
month on their executing a bond for Rs.500 each
before the Superintendent of Tihar Jail that they
will surrender themselves to the jail authorities
on the expiration of the period of one month The
release of these three convicted juvenile
prisoners on parole will also be done in the
course of the day. We may make it clear that we
are making this order for release of the
aforementioned juvenile prisoners- undertrial as
well as convicted-only with a view to protecting
them and we are, at the present moment, not
passing upon the correctness or otherwise of the
statements made by them.
The learned Additional Solicitor General on
behalf of the respondents states that Munshi
Rajinder Singh alias Raju will be forthwith
transferred from the Tihar Jail and that in any
other jail to which he is transferred, it will be
ensured that he does not have anything to do at
all with juvenile prisoners. This transfer shall
also be carried out forthwith. Meanwhile, the
Superintendent of Tihar Jail will take steps to
ensure that Munshi Rajinder Singh alias Raju is
not allowed any access to the juvenile ward and is
also not allowed to come into contact in any
manner what-soever with the prisoners in the
juvenile ward and this will be the personal
responsibility of the Superintendent of Tihar
Jail. So far as the warder Onkar Singh (who has
also been referred to in the report of the
District Judge) is concerned, the learned
Additional Solicitor General appearing on behalf
of the respondents states that immediate steps
will be taken to place him under suspension and in
the meanwhile, he will not be allowed to go inside
the premises of Tihar Jail. The Superintendent of
Tihar Jail will also ensure that no juvenile
prisoner is directed to go to the cell of any
adult prisoner or prisoners or to do any work for
them including cooking or cleaning.
The learned Additional Solicitor General
states on behalf of the respondents that there are
a number of juvenile undertrial prisoners whose
cases require to be considered for the purpose of
releasing them on bail and that he would prepare a
chart setting out the names and
particulars of these undertrial prisoners and
place such chart before the court on 31st October,
1983 for passing appropriate orders ............. On the 31st October, 1983, the Court made a further order to the following effect:
"............ The learned counsel for the
respondents will intimate to the Court as to which
of the 131 juvenile prisoners confined in Tihar
Jail whose names are mentioned in the Chart handed
over by the learned Additional Solicitor General
appearing on behalf of the respondents are to be
released on bail, having regard to the nature of
the offences alleged to have been committed by
them and other relevant circumstances which have
already been set out by this Court in Hussainara
Khaoon’s case. We would also like to know as what
is the procedure being followed by the Courts of
Metropolitan Magistrates in Delhi when a young
accused is produced before them for the purpose of
ascertaining whether he is a child or not within
the meaning of the Children’s Act and if he is not
a child and is sent to judicial custody then what
is the procedure being followed by the
Superintendent of the Tihar Jail for determining
whether he is juvenile within the meaning of Jail
Manual where a juvenile is defined as a prisoner
who has not attained the age of 18 years. We are
anxious to ensure that no child within the meaning
of the Children’s Act is sent to the jail because
otherwise the whole object of the Children’s Act
of protecting the child from bad influence of jail
life would be defeated. It is also a matter of
anxiety for us to see that juveniles between the
age of 16 to 18 years who are put in custody in
the jail are being kept in separate ward and are
allowed to intermingle with adult prisoners
because that would also expose them to mal-
influences which may prevent their proper
rehabilitation .. " . Several other interlocutory orders and directions were given and the Sessions Judge was requested to visit the jail on more than one occasion under order of the Court. He made very useful reports. As a result of these exercises taken during the pendency of the writ petitions, one substantial achievement has been that Tihar Jail no more accommodates juvenile delinquents and their jail has been separated. On account of the repeated directions from this Court the jail administrating has now been obliged to undertake erection of a separate jail as an additional place for housing juvenile prisoners and undertrials and the construction is coming up, as reported. On account of the exposure, the Jail administration has been obliged to place the administrating of the jail in the hands of a superior officer.
Monitoring the affairs of a jail is a difficult job for this Court but on account of the fact that the Tihar Jail is in the Capital of the country and on account of the advantages of publicity available through the media and otherwise, affairs of the jail have received due publicity over the last four years where these matters have been pending before this Court and it is time that we should dispose them of finally.
We had called upon counsel for the parties to furnish their suggestion for improvement of the jail administration and pursuant to this direction counsel for the petitioners has given certain suggestions on two instalments. Learned Additional Soliicitor General has also joined her in making certain suggestions in that regard. Before we refer to them we think it appropriate to emphasise that those who are incharge of the jail administration from bottom to top must develop the proper approach to deal with the prisoners and undertrials. It is true that a considerable number of hardened prisoners live in the jail and those who have a longer term of sentence to suffer stay on for quite a part of their life behind the prison bars. Longer stay at one place brings in familiarity and familiarity generates a number of human reactions. There is no provision in the jail manuals and, perhaps it is difficult as a rule to adopt, that the long-term prisoners should keep on shifting from jail to jail. Whatever may have been the philosophy of punishment in the past, today the prison house is looked upon as a reformatory and the years spent in the jail should be with a view to providing rehabilitation to the prisoner after the sentence is over. That would not be possible overnight and, therefore, cannot be deferred to materialise on the date of release. The wrong side has to be given up and the virtuous way of living has to be acquired. Both are difficult processes. Therefore, the prison house, in case the true purpose is to be achieved, has to provide the proper atmosphere, leadership, environment, situations and circumstances for the regeneration. Members of the staff of the jail from bottom to top (we have purposely not said top to bottom) must be made
SANJAY cognizant of this responsibility and that awareness must be reflected in their conduct. Judicial notice can be taken of prevailing conditions in our jails and what we have stated above is still utopian. But if a change has to brought about it has to start from somewhere and Tihar Jail, in our opinion, is probably most suited for that purpose being located at the seat of the national capital and being under the direct management of the Union of India (through, of course, the Delhi Administration). This can be the institution to set the move in motion.
The work load of superintendence should be distributed in a graded way and the officers should have the direct charge of such divided responsibilities. It is necessary that a large dose of good living should be introduced into jail life. Ordinarily religious teaching would carry a level of elevation in that regard. Ours being a Secular State there may perhaps be in immediate counter-reaction to religion being tolerated anywhere but we never intend to speak of that religion which is enigmatic to the concept of secularism. We refer to the essence of all religions-a factor common to every religion humanism-which is so much necessary for good living. We hope and trust that the jail administration and in particular the Administrator take into consideration this aspect and try to generate a sense of humanism in these officers and those in the ranks below them so that the prisoners should have direct contact with them and benefit by every contact with those officers in getting round to the right approach in life.
It is time to turn to brass facts. We have come across cases where the warrant, be it for the undertrial or the prisoner, when sent by the court does not indicate the age of the prisoner authorised to be detained in the jail. This is a very wrong practice and is obviously in breach of the direction issued by this Court. We call upon every Magistrate or trial Judge authorised to issue warrants for detention of prisoners to ensure that every warrant authorising detention specifies the age of the person to be detained Judicial mind must be applied in cases where there is doubt about the age-not necessarily by a trial-and every warrant must specify the age of the person to be detained. We call upon the authorities in the jails throughout India not to accept any warrant of detention as a valid one unless the age of the detenu is shown therein. By this order of ours, we make it clear that it shall be open to the jail authorities to refuse to honour a warrant if the age of the person remanded to jail custody is not indicated. It would be lawful for such officers to refer back the warrant to the issuing court for ractifying the defect before it is honoured. Since it will create problems in keeping the undertrial or the prisoner during the intervening period, the judicial officer should realise his responsibility in accepting this direction and giving full effect to it. In exceptional cases, when the warrant is referred back for rectification, the person covered by the warrant may be kept at the most for a week pending rectification, and taking responsibility of the situation. On the basis of the age indicated in the warrant, it shall be the obligation of the jail authorities to find out, so far as Delhi is concerned, whether the prisoner covered by the warrant should be detained in the Tihar Jail or in the Juvenile Jail.
Though the place of stay has now been segregated, there is possibility of contact between the hardened criminals and the juvenile delinquents if there is no proper segregation in assignment of work. We direct that due care shall be taken to ensure that the juvenile delinquents are not assigned work in the same area where regular prisoners are made to work. Care should be taken to ensure that there is no scope for their meeting and having contacts.
We direct that steps should be taken to shift the warders at the end of every three years. This is a principle which had been accepted in the Punjab Jail Manual (Chapter VI, Rule 273) Delhi Administration has a difficulty in doing so in a real way because it has only one jail and may have one more when the other jail under construction comes up, but there is no other place to which warders can be transferred. The Administration should take note of the situation; the rules should be changed and the warders may either by inter-changed with some other category of service working outside the jail or a common Union Territory service could be set up to permit the same. Such transfer will indeed be helpful in restoring discipline in the jail.
The Visitors’ Board should consist of cross sections of society; people with good background, social activists, people connected with the news media, lady social workers, jurists, retired public officers from the Judiciary as also the Executive. The Sessions Judge should be given an acknowledged position as a visitor and his visits should not routine ones. Full care should be taken by him to have a real picture of the defects in the administration qua the resident prisoners and undertrials.
Over-crowding in jails is a regular feature. As against a sanctioned capacity of 2,023, on the average 4,000 prisoners are lodged in the Tihar Jail. We hope and trust that this aspect will be kept in view, though from a practical point over-crowding may to a reasonable aspect, have to be tolerated. We hope with the commissioning of the new jail, pressure in this regard to some extent would be reduced.
The writ petitions are disposed of with these directions. There would be no order for costs.
We place on record our appreciation of the services rendered by the petitioners by bringing the matter before the Court. N .P.V. Petitions Disposed of.