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Article 21 in The Constitution Of India 1949
Article 19 in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Article 19(1)(d) in The Constitution Of India 1949
Article 5 in The Constitution Of India 1949
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Supreme Court of India
Charles Sobraj vs The Suptd., Central Jail, Tihar. ... on 31 August, 1978
Equivalent citations: 1978 AIR 1514, 1979 SCR (1) 512
Author: V Krishnaiyer
Bench: Krishnaiyer, V.R.
           PETITIONER:
CHARLES SOBRAJ

	Vs.

RESPONDENT:
THE SUPTD., CENTRAL JAIL, TIHAR. NEW DELHI

DATE OF JUDGMENT31/08/1978

BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)

CITATION:
 1978 AIR 1514		  1979 SCR  (1) 512
 1978 SCC  (4) 104
 CITATOR INFO :
 R	    1980 SC 898	 (83,140)
 RF	    1980 SC2147	 (43,63)


ACT:
       Powers of the Supreme Court to interfere to right the
wrong and  restore the	rule of	 law-Constitution  of  India
1950, Art. 136.
       Fundamental  Rights-Whether the	prisoners can invoke
their  constitutional	rights	under	Part  III   of	 the
Constitution-Prison justice and Art. 21 of the Constitution-
Prison justice is a sort of solemn covenant running with the
power  of  the	Court  to  sentence  the  accused-  Judicial
discretion vis-a-vis  prison  administration  and  prisoners
rights,	 explained-  Correctional  confinement	and  Court's
jurisdiction.



HEADNOTE:
      The petitioner a convict having to serve two sentences
of long	 imprisonment, plus  record of	one escape  and	 one
attempt of  suicide and	 interpol. reports  of	many  crimes
abroad in addition to several cases pending in India against
him, through this writ petition contended that barbarity and
inhuman	 treatment   have  been	  hurled  at  him  and	that
intentional discrimination  has been his lot throughout and,
therefore sought  the assistance or this Court for directing
the  jail   authorities	 to  give  him	finer  foreigner  as
companions, and to remove him from a high security ward like
Ward-l to a more relaxed ward, be invoking the provisions of
Articles 14, 19 and 21 of the Constitution.
     Dismissing the Writ Petition the Court,
^
       HELD:  (1) Imprisonment	does not  spell farewell  to
fundamental rights  although, by  a realistic re-appraisal,,
Courts will refuse to recognise the full panoply of Part lII
of the	Constitution enjoyed  by a  free  citizen.  Whenever
fundamental rights  are flouted	 or  legislative  protection
ignored to  any prisoner's prejudice, this Court's writ will
run breaking through stone walls and iron bars, to right the
wrong and  restore the	rule of	 law. Then the parrot-cry of
discipline thrill  not deter, of security will not scare, of
discretion will	 not dissuade,	the judical  process. For if
courts 'cave  in' when	great rights  and sound	 within	 the
sound-proof, sight-proof  precincts of	prison houses  where
often disenters	 and minorities are caged, Bastilles will be
re-enacted.  When  law	ends  tyranny  begins,	and  history
whispers, iron	has never  ben the  answer to  the rights of
men.[514 H, 515 A-Bl
     (2) Art. 21 of the Constitution read with Art. 19(1)(d)
and (5)	 is capable  of wider  application than the imperial
mischief which give its birth and must draw its meaning from
the evolving  standards of decency and dignity that mark the
progress of  a mature society. Fair procedure is the soul of
Art. 21, reasonableness of the restriction is the essence of
Art.  19(5)   and  sweeping   discretion  degenerating	into
arbitrary   discrimination   is	  anthema   for	  Art.	 14.
Constitutional Karuna  is thus	injected into  incarceratory
strategy to produce prison justice.[ 515  CD]
      Sunil Batra v. Delhi Admn. & ors. and Charles Gurumukh
Sobraj. State of Delhi [1979] I SCR 392 referred to,
513
       Kharak  Singh v.	 State of  U.P. [1964]	1 SCR  357 ;
applied.
      (3) Prison justice implies Court's continuing duty and
authority to ensure that the judicial warrant which deprives
a person  of his  life or liberty is not exceeded, subverted
or stultified.	It is a sort of solemn covenant running with
the power  to sentence.	 Where a prison practice or internal
instruction  places   harsh  restrictions   on	jail   life,
breaching guaranteed  rights, the  Court directly  comes in.
Every prison  sentence is  a conditioned deprivation of life
auld liberty.  with civilized  norms built  in and unlimited
trauma interdicted.  In this sense judicial policy of prison
practices is  implied in  the sentencing power. The Criminal
judiciary have	thus a	duty to guardian their sentences and
visit prisons  when necessary.	The penological	 goals which
may be	regarded as reasonable justification for restricting
the  right   to	 move	freely	within	the  confines  of  a
penitentiary are  now well  settled. And  if prisoners	have
title to  Articles 19,	21 and	14 rights,  subject  to	 the
limitations,  there   must  be	 some  correlation   between
depriviation  of   comfort  and	 legitimate  function  of  a
correctional system. [515 G, 516-E, F-G]
	    (4	)  Deterrence,	both  specific	and  general
rehabilitation,	 and   institutional  security	 are   vital
considerations. Compassion  wherever  possible	and  cruelty
only  where   inevitable  is   the   art   of	correctional
confinement. When  prison policy advances such a valid goal,
the Court will not intervene officiously. But when an inmate
is cruelly  restricted in  a manner  which supports  no such
relevant purpose,  the restriction  becomes unreasonable and
arbitrary,  and	  unconstitutionality  is  the	consequence.
Traumatic  futility  is	 obnoxious  to	pragmatic  legality.
Social defence	is the	raison d'etre  of the penal code and
bears upon judicial control over prison administration. If a
whole atmosphere  of constant  fear  of	 violence,  frequent
torture and  denial of	opportunity to	improve	 oneself  is
created or  if medical facilities and basic elements of care
and comfort necessary to sustain life are refused, then also
the humane jurisdiction of the Court will become operational
based on Art.. 19. [516 G-H, 517 D-E]
	 5) Prisoners  retain all  rights  enjoyed  by	free
citizens except	 those lost  necessarily as  an incident  of
confinement. Rights  enjoyed by	 prisoners under Arts 14, 19
and 21	though limited are not static and will rise to human
heights when challenging situations arise. [518 A-B]
     R. C. Cooper v. Union of India, [1971] 1 CR 512; Menaka
Gandhi v. F Union of India & Anr., [1978] 1 CR 248, Mohammad
Giasuddin v.  State of	Andhra	 pradesh [1978]	 I  CR	153;
referred to.
       (6)   However,  a prison	 system	 may  make  rational
distinctions in making assignments to inmates of vocational,
educational and	 work  opportunities  available	 but  it  is
constitutionally impermissible to do so without a functional
classification system.	Courts cannot  be  critical  of	 the
administration	if   it	 makes	 a  classification   between
dangerous prisoners  and ordinary  prisoners. A	 distinction
between the under trials and convicts is reasonable. In fact
lazy relaxation	 on security is a professional risk inside a
prison. [517 F, (G, 519 B, Cl
       'The petitioner being a foreigner cannot claim rights
under Art.  19. Moreover  he is	 now a convict and is not in
solitary confinement. [519 D]
OBSERVATlON:
       [The Court must not rush in where the jailor fears to
tread. While  the country  may not  make the prison boss the
sole sadistic arbiter of incarcerated
514
human, the  community may  be in no mood to handover central
prisons to  be	run  by	 Courts	 Each  instrumentality	must
function within its province)



JUDGMENT:

ORlGlNAL JURISDICTION: Writ Petition No. 4305 of 1978. Under Article 32 of the Constitution.

N. M. Ghatate and S. V. Deshpande. for the Petitioner Soli J. Sorabjee, Addl. Sol. General and Girish Chandra for the Respondent.

The order of the Court was delivered by KRISHNA IYER, J. A litigation with a social dimension, even in a blinkered adversary system, serves a larger cause than the limited lis before the court. This petition, with non- specific reliefs, is One such.

Sobraj, the petitioner, by the frequency of his forensic com plaints against incarceratory torture and Dr. Ghatate, his counsel by the piquancy of his hortative advocacy of freedom behind bars. have sought to convert the judicial process from a constitutional sentinel of prison justice-which, emphatically, it is-into a meticulous auditor-general of jail cells-which, pejoratively, it is not-although, on occasions, 'thin partition do their bounds divide`. Often, as here, the fountain of confusion in penitentiary jurisprudence is forgetfulness of fundamentals. Once the legal basics are stated, Sobraj, with his disingenuous, finical grievances, will be out of court.

What are the governing principles, decisionally set down by this court in Batra and Sobraj? Has the court jurisdiction to decide prisoners' charges of violation of rights ? If it has, can it meddle with the prison administration and its problems of security and discipline from an 'innocent' distance ? Put tersely, both the 'hands off. doctrine and the 'take over' theory have been rebuffed as untenable extremes and a middle round has been found of intervening when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner and declining where lesser matters of institutional order and man management, though irksome to some, are alone involved.

Contemporary profusion of prison torture reports makes it necessary to drive home the obvious, to shake prison top brass from the callous complacency of unaccountable autonomy within that walled off world of human held incommunicado. Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner's prejudice, this Court's writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law. Then the 515 parrot-cry of discipline will not deter, of security will not scare of discretion will not dissuade, the judicial process. For if courts 'cave in" when great rights are gouged within the sound-proof, sight-proof precincts of prison houses, where, often, dissenters and minorities are caged, Bastilles will be re-enacted. When law and tyranny begins: and history whispers, iron has never been the answer to the rights of men. Therefore we affirm that imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, courts will refuse to recognise the full panoply of Part III enjoyed by a citizen.

This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution. Art. 21, read with Art. 19(1) (d) and (5), is capable of wider application than the imperial mischief which gave its birth and must draw Its meaning from the evolving standards of decency and dignity that mark the progress of a mature society, as Batra and Sobraj have underscored and the American judges have highlighted. Fair procedure is the soul of Art. 21, reasonableness of the restriction is the essence of Art. 19(S) and sweeping discretion degenerating into arbitrary discrimination is anathema for Art. 14. Constitutional kurana is thus injected into incarceratory strategy to produce prison justice. And as an annotation of Art. 21, this Court has adopted, in Kharak Singh's case(I) that expanded connotation of 'life' given by Field, J. which we quote as reminder:

"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 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 communicates with the outer world".

The next axiom of prison justice is the court's continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified lt is a sort of solemn covenant running with the power to sentence.

The U.S. Courts have intensified their oversight of State penal facilities reflecting a heightened concern with the extent to which the ills that plague so-called correctional institutions violate basic rights. points out Edward S. Crowin. (2). Although. the learned author, and.

(1) [1964] I SCR 357.

(2) Supplement to Edward S. Corwin's "The constitution' and What it means Today; 1976 Edn. p. 245.

516

indeed, the decisions show that reliance is placed on the Eighth: Amendment, as we have earlier pointed out. the same. sensitized attention and protective process emanate from the humane provisions of Part III of our Constitution.

Viewed differently, supposing, a court sentences a person to simple imprisonment or assigns him 'B' class treatment and the jail authorities unwittingly or vindictively put him under rigorous imprisonment or subject him to 'C' class treatment, does it not show contempt of the court's authority and deprivation of liberty beyond a degree validated by the court warrant ? Likewise, where a prisoner is subjected to brutality, exploiting the fact that he is helplessly within the custody of the Jail Administration, does it not deprive the prisoner of his life and liberty beyond the prescribed limits set by the court ? Yet again, where conditions within a prison are such that inmates incarcerated therein will inevitably and necessarily become more sociapathic than they were prior to the sentence, is not the court' punitive purpose, charged with healing hope, stultified by the prison authorities ? of course, where a prison practice or internal instruction places harsh restrictions on jail life, breaching, guaranteed rights. the court directly comes in. Every prison sentence is a conditioned deprivation of life and liberty, with civilised norms built in and unlimited trauma interdicted. In this sense, judicial policing of prison practices is implied in the sentencing power. The Criminal judiciary have thus a duty to guardian their sentences and visit prisons hen necessarily. Many of them do not know or exercise this obligation.

Another jurisdictional facet may be touched upon in view of the widely worded relief sought to treat Sobraj 'in a human and dignified manner, keeping in view the adverse effect of` his confinement upon his mental and physical conditions . The penological goals which may be regarded as reasonable justification For restricting the right to move freely within the confines of a penitentiary are now well- settled. And if prisoners have title to Article 19, 21 and 14 rights, subject to the limitation we have indicated, there must be some correlation between deprivation of freedom and the legitimate functions of a correctional system. It is now well-settled, as a stream of rulings of courts proves, that deterrence, both specific and general, rehabilitation and institutional security are vital considerations. Compassion wherever possible and cruelty only where inevitable is the art of correctional confinement. When prison policy advances such a valid goal, the court will not intervene officiously.

517

This overall attitude was incorporated as a standard by- the American National Advisory Commission on Crimine Justice Standards and Goals:-

'..... A rehabilitative purpose is or ought to be implicit in every sentence of an offender unless ordered otherwise by the sentencing court''.(l) The U.S. Supreme Court summed up:
"In a series of decisions this court has held that, even though the governmental purpose be legitimate anti substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the and can by more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving, the same basic purpose."(') But when an inmate is cruelly restricted in a manner which supports no such relevant purpose the restriction becomes unreasonable and arbitrary and unconstitutionality is the consequence. Traumatic ` futility is obnoxious to pragmatic legality. Social defence is the raison of the penal code and bears upon judicial control over prison administration. If a whole atmosphere of constant fear of violence, frequent torture and denial of opportunity to improve oneself is created or if medical facilities and basic elements of care arid comfort necessary to sustain life are refused then also the humane jurisdiction of the court will become operational based on Art. 19 '. Other forms of brutal unreasonableness and anti-rehabilitative attitude violative of constitutionality may be thought of in n penal system but we wish to lay down only a broad guideline that where policies. with a 'Zoological touch', which do not serve valid penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as to frustrate the ability of inmates to engage in rehabilitations. the court is not helpless. However as prison system may make rational distinctions in making assignments to inmates of vocational. educational Land work opportunities available but it is constitutionally impermissible to do sc without as functional classification system. The mere fact that a prisoner is poor or rich, high-

born or ill bred, is certainly irrational as a differential ill a secular socialist high republic'. Since the petitioner charges the jail staff with barbaric and inhuman treatment in prison we are called upon to delineate the broad boundaries of judicial jurisdiction vis a-vis prison administration and prisoner's rights.

(I) "To solve The age-old Problem of crime" Roger Lanphear; J. D. p-19 (2) Ibid pr 21 518 The court is reluctant to intervene in the day-to-day operation of the State penal system; but undue harshness and avoidable tantrums, under the guise of discipline and security, gain no immunity from court writs. The reason is, prisoners retain all rights enjoyed by free citizens except those lost necessarily as an incident of confinement. Moreover, the rights enjoyed by prisoners under Articles 14, 19 and 21, though limited, are not static and will rise to human heights when challenging situations arise. Cooper(1) and Menaka Gandhi(2) have thus compulsive consequence benignant to prisoners.

The petitioner in the present case has contended that barbaric and inhuman treatment have been hurled at him and that intentional discrimination has been his lot throughout. These allegations invited us to examine the limits and purpose of judicial jurisdiction but we have to apply the principles so laid down to the facts of the present case.

Starry abstractions do not make sense except in the context of concrete facts. That is why we agree with the propositions Of law urged by Dr. Ghatate but disagree with the distress and discrimination his client wails about. True, confrontedm with cruel conditions of confinement, the court has an expanded role. True, the light to life is more than mere animal existence, or vegetable subsistence.(3) True, the worth of the human person and dignity and divinity of every individual inform articles 19 and 21 even in a prison setting. True, constitutional provisions and municipal laws must interpreted in the light of the normative laws of nations, wherever possible and a prisoner does not forfeit his Part lII rights. But that are the facts here ?

Charles Sobraj is no longer an under-trial. having to serve two sentence of long imprisonment. He is given all the amenities of .1 'B' class prisoner. He goes on hunger strike but medical men take care of him. Ward I, where he is lodged, gives him the facilities of wards XIll and XIV where he wants to he moved. He has record of one escape and one attempt at suicide and Interpol reports of many crimes abroad. There are several cases pending in India against him. Even so, the barbarity of bat fetters inflicted on him lay a qualmless jail staff was abandoned under orders of this Court. Now. he seeks the other extreme of of coddling as if a jail were a country club or good hotel. Give me finer foreigners as companions. he demands. Don't keep convict cooks and warders as (1) [1971] l SCR Sl2.

(2) [1978] l SCR 248 (3) Mohammed Giasuddin v. State of Andhra Pradeh. [1978] 1 SCR 153 519 jailmated in my cell he rails. Remove me from a high security ward like Ward I to a more relaxed ward like Ward 14 or 13, he solicits. These delicate and genteel requests from a prisoner with his record and potential were turned down by the Superintendent and the reasons for such rejection, based on security, rules and allergy of other inmates to be his risky fellow-inmates have been stated on oath. We cannot be critical of the Administration if it makes a classification between dangerous prisoners and ordinary prisoners. In the present case, the Superintendent swears, and it is undisputed, that the petitioner is not under solitary confinement. We further aver that a distinction between under-trials and convicts is reasonable and the petitioner is now a convict. In fact, lazy relaxation on security is a professional risk inside a prison.

The court must not rush in where the jailor fears to tread. While the country may not make the prison boss the sole sadistic arbiter of incarcerated humans, the community may be in no mood to hand over central prisons to be run by courts. Each instrumentality must sanction within its province. We have no hesitation to hold that while Sobraj has done litigative service for prison reform, he has signally failed to substantiate any legal injury. We, therefore, dismiss the writ petition, making it clear that strictly speaking the petitioner being a foreigner cannot claim rights under Art. 19, but we have discussed at some length the import of Articles 14, 19 and 21 because they are interlaced and in any case apply to Indian citizens. , Petition dismissed.

S.R.					 Petition dismisses.
520